1. The Applicant's visa history in Australia is summarised as follows:

(a) In November 2015, prior to his study visa expiring, the Applicant applied for a Protection Visa.[12] This was refused in October 2017.[13] > > (b) The Applicant appealed the Protection Visa refusal decision, pending which he was granted a Bridging Visa.[14] > > (c) On 2 January 2024, the Applicant's Bridging Visa was cancelled on character grounds. The Applicant asked the Respondent to revoke this. > > (d) Significant delays then occurred in hearing the Applicant's Protection Visa appeal, including because a former Tribunal member resigned.[15] On 17 June 2024, Senior Member Denis Dragovic decided that the Applicant was owed protection and remitted the matter to the Respondent for reconsideration.[16] > > (e) On 9 October 2024, a delegate of the Respondent declined to revoke the cancellation of the Applicant's Bridging Visa. > > (f) On 11 October 2024, the Applicant, who was then serving a sentence of imprisonment at Barwon Prison, asked the Tribunal to review the Bridging Visa non-revocation decision. > > (g) On 20 December 2024, Deputy President Peter Britten-Jones affirmed the Bridging Visa non-revocation decision.[17] > > (h) On 25 February 2025, the Respondent sent the Applicant a notice advising that consideration was being given to refusing his Protection Visa application.[18] The Applicant replied to this through his lawyer in March and October 2025.[19] > > (i) On 29 October 2025, a delegate of the Respondent refused the Protection Visa.[20] > > (j) On 5 December 2025, the Applicant asked the Tribunal to review the Protection Visa refusal decision ('reviewable decision').[21]

2. Section 500(6L) of the Act provides that if the Tribunal has not made a decision on this application within 84 days of the Applicant being properly notified of visa refusal, the Tribunal is taken, at the end of that period, to have made a decision by operation of law to affirm the reviewable decision under s 105 of the Administrative Review Tribunal Act 2024 (Cth) ('ART Act'). These reasons were handed down on 16 January 2026, five working days after the hearing, and in compliance with s 500(6L) of the Act.

1. Section 13 of the ART Act, read together with s 500(1)(b) of the Act, are the sources of the Tribunal's jurisdiction to hear this application.
2. The Tribunal has a broad discretion regarding procedure and must act with as little formality and technicality as a proper consideration of matters before it permits.[22] The Tribunal is also not bound by the rules of evidence and 'may inform itself on any matter in such manner as it considers appropriate'.[23]
3. Section 501(1) of the Act confers a discretionary power on the Minister to refuse to grant a visa if the person does not pass the 'character test' at s 501(6) of the Act.
4. If an applicant fails the character test, the Tribunal must determine whether the discretion under s 501(1) of the Act to refuse the visa should be exercised.[24] The Tribunal is required to consider the available evidence at the time of its decision.[25]

1. Because of the Applicant's convictions in late 2023,[26] he does not pass the character test. The impetus for cancellation is therefore enlivened and the Tribunal must decide whether to exercise the discretion granted by s 501(1) to refuse the visa after applying the Direction to the specific circumstances of the Applicant's case.

1. The Tribunal must comply with Ministerial Direction 110 ('the Direction').[27] Clause 5.1 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'.
2. The following principles at cl 5.2 of the Direction provide a framework within which decision‑makers should approach their task:

(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.

1. 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.[28]

1. The Tribunal has considered the Applicant's Statement of Facts, Issues, and Contentions ('SFIC')[29] lodged on 11 December 2025. The Tribunal has also considered the Applicant's reply to the Respondent's SFIC dated 17 December 2025.
2. The following documents were tendered into evidence:

(a) Documents lodged by the Respondent numbering 668 pages pursuant to s 501G of the Act;[30]

(b) VSYV and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] ARTA 10 (Britten-Jones DP) ('2024 Tribunal decision');[31]

(c) Applicant's three-page statement dated 8 December 2025;[32]

(d) Two-page statement dated 9 December 2025 from a person offering the Applicant employment with a property development company;[33] and

(e) A bundle of documents relating to the company purporting to offer the Applicant employment, namely:

(i) A Joint Federal - NSW Government media release dated 9 April 2025 about the property development project referred to in Exhibit A2;

(ii) Australian Business Number details for a business operated by the author of Exhibit A2 since 4 February 2025; and

(iii) Notices of winding up, appointment of a liquidator, or proposed deregistration relating to other businesses operated by the author of Exhibit A2 from the Federal Court and Australian Securities and Investments Commission.[34]

1. The Applicant and author of Exhibit A2 were the only witnesses called.

1. At the commencement of his evidence the Tribunal informed the Applicant about his privilege against self-incrimination and is satisfied he understood this. He gave evidence under affirmation, in English, and adopted Exhibit A1 as true and correct.
2. The Applicant's claims are almost entirely self-reported. This includes about past study, business activities, rehabilitative progress, and relationships.
3. The Applicant's evidence centred on the positive changes he has made since being arrested. This includes after being diagnosed with Attention Deficit Hyperactivity Disorder ('ADHD') and Post-Traumatic Stress Disorder ('PTSD') in 2024.[35] When asked by Ms Banerjee what the key differences are in his life now compared to 2020, the Applicant said he has come to realise that 'lots of things are not worth fighting over'. He referred to 'psychological conversations' in Barwon Prison and medications prescribed to him. He claims the coping strategies he has learned in custody will assist him in future.
4. A feature of the Applicant's evidence is inconsistency between his documentary and oral claims, particularly relating to his crimes. In documents advanced for two Tribunal hearings the Applicant variously accepted responsibility for his crimes, expressed 'deep regret' for the harm he caused, and claimed to have developed insight from the consequences of his conduct.[36] The 2024 Tribunal decision, however, notes that he disowned written submissions advanced by Refugee Legal and denied 'offending conduct except for a traffic offence'.[37] When asked about this the Applicant insisted that his evidence to the first Tribunal hearing was to the effect that he respects the Court's findings, but has now lodged an appeal to challenge his convictions and sentence. He equivocated when stating: 'if this offending has happened, it's not going to happen again'.
5. In the current hearing the Applicant claimed to 'respect' the court's decisions while concurrently disagreeing with essential facts that underly his convictions or questioned the conduct of police and others. Some examples follow:

(a) The Applicant was asked about his current evidence regarding weapon possession offences, which is to the effect that he was found by police with a 'rusty replica revolver by a client for the purpose of sandblasting and converting it into a pen holder'.[38] This is different to a police interview in which he is noted to have admitted 'the firearm was in his possession after he had been threatened by a customer' and intended to produce it if the customer returned.[39] The Applicant claimed to have been 'making a joke with the detective'. He disagreed with Ms Barras-Miller that this evidence is implausible and stated that no 'gunpowder' or 'bullets' were found by police during the execution of a search warrant. > > (b) In terms of his 2023 convictions, the Applicant was challenged about the claim that his dishonesty offences 'involved low value items...necessary for his work'.[40] He was referred to sentencing remarks stating that stolen items included a van, truck, wallet, and horse float.[41] The Applicant claimed his dishonesty convictions were based on 'mute video camera' (sic) recordings without being given 'the full brief' of evidence. He claimed not to have been given the opportunity to read 'statements' against him. The Applicant questioned the validity of evidence given by the truck owner and referred to the assignment of a 'legal aid lawyer' as contextually relevant to his court outcomes. The Applicant claimed the wallet came into his possession while doing 'a job for a car rental company' and that anything found in the vehicles was placed outside his workshop for collection by the rental company. He claimed detectives did not properly assess whether the cards in the wallet were misused yet he was found guilty of doing so. In relation to the horse float, the Applicant claims he legitimately purchased it for $550 but could not find the receipt. When challenged by Ms Barras-Miller that the facts of his conviction contradict this, the Applicant claimed he was not present in court, the evidence presented was from a 'mute video camera' (sic), and his request for a jury trial in the County Court was denied. > > (c) In terms of his conviction for attempted arson, the Applicant was referred to the sentencing remarks and other reports relating to this offence.[42] He again claimed to 'respect the court's findings' and to 'accept the conviction'. Ms Barras-Miller asked the Applicant why he attended the house of a former girlfriend he had not seen for approximately seven years and threw a flaming Molotov cocktail at her door in the early hours of the morning. The Applicant said he was unwilling to answer because of an appeal he has lodged in the Supreme Court of Victoria. He initially claimed the appeal was lodged about four months ago and the Supreme Court acknowledged this. The Applicant also said he had provided this information to his lawyers. The Applicant was referred to the 2024 Tribunal decision that states his appeal was struck out in the County Court in 2024[43] but insisted he had lodged an appeal. In subsequent evidence, the Applicant variously stated he withdrew an appeal against conviction some time ago, lodged another appeal in August 2024, and was asked about four months ago by the Supreme Court to provide further documents. In response to a question from the Tribunal to the Applicant's lawyers, Ms Banerjee initially stated there was a 'recent initiation of that appeal' for which formal confirmation would be sought. During closing submissions, however, Ms Banerjee conceded that an appeal had not commenced but the Applicant intends to. > > (d) When asked if he accepted that the victim of the attempted arson offence suffered adverse consequences, the Applicant again claimed he 'could not comment on that' because of his appeal, but said he 'wished to give the Tribunal all the sureties that it is not [his] intent to retaliate.' When pressed, the Applicant said he was only shown 'broken glass' on the wall of the victim's home by police and claimed that her 'first statement points the finger at someone else'. His claimed appeal is to the effect that the attempted arson was committed by someone else. The Applicant believes the magistrate's reference to the attempted arson intending to 'inspire fear and terror' in his victim[44] is akin to 'putting a terrorism charge against [him]', which he believes is 'overkill' and led to an excessive sentence. > > (e) The Applicant was referred by Ms Barras-Miller to an Assessment Report by Forensic Intervention Services ('FIS report') dated 3 October 2024. He is noted to have 'denied all aspects of his index offence', claimed he was 'never at the locations' and did not 'throw any Molotov cocktails (filled with accelerant and a fuse) however stated, "if he wanted to, he would blow up more than what was said"'.[45] The Applicant accepted he made this comment but said it was intended as 'a joke...in the context of an excessive sentence'. He disagreed with Ms Barras-Miller that it was implausible the response recorded by the record author was about a remark intended as a joke.

6. The Applicant disagrees with the FIS assessment that he constitutes a moderate risk of general violent reoffending under the Violence Risk Scale ('VRS')[46] and is also a moderate risk of committing future intimate partner violence as determined under the Spousal Assault Risk Assessment Guide ('SARA').[47] He claims that the conditions he intends to impose on himself, such as 'GPS monitoring' (sic), and not leaving a Canberra work site, where he will be 'monitored' by the company chairman, is such that there is no risk of him reoffending.
7. In terms of driving offences, the Applicant agrees he has never held an Australian licence. He claims, however, he did not need to obtain one because he was not a permanent resident and could continue driving on his international licence. It was put to the Applicant that during his driving-related offences between 2018 and 2021 it should have become clear that an Australian licence was required. He conceded some police and a magistrate in 2020 told him he must obtain a Victorian licence, but he was uncertain about this because other police said he did not need to.
8. In terms of other conduct:

(a) The Applicant referred to 'on and off' use of illicit drugs[48] and agreed this included opium, cannabis, and methylamphetamine.[49] The latter is known by the street name 'ice', which the Applicant said he used to 'stay awake for jobs'. He accepts that he told Corrections Victoria staff about being 'easily provoked when under the influence of drugs and...his anger was a lot worse when coming off drugs'.[50] The Applicant referred to clean urinalysis results in prison[51] and said the Tribunal can be confident he will not relapse if released. > > (b) The Applicant was asked about custodial incident reports,[52] several of which were presented to him for comment. He accepts that he has engaged in aggressive, abusive, and violent behaviours in custody that resulted in him being subdued by officers, taken into high care accommodation, and to lose privileges. The Applicant claims he was 'set-up' by custodial staff during one incident and attributed other misconduct as the fault of others. This includes because he was not provided with prescribed medications or was given 'irrelevant, power-tripping orders' that caused him to resist. When asked by Ms Banerjee about his relationship with other detainees, the Applicant responded: 'If they don't push my buttons or give me a hard time for no reason, I won't react'. The Applicant's evidence about specific custodial reports is summarised as follows: > > > (i) The Applicant accepts he diverted prescribed medication or handled it in a way that breached custodial rules in both prison and immigration detention. > > > > (ii) The Applicant accepts he flipped 'a pool table in a common area' and made verbal threats this was 'just the start'.[53] He claims to have done so because custodial staff refused to let an ambulance enter to pick up an unwell detainee. The Applicant agrees he was placed in 'High Care Accommodation' because of this conduct and 'might have' continued making verbal threats about causing damage and initiating further incidents.[54] > > > > (iii) The Applicant agrees he and another detainee struck each other[55] but claimed this was just 'kid's play' and did not warrant intervention by an Emergency Response Team. > > > > (iv) The Applicant recalled an incident where he involved himself when another detainee punched and kicked officers,[56] during which force was used to remove the Applicant from the incident location. The Applicant claimed he was trying to stop the incident. > > > > (v) The Applicant recalled an incident where he was asked by officers to return to his room, reportedly became upset with them, recorded them on his mobile telephone, made threats, and reportedly stated: > > > > Come next time and you will see. You piece of shit, tell your manager FUCK OFF...I don't want to talk to a power-tripping Nepalese Dog; you may leave. You are embarrassing yourself and your kind, you power-tripping dogs...I don't know what's in there, maybe one day there will be your head in it or one day mine or both of our heads in there, either way I'll be happy. > > > > (Emphasis in original). > > > > The Applicant said this was an incomplete description of what occurred but agrees he 'might have' made these comments. He claimed this is a 'small thing' they 'are making a big thing out of'. > > > > (vi) The Applicant recalled an incident where he abused female custodial staff but denies calling one officer a 'bitch'.[57] > > > > (vii) The Applicant accepts an incident occurred on 5 April 2025 where he scaled a roof and kicked a CCTV camera off a bracket, causing the camera to fall to the ground.[58] > > > > (viii) The Applicant accepts he was involved in an incident during 22-23 April 2025 where he reportedly engaged in abusive and aggressive behaviour towards officers.[59] He is also reported to have shouted 'where is the bitch' several times regarding a female staff member. The Applicant said he was 'angry at staff' but could not recall what he shouted during this incident. He linked this conduct to a claimed 'set-up' by custodial staff. > > > > (ix) The Applicant contrasted frequent incidents of misconduct in immigration detention with what he claimed was more compliant behaviour in prison. He was referred to prison reports, however, that include reference to 36 strips of illicit buprenorphine being found in his cell in January 2024, and other medications found in his possession in other prisons.[60] The Applicant recalled being charged with possessing buprenorphine, but said this was dropped. In terms of other medications, the Applicant claimed these were prescribed and he removed medication from weekly packs, which he knew was in breach of custodial rules, to enable easier access when it suited him. > > (c) The Applicant stated without corroboration that during the last 3-4 months his behaviour has improved, such that he was moved to a lower security environment.

9. The Applicant was asked about his claimed decade-long relationship since 2014 with a woman who the Tribunal will refer to as 'Ms DD'. He contextualised this as 'volatile' and 'on-off'. When asked about the finding in the 2024 Tribunal decision that he had no current partner,[61] the Applicant claimed he was still in contact with Ms DD at this time but did not consider her his partner. The Applicant said Ms DD is a drug user who created 'problems' for him, such that he chose 'to stay away at times'. He said fights between them occurred that would 'get out of control' because she uses ice for 'leisure', whereas he used it for work. The Applicant claims he prevented Ms DD from drink / drug driving in the past. When put by Ms Barras-Miller that having Ms DD in his life did not sound like a stable, supportive influence, the Applicant insisted their relationship stops him 'from being an aggressive person'. He referred to times, however, when he chose not to live with her, 'did not want her support', and 'preferred to be homeless'.
10. When taken by Ms Barras-Miller to his claim in a 2015 Protection Visa application that he separated from a woman in Canada on 1 July 2015,[62] the Applicant agreed he was living in Canada, but stated he was never in a relationship there. He thought this was a mistake by the 'legal aid lawyer' who completed his Protection Visa application. The Tribunal notes, however, that the 'No' box is checked in this application to the question: 'Did you receive assistance in completing this form'.[63] A box on the same page is checked to require written communication to be sent to the Applicant rather than to a representative.[64]
11. The Applicant was asked by Ms Barras-Miller about a statement from a woman the Tribunal will refer to as 'Ms EE'.[65] Ms EE states she met the Applicant in April 2022 through the dating application Tinder, following which they commenced a relationship and started living together. This seems to conflict with the Applicant's claim that prior to imprisonment in August 2022 he was living with Ms DD and sharing family responsibilities, including for her two children.[66] The Applicant's evidence changed at this point to the effect that he only lived with Ms DD from February to April 2022, following which he moved out because Ms DD's ice use became a 'bit too high'. The Applicant agreed with Ms Barras-Miller that his relationship with Ms EE represented 'cheating' on Ms DD.
12. If allowed to remain in Australia, the Applicant intends resuming his relationship with Ms DD, claiming she is 'the only genuine woman' he has encountered. It is unlikely they will live together, however, because he intends 'getting away from Melbourne' and working at a property development site in Cooma NSW.
13. The Applicant claims to have a continuing 'good relationship' with Ms DD's eldest child, who he claims is autistic and suffers ADHD. He said the child left school 'a long time ago' and started working with him prior commencing a trade apprenticeship about three years ago. The Applicant said this child is now an adult of 19. He believes Ms DD's youngest child is around 16. The Applicant said he doesn't 'have much of a relationship' the youngest child who enjoys gaming, computers, and attends 'Sunshine Grammar'. When asked to elaborate he said: 'it's not a bad relationship but we are not good with each other'. The Tribunal subsequently noted from open-source material there is no Sunshine Grammar School in Melbourne. There is also no independent corroboration for the Applicant's claim that the children's biological father pays some child support but does not play any parental role.
14. When asked why there is no statement from Ms DD or her children, the Applicant said he chose not to involve them because they have already been exposed to stressful 'court matters' for the last 'three-and-a-half years'. The Applicant disagreed with Ms Barras-Miller that he is falsely relying on a continuing relationship with Ms DD to improve his position in the current hearing. The Applicant claimed he sent a statement from Ms DD to his current lawyers about three months ago. In response to a question from the Tribunal, Ms Banerjee said a statement from Ms DD appears to have been prepared for revocation submissions but was not tendered in the current proceeding because of the Applicant's instructions not to involve her.
15. The Applicant was referred to a summary of family violence incidents and orders taken out against him in the past as detailed in the FIS report.[67] The Applicant accepted the accuracy of this report and agreed he remains subject to family violence orders for some years. He claimed, however, that he consented to and has complied with these orders.
16. The Applicant agreed that he placed a tracking and listening device in the car of a former partner.[68] He claimed however, that the former partner agreed, and his conduct was partly for her 'safety'. The Applicant said he wanted to know where she was so she could restore his 'trust' after he 'confronted her about a couple of matters'. The Applicant disagreed with Ms Barras-Miller that it was implausible the ex-partner agreed to tracking and listening devices.[69] He stated that while he previously considered such conduct normal, he no longer does after being imprisoned and doing 'relationship courses'.
17. In terms of rehabilitation, the Applicant was asked by Ms Barras-Miller about the claim in his most recent statement that since incarceration he has:

...engaged extensively in rehabilitation, including psychological therapy, medication for PTSD and ADHD, and programs addressing substance use and behaviour management'.... > > ... > > I have completed numerous courses...I have engaged in weekly psychological therapy and complied with medication for PTSD and ADHD. I have participated in alcohol and other drug programs and have remained committed to rehabilitation.[70]

18. The Applicant claimed this is accurate and referred to 'psych recommended courses'. He was asked about the absence of corroboration for these claims and references in the 2024 Tribunal decision to 'no documentary evidence of any other courses aimed at rehabilitation', the claim he had lost 'relevant certificates', and doubts expressed by the Deputy President about the Applicant's rehabilitative claims.[71] The Applicant said he may have some 'scanned documents' and would 'try to bring them in'. No subsequent submission was made, however, to lodge further documents with the Tribunal. When put by Ms Barras-Miller that the absence of corroborating documents suggested he had not done courses, the Applicant insisted he did so regarding the use of ice and respectful relationships.
19. The Applicant recalled treatment recommendations made by clinical psychologist Ms Alison Mynard in a report dated 5 May 2024, which was commissioned by his then lawyer.[72] When asked if he has undertaken any of these, the Applicant claimed: 'they put me on anger management in detention' but could not recall the details.
20. The Applicant said the chairman and project manager of a property development company contacted him after hearing good things about his work on the 'Melbourne Tunnel'. He recalled the chairman visiting him in prison and offering him work as a breakdown mechanic.[73] The Applicant accepts there is no corroborating evidence to support his claims about work on the Melbourne Tunnel or from other employers.

1. The author of Exhibit A2 gave evidence under affirmation and in English. He adopted Exhibit A2 as true and correct. He said the business he operates ('[redacted] Development Group Pty Ltd) centres on civil works to develop land purchased at auction from Governments. He intends employing the Applicant on a specific development project described in Exhibit A2 as a subdivision comprising 177 homes and a $23.6 million joint investment from the Federal and NSW governments ('Cooma project'). The witness said he heard about the Applicant from a friend in Malaysia to the effect that he is 'very talented' and 'knows a lot about machinery'. He then visited the Applicant in prison to offer him a job on the Cooma project. When asked about the reference in his statement to 'several' interviews with the Applicant,[74] the witness could not recall how many there were He intends sending the Applicant to the Cooma Project first and perhaps other breakdown work in a different location. When asked why the Applicant's role is 'critical' for a project already underway, the witness said other staff perform comparable work, but the Applicant's participation will enable faster project completion.
2. The witness was asked about the corporate structure of his company and evidence that previous companies he operated were placed in liquidation or deregistered. His evidence about this was somewhat vague. He accepted that a company he previously operated called Cooma Projects Pty Ltd was wound up in insolvency by the Federal Court in late 2025.[75] He also accepted that the company now offering the Applicant employment on the same Cooma project was only registered on 4 February 2025. When referred to evidence that a Queensland-based development company instead of his company was awarded the tender for the Cooma project[76] the witness said he is unaware of this. He then claimed to have been awarded a comparable tender based on the same number of homes and the same joint investment from the Federal and NSW Governments in a subdivision on the opposite side of the road. The witness was directed by the Tribunal to provide documentary corroboration of this claim, which he stated would be 'no problem' by the following morning (7 January 2026). Nothing was received on 7 January from the Applicant's lawyers and, in response to an enquiry from the Tribunal, later that afternoon, advice was to the effect that the promised information would be provided by 8 January 2026. Nothing was received by midday on 8 January 2026, which caused the Tribunal to resume the hearing later that day. What then occurred casts doubt on the veracity of the evidence received from the author of Exhibit A2, which is later discussed under Impact on Australian business interests.

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 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:

(i) violent and/or sexual crimes;

(ii) crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;

(iii) act 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:

(i) 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;

(ii) 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;

(iii) 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));

(iv) 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 197 A 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.

Tribunal consideration: The nature and seriousness of the conduct

1. The Applicant distinguishes between the harm caused by further violent offending, which he accepts is 'very serious', compared to a repeat of further property or driving offences, which he submits would be of 'lesser seriousness'.[77]
2. The evidence discloses the Applicant committed multiple driving infringements between 2018 and 2021[78] despite never holding an Australian licence.[79] These include speeding and unlicenced / unregistered driving. Some of this was dealt with in May 2020 through findings of guilt without conviction, a fine of $1000, and a seven-month adjourned undertaking.[80]
3. As a person previously subjected to a Family Violence Intervention Order ('FVIO'),[81] the Applicant was categorised as a person prohibited under the Firearms Act 1996 (Vic) from possessing a firearm. In April 2020, he was found in possession of an unregistered handgun during the execution of a warrant under s 465 of the Crimes Act 1958 (Vic).[82] The Applicant is recorded as telling police he kept the handgun because of a threat from a customer.[83] In the current proceeding, however, the Applicant claims the weapon was a 'rusty replica revolver' from 'a client for the purpose of sandblasting and converting it into a pen holder'.[84] His claims about this inconsistent evidence were earlier summarised. In any event, the Applicant was convicted of firearms offences that also constituted the commission of an indictable offence while on bail. He subsequently failed to answer bail. The Court imposed a 12-month CCO and ordered him to complete 100 hours of community work. It was later noted he 'essentially took no part in completing the order or attempting to fulfil...obligations under the order'.[85] The Applicant was later convicted of non-compliance with the CCO.
4. In late-2023, the Applicant was convicted of 20 offences including attempted arson and multiple theft / dishonesty charges.[86] The total effective sentence imposed after concurrency implications were calculated was two years' imprisonment. The Court found:

(a) The attempted arson was 'a very serious example for an offence of this nature', and was committed at the home of a woman the Applicant was in a relationship with some seven years earlier.[87] > > (b) The Applicant's relationship with the victim ended when she obtained a FVIO against him and he had not seen her since.[88] > > (c) The Applicant threw a flaming Molotov Cocktail at the victim's house, where she lived alone. This occurred in the early hours of the morning. [89] > > (d) The Applicant's intention could only have been to 'inspire fear and terror' in the victim and his motivation was 'revenge' in the context of family violence.[90] > > (e) The Applicant's conduct had a 'significant impact' on the victim, including 'post-trauma symptoms', counselling, and referral to a psychiatrist.[91]

5. The Applicant advanced the following in documentary submissions:[92]

... While the conduct was serious, the ultimate damage consisted of burn marks to the porch and brick walls at the front of a house. No one was injured, and the prosecution had conceded there was insufficient evidence for an additional charge of reckless conduct endangering serious injury. The offence carries a maximum penalty of 10 years' imprisonment, but the summary charge and sentence indicate the offending was not at the higher end of severity.

6. In terms of the Applicant's dishonesty offences, the Court said they were committed with a 'certain degree of cleverness' and a 'degree of breach of trust' given they were committed against people who employed or tried to assist the Applicant.[93]
7. In terms of other conduct and despite no drug-related convictions, the Applicant concedes he has used illicit drugs such as ice, opium, and cannabis.[94] His written submissions state that 'drug use' is contextually relevant to his crimes.[95] The 2024 FIS report states:

Substance misuse was identified by [the Applicant] to be a treatment need, he continued to report he was easily provoked when under the influence of drugs and reports his anger was a lot worse when coming off the drugs. Substance use was identified to be a factor in [the Applicant's] current offences, he continued to state that he does not believe he acts impulsively and expressed he took polysubstance to manage a stressful job and to meet deadlines. [The Applicant] expressed he never took drugs to feel better, rather a means to an end. [The Applicant] identified he would take drugs to stay awake for longer periods of time to complete work demands he recognised when he was coming off the drugs, he would feel irritable, and his nightmares would increase and become more intense which made him angry often. [The Applicant] identified he and his current partner would use substances together expressing she "has a drug problem". > > (Emphasis added.)

8. In submitting that the Applicant was an unacceptable risk of being granted bail following the attempted arson and other charges, police noted he provided multiple residential bail addresses that 'weren't correct, were vacant or were linked to persons of unsavoury character'.[96] It is noteworthy that one of the latter is Ms DD.
9. Records in evidence refer to the Applicant's involvement in numerous incidents of custodial misconduct,[97] including abusive, aggressive, disruptive, threatening, or violent behaviours. His evidence about this was earlier summarised. During closing submissions Ms Banerjee submitted that the environment in immigration detention is different to prison where the Applicant did not have the 'same history'. Reference was made to the Applicant's evidence about not having comparable work, learning opportunities, routine, or support as explaining his 'quite unique responses to the detention environment'.

Tribunal findings: The nature and seriousness of the conduct

1. The Tribunal does not accept the Applicant was unaware he needed to obtain an Australian driver's licence. [98] This includes because his driving offences traverse several years and it is implausible this requirement escaped him or that he was confused by conflicting advice from police. Some of his driving-related conduct, such as exceeding speed limits of 100 - 110kph, have the potential to cause death, serious injury, and /or financial harm to other road users or pedestrians. Driving an unregistered vehicle while unlicenced also has the potential to cause financial harm. His conduct while driving is collectively serious. No weight is placed, however, on the driving-related findings against him in May 2020, for which the Court elected not to record convictions.
2. Significant weight is placed on the available sentencing remarks. To the extent the Applicant's current evidence conflicts with the essential basis of judicial findings against him, it is impermissible to impugn the latter.[99] For example, the Tribunal prefers the facts of his convictions for weapon possession offences to his current revisionist claims. The Tribunal does not accept the Applicant has lodged an appeal relating to his 2023 convictions or sentences. The Court's decision currently stands as a final judgement of these crimes.
3. In terms of cl 8.1.1(1)(a) of the Direction, this does not limit the range of conduct that is considered serious or very serious. Attempted arson[100] is undoubtedly a very serious, dangerous, and violent crime, irrespective of the property damage caused. The Tribunal found aspects of the Applicant's evidence about this to lack insight. Uncontrolled fire has the potential to cause death, serious physical or psychological injury, or financial harm and disruption. The attempted arson constitutes family violence within the meaning of cl 4(1) of the Direction because it was committed against a woman the Applicant had an intimate relationship with. In terms of cl 8.1.1(1)(d) of the Direction, the Tribunal does not accept the Applicant's claim no one was injured.[101] Injury can be more than physical and the victim's suffering is apparent from her statement to Victoria Police and the sentencing remarks.[102]
4. The Applicant has been convicted of 19 dishonesty offences which are collectively considered serious. So is his breach of conditional liberty through further offending while on bail or under a CCO. Such conduct reflects a disregard for judicial orders.
5. Custodial dispositions are a last resort.[103] A total effective sentence of two years in prison is considerable regardless of where it sits in the context of a statutory maximum.[104]
6. In terms of cls 8.1.1(1)(e)-(f) of the Direction, the Applicant has offended frequently and there is a trend of increasing seriousness. The cumulative effect of his persistent offending has adversely impacted multiple victims.
7. In terms of other conduct, the Federal Court has held it is not just crimes but all past conduct that may be relevant to assessing character and risk.[105] The Applicant has used illicit drugs while living in Australia. His frequent and persistent custodial misconduct also weighs against him. The Applicant claims to have been 'set-up' by officers for one incident, but there is no persuasive evidence that multiple authors of contemporaneous reports, over an extended period, recorded other than what was observed. The Tribunal prefers these reports to the Applicant's revisionist claims, aspects of which came across as self-serving. This includes because he agreed most incidents he was taken to occurred as claimed. These reports enable a reliable conclusion that the Applicant has engaged in abusive, aggressive, threatening, violent, and other non-compliant behaviours, resulting at times in force being applied by officers, segregation, closer supervision, or loss of privileges.
8. In terms of the weight given to custodial records, the Tribunal is mindful of Federal Court authority about the limits of such material.[106] The documents are routinely obtained under summons but do not assume the status of evidence until admitted. The Tribunal is not bound by the rules of evidence and although these records may not have been substantiated in court, there is nothing preventing the Tribunal from considering them as 'other conduct' under cl 8.1.1(1) of the Direction. Procedural fairness must be observed, however, by testing the reliability of documents during questioning, as occurred in this proceeding.
9. The Applicant's crimes and other misconduct reflect a concerning disregard for Australian laws, the rights of others, and custodial rules. The totality of his conduct is very serious.

Tribunal consideration: 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 the 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:

(i) information and evidence on the risk of the non­citizen re-offending; and

(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

(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[107] 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'[108] of risk taking into consideration the nature of any harm and its probability. In Guo,[109] the High Court held that past actions can legitimately help predict future behaviour, but this is an uncertain guide. Depending on an offender's 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'.[110] Maxwell P and Weinberg J have observed that recidivism assessments are best based on expert input:[111]

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. In documentary submissions, the Applicant claims that in June 2024 there was a finding he 'is not a person who is considered to be, on reasonable grounds, a danger to Australia's security or a danger to the Australian community having been convicted of a "particularly serious crime'. This seems to be a reference to disentitling criteria at ss 36(1C) and 36(2C) of the Act, which enable the refusal of a protection visa to a person who 'poses a danger to Australia and its people'.[112] A person is taken not to satisfy this criteria if a decision maker considers on 'reasonable grounds'[113] that the person, 'having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community'.[114] This is of questionable relevance to the current proceeding, which instead turns on whether to exercise the discretion granted by s 501(1) to refuse the Applicant's Protection Visa. This is different to risk considered in the context of a s 36(1C) decision.
2. In terms of the Applicant's claimed remorse and acceptance of responsibility for convictions, aspects of his oral testimony cut across this. The Court found in late 2023 he did not display 'any remorse whatsoever' for the attempted arson, which fell 'into a category where only a term of imprisonment [rather than a combination sentence was] appropriate'.[115] Corrections Victoria noted the following in the 2024 FIS report:

According to [the Applicant's] self-report of his index offence, he reported that he was never at the locations, nor did he throw any Molotov cocktails (filled with accelerant and a fuse) however stated, "if he wanted to, he would blow up more than what was said".[116]

3. The 2024 Tribunal decision refers to the Applicant advancing the following narrative in a Statutory Declaration:

I am now aged 39 and I have had time to reflect on my past criminal offending. I accept responsibility for my criminal convictions, and I am remorseful about my offending behaviour. > > I recently decided to withdraw my appeal of the crimes for which I was convicted... This demonstrates my increased insight into my criminal offending behaviour and my remorse. > > While not an excuse, but an explanation, a lot of my criminal offending occurred in the context of experiencing homelessness, drug misuse issues, and unbearable symptoms of then undiagnosed mental health conditions. [117] > > (Emphasis added)

4. In the 2024 Tribunal decision, [118] however, the Applicant's oral evidence was noted to differ from his Statutory Declaration and submissions advanced on his behalf:

30. The letter from Refugee Legal dated 6 September 2024 restated that the applicant did not dispute the offending conduct for which he was convicted and that he appreciates the severity of his offending behaviour which included 'throwing a Molotov cocktail at the brick wall at the front of a house where a former partner, of some seven years earlier, was residing.' > > 31.The Applicant now disowns these comments and denies the offending conduct except fora traffic offence. He denied the attempted arson and told the Tribunal that he was not present at the house where the attempted arson took place. He says that he will now pursue appeals against the convictions despite the record showing that his appeal from the Sunshine Magistrates Court convictions was struck out in the County Court... > > 32....It is of great concern that the Applicant now denies the convictions in the Sunshine Magistrates Court which arose from a contested hearing after a not guilty plea. There is no adequate explanation for why the Applicant signed a statutory declaration accepting responsibility for his convictions and now contradicts that declaration. I do not accept the Applicant's explanation that he made the declaration because his lawyers told him "that this was the best way." Under cross examination, he accepted that he read the statutory declaration before signing it, but now disagrees. > > ... > > 38. The Applicant has failed to express any genuine remorse for his offending, although he did say that he would not offend in the future and that he wanted to concentrate on his work if released. > > 39. It is concerning that the Applicant disowns the statements made in the statutory declaration in September this year. The effect of denying his most serious offending is that his statements of remorse in his statutory declaration now have no foundation. The sentencing magistrate on 10 November 2023 noted that the Applicant had not displayed any remorse whatsoever for the offending. Nothing much has changed. At the Tribunal hearing, the Applicant expressed limited regret about modifying the firearm and "keeping the vehicles" but he disputed the gun charges and the attempted arson charge. I find that the Applicant has expressed no genuine remorse about the offending and he has showed no insight into the harm caused by his offending.

5. In Exhibit A1 for the current hearing, the Applicant stated:

I take full responsibility for my actions and deeply regret the harm they caused...I now fully understand the seriousness of my past conduct and the importance of complying with Australian laws. > > (Emphasis added)

6. In oral testimony, however, he continues to cavil with judicial findings and to have lodged an appeal, including because an earlier statement from the victim is purportedly to the effect that someone else committed the attempted arson. The Applicant also claims some comments attributed to him in formal reports were a 'joke'. The Tribunal found these aspects of his evidence unpersuasive given how his claims are recorded. The changing nature of the Applicant's evidence cuts across the persuasiveness of his claims about remorse, acceptance of responsibility, insight, rehabilitative progress, and risk. His current revisionist claims about weapon possession, for example, conflict with the essential basis of judicial findings and are rejected. The Tribunal similarly rejects the claim that vehicles, a horse float, and a wallet containing victim's banking, identification, health and transport cards, are 'low value items' the Applicant believed were necessary for his work.[119] This again conflicts with the essential basis of his dishonesty convictions.
7. The Applicant claims to have turned to illicit drugs as a way of coping with undiagnosed symptoms and staying awake during periods of intense work. He contends that since receiving proper diagnosis and treatment he can better regulate his symptoms and is either 'not at risk of reoffending'[120] or constitutes a 'low risk'.[121] There is no expert assessment about the status of the Applicant's illicit drug use, current mental health, or recidivism risk. In terms of the available expert opinion:

(a) The Tribunal has considered a report dated 5 May 2024 from clinical psychologist Ms Alison Mynard, which was commissioned by the Applicant's lawyer.[122] This does not include a risk assessment and relates to the Applicant's mental state and diagnosis. Ms Mynard concluded that the Applicant met the diagnostic criteria for ADHD, PTSD and that the two conditions 'exacerbate each other'.[123] Treatment recommended by Ms Mynard[124] is yet to be meaningfully advanced by the Applicant. > > (b) The 2024 FIS report found that the Applicant's constitutes a moderate risk of general violent reoffending under the VRS[125] and a moderate risk of committing future intimate partner violence under the SARA.[126] He was also noted to have unmet treatment needs for which recommendations were made.[127] This assessment was based on a file review and two face-to-face interviews totalling 3.5 hours.[128] > > (c) The Applicant's riposte is that the VRS is unreliable for marginalised cohorts and recent research into the SARA 'suggests that structured professional judgment guidelines can produce disparate results across racial groups, which may reflect genuine differences in the likelihood of recidivism'.[129] A further source is cited to the effect that a valid result under the SARA requires, 'the victim...to take part in interviews'.[130] Most of the journal articles relied on by the Applicant do not refer to the VRS or SARA. Several focus on bias in a United States context based on the likelihood of black males being imprisoned compared to white males, or the potential for black males to 'receive higher risk scores on actuarial instruments than a White offender and thus a biased miscalculation as high risk'.[131] The article titled 'Racist Algorithms or Systemic Problems' similarly focuses on the general issue of bias in actuarial instruments. The article titled: 'Back to the Future: The Influence of Criminal History on Risk Assessment' discusses the extent to which reliance should be placed on criminal history in predicting recidivism risk in a US context. Only two journal articles reference the SARA. One is in the context of racial disparities in criminal justice outcomes between indigenous and non-indigenous persons in Canada.[132] The article concludes: > > Indigenous individuals were assessed as demonstrating more risk factors and were more likely to be rated as high risk, even after controlling for summed risk factor totals and prior convictions. They were also more likely to recidivate and to have a history of at least one reported act of violence that did not result in formal sanctions. The results suggest that structured professional judgment guidelines can produce disparate results across racial groups. The disparities observed may reflect genuine differences in the likelihood of recidivism, driven by psychologically meaningful risk factors which have origins in deep-rooted systemic and contextual factors. > > (d) The other article referencing the SARA was accepted for publication in 2014 and relates to social worker experiences.[133] It provides summary information on four risk assessment methodologies, including the SARA. The article states the following about the SARA, which does not support the contention advanced by the Applicant that valid results require victim participation in interviews: > > Spousal Assault Risk Assessment > > The Spousal Assault Risk Assessment (SARA) was developed in Canada and has been tested for predictive validity in Canada, Spain, Sweden and the USA. The SARA has also been used in Australia, England, Wales, Scotland, Norway, Germany, the Netherlands, Hong Kong and Singapore. It is intended for use within the criminal justice system...When properly applied, a skilled evaluator (i.e. a clinician with graduate-level credentials and specific training in scoring the SARA) reviews the results of a twenty-item questionnaire and uses structured professional judgement to assign a summary risk rating (low, moderate or high) to an offender's risk of recidivism. ...To complete the SARA, it may be necessary to conduct interviews with both the offender and the survivor, and to gain access to criminal and clinical files; this process may be time-consuming. > > (Citations removed, emphasis added). > > (e) The Respondent advances the following submissions by Corrections Victoria to Australia's Royal Commission into Family Violence:[134] > > 3.1 Corrections Victoria's Use of the SARA > > In June 2011, [Offending Behaviour Programs Branch ('OBP')] conducted a Family Violence literature review and recommendations paper. One of the outcomes of this review was that OBP implement the Spousal Assault Risk Assessment (SARA) tool "as a robust assessment schedule and case formulation aid for family violence offenders". Since 2011, OBP has incorporated the use of the SARA tool within the OBP Service Delivery Model, specifically targeting the assessment and management of Family Violence Offenders. The SARA presents a framework within which to assess the risk of future violence in people arrested for spousal assault. More specifically, it was developed in Canada and consists of 20 static and dynamic risk factors, which are designed to assist in the prediction of both intimate partner violence and lethality. > > 3.1.1 Strengths of the SARA > > The recommendation to implement the SARA within the OBP service delivery model was based on a number of strengths that the tool exhibits. These strengths are detailed below: > > • The SARA is the most common risk tool for Family Violence Offenders • It is used in at least 15 countries and has been translated into 10 languages > > • Unlike other intimate partner violence risk tools, the SARA allows for treatment planning, intervention strategies and levels of supervision (Braff and Sneddon 2007). A comprehensive case formulation of family violence offenders is available to Clinicians and as a result, the tool has an emphasis upon risk management strategies. > > • It includes a variety of static and dynamic factors related to both general violence and intimate partner violence, which makes it flexible, sensitive to offender change, and useful for treatment planning (Helmus and Bourgon 2011) > > • The SARA is based upon 20 risk factors that have been clinically and empirically identified as those most predictive of spousal abuse. > > • The SARA predicts re-offending in diverse samples, including offenders released from prison, offenders on community supervision and mentally disordered offenders. > > • Because the SARA includes a structured clinical approach, it is recommended that mental health professionals conduct the assessments. This allows for a more robust assessment compared to those tools that target completion by other professionals. > > • It has been shown to have good validity and inter-rater reliability (Helmus and Bourgon 2011, Kropp 2008). These validation studies have been conducted by individuals that are independent from the developers and with different types of adult male offenders (e.g. offenders in prison and on community orders). > > • The SARA utilises simple forms and focuses on information which is routinely collected during forensic assessments, minimising additional workload. The aim of the SARA is to be systematic and comprehensive, yet it does not require assessments of inordinate length and complexity. > > 3.1.2 Limitations of the SARA > > Although the SARA has a significant number of strengths, it must be acknowledged that, like all psychometric tools, there are a number of limitations. These limitations are detailed below: > > • The SARA has not been tested with Female offenders or Juvenile offenders > > • Although the sample included some non-Caucasian offenders, it is not clear how well the SARA works with minority offenders > > • The sample was limited to only female victims of Family violence and therefore the SARA is restricted to identifying the risk of violence towards a partner and the perpetrator must be a male. As such, any risk of family violence involving other family members as victims or a female as the perpetrator will need to be assessed utilising standard violence risk assessment tools such as the VRS or HCR-20. > > ... > > 6. Summary > > Since the introduction of the SARA in 2011, over 100 OBP Clinicians have been trained in the administration of this tool. More recently, in June 2015, Corrections Victoria secured the services of Dr. Michael Davis and Professor James Ogloff (both leading experts in the field of Forensic Psychology), to provide SARA training to OBP Clinicians. Feedback from Dr. Michael Davis and Professor James Ogloff during this training indicated that the SARA remains their tool of choice when assessing spousal risk of violence.

8. There is a scant basis on evidence currently before the Tribunal to question the predictive validity of VRS and SARA methodologies. No expert witness was called in this regard, such as a psychologist or psychiatrist. The Tribunal prefers the Corrections Victoria submissions to the Royal Commission, which is in an Australian custodial context where the Applicant's recidivism risk is being assessed. Both the SARA and VRS are in relatively widespread use in Australia, which the Tribunal is aware of from almost a decade of hearing expert evidence about recidivism risk in a visa cancellation / refusal context.
9. The Applicant expresses a willingness in written evidence to engage in offence-specific programs. He claims to have engaged in AOD programs and 'weekly psychological therapy' while incarcerated.[135] There is no independent corroboration of these claims or to the effect that he has overcome any past reliance on illicit drugs, which he previously reported made him feel irritable and angry.[136]
10. The Applicant refers to vocational training in welding and obtaining a forklift licence and white card while imprisoned.[137] He believes these will assist him in leading a law-abiding and productive life if released.
11. In terms of protective factors, the Applicant's evidence includes prospects of work and the interests of Ms DD and her children. His evidence about this was earlier summarised.

Tribunal findings: Risk to the Australian community should the non‑citizen commit further offences or engage in other serious conduct

(a) A repeat of the attempted arson has the potential to cause death or serious physical, psychological, or financial harm. So could exceeding speed limits above 100-110 kph. A repeat of dishonesty offences could cause property loss or financial harm. > > (b) The Applicant's past drug use and mental health issues help explain but do not excuse his crimes. He has a concerning history of recidivism since 2020 and non-compliance with conditional liberty requirements. > > (c) The Applicant's rehabilitative claims rest on scant corroboration. > > (d) The Applicant's oral testimony reflects incomplete insight into his crimes. This includes by attempting to impugn judicial findings against him. > > (e) The Applicant claims to have received a 'proper' diagnosis and treatment for mental health issues in 2024. Despite this he has engaged in persistently objectionable conduct in custodial settings well into 2025. His attempt to contextualise this as arising from deficiencies in immigration detention compared to prison was unpersuasive. The frequency and persistence of his custodial misconduct suggests a continuing inability to regulate his emotions and impulses. This diminishes the persuasive force of his rehabilitative claims and intending to live a law-abiding life. Someone with developed insight, who is genuinely contrite, and has meaningfully advanced their rehabilitation would not continue acting as the Applicant has in custody. His evidence about improvements in custodial behaviour during recent months is uncorroborated. > > (f) In terms of protective factors, even if the Applicant's evidence about claimed consistent work in the past and a future offer of work was accepted, past employment did not ameliorate his tendency to offend. As for the protective effect of his relationship with Ms DD, the Tribunal is unwilling to accept he has a current and continuing relationship with her. On current evidence, any relationship he may have had with Ms DD was unstable, contextualised by mutual drug use, and the Applicant cheating on her with Ms EE. It is not a persuasive protective factor.

2. The Applicant has considerable unmet rehabilitative needs, including therapeutic recommendations made by Ms Mynard and the 2024 FIS recommendations.[138] Any abstinence in custody must be seen through the lens of his past drug use, crimes, and misconduct. On current facts the Applicant's recidivism risk is moderate and unacceptable.
3. When the very serious nature of the Applicant's crimes and other conduct is coupled with an unacceptable risk of reoffending, which may cause very serious harm if repeated, this primary consideration weighs substantially against exercising the discretion granted by s 501(1) in his favour.

1. Clause 8.2(1) of the Direction reflects the Australian Government's concerns about conferring on non-citizens who commit acts of family violence the privilege of coming into or staying in Australia. Clause 8.2(2) provides that this consideration is relevant where:

(a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

(b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

1. In considering the seriousness of family violence engaged in by a non-citizen, the Direction requires the following factors at cl 8.2(3) to be taken into account where relevant:

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

b) the cumulative effect of repeated acts of family violence;

c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:

i. the extent to which the person accepts responsibility for their family violence related conduct;

ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

iii. efforts to address factors which contributed to their conduct; and

d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.

1. The evidence refers to the Applicant having three intimate relationships in Australia.[139] The Court noted the first relationship was of short duration 'for some months in 2014' and ended when his female partner obtained a FVIO against him.[140] This is the same woman who approximately seven years later was the victim of his attempted arson offence. The Court inferred from the victim's evidence during a contested trial that 'family violence was experienced' during her relationship with the Applicant.[141] The Applicant's second relationship was of approximately two years' duration and reference is made to him placing tracking and listening devices in this partner's car to monitor her movements and conversations, which he considered normal.[142] His evidence about this was earlier summarised and includes the claim that the victim was aware of and consented to the devices. This is inconsistent with the 2024 Tribunal decision that stated:

51. ...He admitted putting a tracking device on her because he thought she was being unfaithful. He told her about the device about one month later and he said that he did not know that this was unlawful.

2. The Tribunal does not accept the Applicant's evidence about a former partner consenting to him placing tracking and listening devices in her car. This was controlling behaviour by the Applicant within the meaning of cl 4(1) of the Direction.
3. The 2024 FIS report provided the following summary regarding family violence:[143]

Interpersonal Aggression > > [The Applicant] has engaged in aggressive behaviours consistently in his interpersonal relationships as evidenced by his lengthy ejustice (30/09/2024) family violence summary noting 3 current FV IVO Finals ending 16/10/2024, 21/11/2027 and 31/12/2060. His interpersonal aggression appears to be predominately towards women. His index offence of throwing a Molotov Cocktail at an ex-partners front door and self-reports of tracking an ex-partner were occasions of this. [The Applicant] acknowledges the use of aggression to get what he wants however denies using violence and receiving protection orders or IVO's or using violence within his relationships. [The Applicant] is considered to be at precontemplation stage of change for this treatment target due to his limited awareness of the ways he uses interpersonal aggression and the denial of IVO's. > > ... > > [The Applicant] identified never using violence with his partners expressing "physical violence should never be used" he continued to identify he has received 2 IVOs. However, this was not consistent with file review which identified the following family violence incidents 29/06/2014, 09/09/2014, 23/06/2018, 26/09/2018, 10/03/2020, 27/10/21, 13/06/22, 08/09/22, > > Served intervention orders 12/12/23, 4/10/23, 22/11/22, 21/11/22, 25/10/22, 25/08/22, 24/08/22 (2), 12/05/2020, 09/04/20, 28/02/20, 11/09/18, 07/07/15, 20/06/2015. > > When exploring family violence, [The Applicant] reported the protection orders were weaponised by the government/ authorities against him and denied any responsibility in the situations expressing, "family violence is never ok, the Jacks weaponize it to support racial profiling, they used this to get charges".[144]

4. The Applicant accepts the FIS summary is accurate and that he remains subject to some orders. It remains unclear, however, who these relate to. The Applicant claims he consented to these orders without conceding allegations made. He said this was 'to avoid the need for the affected family members to have to go through the court process'.[145]
5. The 2024 Tribunal decision, having regard for the 2024 FIS report, stated the following about family violence:

... > > 52. A police incident report dated 23 June 2018 recorded a complaint that on 24 February 2018 the Applicant hit his partner whilst she was in her car with her two-year-old daughter. The report stated: > > On this day the protected person has attended at psychologist's appointment and disclosed previous assaults and escalating violent behaviour that respondent has committed against her. In amongst these disclosures are incidents of violence in front of the 2 year old child of the protected person, and kicking at her vehicle and previous assaults. The psychologist has contacted police to attend. Protected person highly emotional, visibly upset and concerned for respondent. > > During conversation, stated that she had blocked respondent's phone number due to constant messages and threats to hurt... and to join the Hells Angels. > > Checks reveal the respondent has been in two other violent relationships with other females, which have resulted in intervention orders being put in place. Police believe the order necessary to protect the protected person and her child. > > 53. The Applicant denied the above incident and said that he never hit her and that she was bi-polar. > > 54. A further police incident report dated 1 October 2018 recorded that there was an intervention order in place and that the Applicant had repeatedly emailed his partner causing her to be 'fearful that the behaviour is escalating' and that she was 'scared that if the resp behaviour escalates then her daughter could be in danger'. The Applicant blamed his partner and said that she had sent the emails. > > 55. Another relationship was on and off for about four years. There is a police incident report dated 27 October 2021 which records an incident of family violence as follows: > > AFM tried to grab her keys back when RESP pushed AFM onto the bed and choked her for approx 30 seconds. The RESP squeezed throat with enough force and duration to heavily impact her breathing and cause her to cough for a while after the incident. ... > > AFM disclosed to police of an incident on 24 September 2021 where RESP slapped AFM's mobile phone off her hand which caused it to fall on her face and resulted in a cut lip. AFM stated that RESP's actions were unprovoked. AFM also disclosed of historical FV incidents between 2017 and 2021 where RESP was physically violent towards AFM which resulted in injuries (bruises, laceration or knee and bump on forehead). AFM has taken photographs of injuries since 2017. All FV incidents involved arguments about their finance however AFM does not recall specific details of each incident. > > 56. When asked about the above report, the Applicant denied all of it. He said that he would yell or swear but he never hit his partner. > > 57. I reject the Applicant's evidence and find that he engaged in family violence, including physical violence that caused injury and fear, on numerous occasions from at least 2017 until 2022... > > (Footnotes removed)

6. It was advanced on the Applicant's behalf that since the attempted arson:[146]

30. ...the applicant has engaged in serious self-reflection and has taken steps to better understand the broader concept of family violence as it is recognised in Australian law and society. The applicant now appreciates that Australia takes a broader, more comprehensive view of family violence, encompassing not only physical violence but also emotional, psychological, and economic abuse. He acknowledges that his understanding of acceptable family dynamics was shaped by the cultural and religious context in which he was raised, which, while different, does not justify or excuse his past actions. > > 31. The applicant's upbringing in Iran saw him exposed to serious and significant violence during his formative years. He grew up in an environment where violence was normalised as part of daily life, and this early exposure has had lasting effects on his understanding of conflict resolution and family dynamics. His childhood experiences were marked by fear, instability, and limited access to positive role models who could guide him toward healthier and more constructive ways of managing emotions and interpersonal relationships. Despite these early challenges, the applicant has worked diligently to break free from these patterns. He acknowledges that while his past may have influenced his behaviour, it does not define who he is today, and he is determined to continue on a path of personal growth, responsibility, and accountability. > > 32. Accordingly, the applicant submits that this consideration should be given limited to moderate weight in favour of the discretion to refuse the applicant's application for a Protection visa.

7. The Applicant's oral evidence about his relationship with Ms DD was earlier summarised. This is somewhat inconstant with his current statement, including about the nature of their relationship, when they lived together, and the ages of her children. The Applicant's oral evidence is that their relationship was 'volatile' and 'on-off'. He claims Ms DD is a drug user, which is supported by other evidence.[147] He also stated there were times when he chose not to live with her, 'did not want her support', and 'preferred to be homeless'.
8. The Tribunal accepts the detailed 2024 FIS report as an authoritative source of information. There is no evidence the author of this report, which was co-signed by the Forensic Clinical Team Leader, records other than what was available from the file review and Applicant's interview responses. This indicates the Applicant has come to the attention of authorities in a family violence context and had orders served on him between 2015 and December 2023 to protect former partners, some of which remain in place. It is uncontroversial the Applicant engaged in a very serious instance of family violence through the attempted arson offence, which resulted in a conviction and imprisonment.
9. The Applicant was assessed as constituting a moderate risk for intimate partner violence,[148] which the Tribunal accepts. The inconsistency of his evidence about accepting responsibility for past conduct is of concern and there is a dearth of evidence about offence-specific rehabilitation. The Applicant's insight is incomplete at best, which exacerbates concerns about the risk of future family violence. This primary consideration weighs substantially against exercising the discretion granted by s 501(1) of the Act in his favour.

The 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.

Tribunal consideration: strength, nature and duration of ties in Australia

1. The Applicant advances the following as relevant to this primary consideration:

(a) He claims Ms DD has been his de facto partner over the last decade and that she and her two children rely on his support.[149] In the 2024 Tribunal decision, however, it was noted the Applicant had 'no current partner'. Reference was also made to: > > ...a friendship with a woman who gave oral evidence to the Tribunal in support of the Applicant. She finds him a calming influence and would be disappointed if he were not released. He met her through work and since early 2024 she has had regular contact with him in prison. She has offered him accommodation with her if he is released. > > (b) In response to the absence of any statement from Ms DD, Ms Banerjee submitted that the Applicant was involved in a 'complicated, on-off relationship' with Ms DD, had 'cheated on her with another woman', and was 'concerned not to involve her in an inherently uncertain process'. > > (c) In terms of positive contributions, the Applicant claims to have undertaken studies in Australia at doctoral level and worked in a highly specialised area within construction and mining industries. This includes purportedly running his own heavy machinery breakdown business and completing work for major companies. He also claims to have trained apprentices, mentored young people, and engaged in 'volunteering in regional Victoria...for community projects'.[150] As noted earlier, there is no independent corroboration of his past studies, specialised work in construction and mining industries, business registration details, or community contributions. > > (d) In terms of friends, there are references to the Applicant interacting with anti-social peers who pressured him to drink and use illicit drugs, and to some friendships in custody.[151] There are no statements in this proceeding from any supportive friends.

Tribunal findings: strength, nature and duration of ties in Australia

(a) The Applicant came to Australia about 13 years ago at the age of 27. He has lived outside of Australia for some time since and has clearly not spent his formative years in Australia nor lived here since a young age. > > (b) In the absence of any evidence from Ms DD, her two children, the children's biological father, or the friend referred to in the Tribunal's 2024 decision, it is not possible to make persuasive findings about the Applicant's current relationships with these people. The Tribunal places little weight on his claims.

(c) The Applicant appears to have undertaken some study and work in Australia, although this is largely uncorroborated by academic or employment records. Some weight is nevertheless afforded to positive contributions in these areas.

(d) There is no corroboration in this proceeding about prosocial ties with supportive friends or others within the meaning of this primary consideration. There is no evidence from the purported beneficiaries of the Applicant's training, mentoring, or volunteering, on which little weight is placed.

1. On current evidence the Applicant has very limited ties in Australia despite living here for over a decade. It is accepted an adverse visa decision has the potential to cause emotional impacts on some people he may be close to, but the paucity of evidence is such that any negative effect is unlikely to rise higher than sadness or disappointment. On balance, this primary consideration weighs no more than slightly against exercising the discretion granted by s 501(1) to refuse the visa.

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.[152] It is generally for an Applicant to 'identify the personal facts and circumstances relevant to the decision',[153] including the existence of any minor children whose best interests may be affected. 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:
   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.

Tribunal consideration: Best interests of minor children in Australia

1. The Applicant's oral evidence about Ms DD's two children was earlier summarised. This varies somewhat from his current documentary claims that he lived with Ms DD and her two children, who are 14 and 16, for about six years prior to imprisonment.[154] His current evidence also contrasts with a finding in the 2024 Tribunal decision that he has no biological children and agreed with the Respondent that this primary consideration 'was not a relevant factor on this application'. In current submissions the Applicant claims to have 'a good relationship with his stepchildren' who enjoyed learning about his culture and work and that he tried to be a positive role model for them.[155] In oral submissions, however, he stated that he does not have much of a relationship with the younger child and they 'are not good with each other'.

Tribunal findings: Best interests of minor children in Australia

1. There is no evidence from Ms DD or her children about the current state of their relationship with the Applicant, any dependence they may have on him, or the impact of a decision in this matter. The children's interests cannot be reliably distinguished on current evidence. It is noteworthy the Applicant's oral evidence is that the elder child is now an adult, which means they fall outside of the meaning of this primary consideration.
2. Even if it were accepted the Applicant has some continuing relationship with these children who are still minors, there have been long periods of absence or limited meaningful contact. This includes when the Applicant chose not to live with Ms DD, when working interstate, and since his arrest. The younger child is approaching adulthood, which limits the time the Applicant can play a positive parental role. For reasons earlier adduced, the Applicant constitutes a moderate and unacceptable risk of recidivism, such that his potential to play a positive role remains uncertain. This includes because it is not known if any of the continuing orders the Applicant said he remains subject to relate to Ms DD or her children.
3. The Applicant's inconsistent evidence about this primary consideration is unsatisfactory. Based on the highly speculative premise that he may have a continuing relationship with these children, that the elder child is not yet an adult, that none of the continuing orders relate to Ms DD or the children, and that the Applicant can remain abstinent / law-abiding in the context of a resumed relationship with Ms DD, this primary consideration carries only slight weight against exercising the discretion to refuse the visa.

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:

1. acts of family violence; or
2. causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
3. 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;
4. commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
5. 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
6. 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 to the Australian community.
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[156] 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'.[157]
3. The High Court has more recently held in Ismail at [52], albeit in the context of an earlier comparable Direction (Direction 90):

Paragraph 8.4(4) is to be understood as directing the decision‑maker not to attempt to infer what the expectations of the Australian community would be "in the particular case" (that is, with the knowledge of the delegate about the applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)-(3) are the relevant norm described as the expectations of the Australian community. That norm, as applicable by reference to the terms of para 8(1)-(3), is then to be weighed with other relevant matters as required by paras 6 and 7 of Direction 90. The delegate's reasoning accords with these requirements.

1. The following submissions are advanced on the Applicant's behalf:

The applicant has already served his sentence, and spent significant time being detained in immigration detention following the cancellation of his previous Bridging A visa under s 501(3A) of the Act. While in immigration detention, the applicant was seriously assaulted, resulting in lasting back and ankle injuries. Additionally, the applicant was assaulted while on remand, which led to the applicant losing part of his vision. > > The applicant acknowledges the nature and seriousness of his previous offences, but submits that those were not the kinds of offences for which the Australian community has no tolerance such as terrorism or child sexual offences. > > Community expectations must be assessed as against the specific circumstances of the applicant's offending, and the causes thereof. It is insufficient to conclude that solely based on the objective seriousness of the offences that the applicant has been convicted of, that the Australian community would expect that the applicant should not hold a visa. Reasonable members of the Australian community who were fully aware of the applicant's circumstances, including the key fact that he is owed international non-refoulement obligations, would not expect that his application for a Protection visa should be refused, and that he be removed from Australia to a place where he has a well-founded fear of persecution, or to an unknown third country. > > What the Direction imputes or ascribes to the whole of the Australian community is an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter. Nevertheless, it remains an issue for the Tribunal what weight should be given to this consideration. In doing so, the Tribunal is required to consider the specific circumstances of the applicant's situation. > > The Tribunal should find that (deemed) expectations of the Australian community are outweighed, in this case, by the (actual) circumstances of the applicant and the profoundly adverse consequences for him of a decision to refuse his application for a Protection visa.

2. In support of the contention that 'very limited weight' should be placed on this primary consideration, Ms Banerjee submitted that the Applicant has 'served his sentence in full', was not confronted with 'terrorism or child sex offences', and the Australian community's expectation is he will obey Australian laws.
3. The following is advanced by the Minister:

The applicant's commission of family violence raises 'serious character concerns' within the meaning of Direction 110:cl 8.5(2)(a). On that basis, and in light of his risk of re-offending, the Australian community expects the visa should be refused. This consideration should weigh significantly in favour of refusal.

Tribunal findings: Expectations of the Australian community

1. The High Court's decision in NZYQ[158] casts a different light on this primary consideration and the norm expressed at cl 8.5(1) of the Direction about not allowing certain non‑citizens to enter or remain in Australia. Their Honours held that detention of non-citizens authorised by ss 189(1) and 196(1) of the Act is unlawful 'when there is no real prospect of removal of the alien from Australia becoming practicable in the reasonably foreseeable future'.[159] In essence, the Applicant has a protection finding and cannot be removed to Iran because s 198(5A) of the Act no longer requires or authorises this. The legal consequences of this are later discussed,
2. Pursuant to cl 8.5 (1) of the Direction, the Applicant has not obeyed Australian laws while in Australia. This includes conduct that raises serious character concerns within the meaning of cls 8.5(2)(a) and (c) of the Direction. He has repeatedly breached community expectations and poses an unacceptable risk of reoffending. Pursuant to the principles at cls 5.2(3)-(4) he should expect to forfeit the privilege of staying in Australia. His circumstances do not correlate with cl 5.2(6) of the Direction, such that he may be afforded a higher level of tolerance because of the duration of his residence in Australia.
3. The different context now placed on this consideration after NZYQ does not disturb the deemed community expectation arising from the Applicant's conduct. This primary consideration weighs substantially in favour of exercising the discretion granted by s 501(1) to refuse the visa.

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 non-citizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.

Tribunal consideration: Legal Consequences of the Decision

1. Section 5 of the Act defines 'non-refoulement obligations' non-exhaustively as including Australia's obligations as a party to certain Conventions, Protocols and Covenants, and 'any obligations accorded by customary international law...of a similar kind to those mentioned' in those treaties.[160] Non-refoulement obligations are 'not confined to the protection obligations to which s 36(2) refers'.[161]
2. An Applicant's claims in the context of a visa refusal decision can be less categorical than the more comprehensive process under s 36A of the Act.[162] Legal consequences can encompass factors such as duration of detention and prospects of removal, including to a third country. The Tribunal is required to read, identify, understand and evaluate an applicant's representations or those clearly arising from the evidence.[163]
3. The Tribunal is satisfied the country of reference is Iran. Because of the Applicant's 2024 protection finding his circumstances fall under cl 9.1.1 of the Direction. He cannot be removed to Iran because s 198(5A) of the Act no longer requires or authorises this.
4. Extensive submissions are advanced regarding legal consequences,[164] which Ms Banerjee said in closing are a 'pernicious form of visa instability':

Legal consequences of the decision > > ... > > If the Tribunal exercises its discretion not to grant the applicant a Protection visa, the situation will be that the applicant cannot be removed from Australia unless certain conditions are met. This creates two sets of legal consequences. > > The first is that, unless and until a third country agrees to receive the applicant, the applicant would be granted a Bridging R visa (BVR) on various conditions because otherwise "there is no real prospect of [his] removal ... from Australia becoming practicable in the reasonably foreseeable future" following the High Court's decision in NZYQ...additionally, being affected by the High Court's decision in NZYQ, the applicant cannot be held in immigration detention unless certain conditions are met > > The second is removal to a third country. In the present case, removal to Nauru as a third country is a real possibility which would have severe legal consequences for the applicant. > > The consequences of a decision to affirm the delegate's decision in the applicant's case include removal (refoulement), detention, deprivation of redress for wrongs committed in removal or detention processes, ongoing risks to status and prolonged insecurity without adequate support. > > There are also immediate psychological and health impacts arising from those legal consequences, causing fear, loss of autonomy and dignity, and insecurity. > > Imposition of visa conditions > > If the applicant is granted a BVR, the applicant would be subject to a minimum of 20 onerous and restrictive conditions. Non-exhaustively, these conditions require: reporting as directed, notifying his address, employment and any changes to contact details, and doing everything possible to facilitate his own removal from Australia and reporting in person for removal from Australia. > > These conditions are onerous and their overlapping imposition creates a maze of conditions which can be difficult to interpret and which in turn impairs the applicant's ability to rebuild his life by injecting uncertainty into fundamental aspects of his life such as employment and residence. Breach of some conditions may also result in criminal penalty, including imprisonment for up to 5 years. This regime undermines autonomy and dignity. > > However, the applicant is currently detained under s 189 of the Act. The stated purpose for such detention is removal to Nauru as a third country, even if that removal is not being currently effected. > > Removal to Nauru, an unknown third country, or Iran > > If the decision is affirmed the applicant will be subject to ongoing removal processes as a 'removal pathway non-citizen'. > > The applicant can be removed from Australia under s 198 of the Act, relevantly to a country other than Iran, if a foreign country grants him permission, even if conditional or without due specificity, to enter and remain. Information about the applicant may be shared with that country, exposing him to serious risk. There are no protections against that third country refouling him to Iran, detaining him indefinitely or otherwise unlawfully, or otherwise persecuting him. > > The policy intention and legislative architecture providing for the applicant's removal to a third country exist. The "third country reception arrangement" provisions envisage financial inducement, restraint of liberty and avoidance of liability for any harm caused. Concerningly, the rules of natural justice to affected persons are said to be excluded when the Commonwealth enters into third country reception arrangements, when the Minister gives a written direction to a removal pathway non-citizen, or when the Minister collects, uses or discloses sensitive criminal history information to a foreign government. There is not even a requirement that the foreign country must be a signatory to the United Nations Convention Relating to the Status of Refugees (Refugee Convention). > > The prospect of removal to a third country is real. The Minister has been explicit that the first priority for members of the "NZYQ cohort" is that "we don't want them in Australia at all". > > Realistically, no third country will accept resettlement unless financially induced to do so, and no third country will be tempted by financial inducement unless it is impoverished and consequently unable to deal with the applicant's health and other needs. > > Removal to Nauru > > Nauru is heavily dependent on Australia for support. > > On 16 February 2025, the Minister confirmed that the Nauruan Government agreed to "offer a resolution for the cohort" in the applicant's situation, and that three people had already been granted 30-year Nauruan visas, termed a Long Term Stay Visa (LTSV), and taken into detention with removal to Nauru to proceed "as soon as possible". This was pursuant to the Commonwealth entering into a third country reception arrangement with the Republic of Nauru, at a cost of $2.5 billion, allowing actions to be taken in relation to that arrangement for s 198AHB of the Act, and reflected in Nauruan law by the Immigration (Long Term Stay Visa) Regulations 2025 (Nauruan Regulations). This arrangement is currently being challenged in the High Court in TCXM v Minister for Immigration and Citizenship. The Court has reserved its judgment. > > The Minister said, "Nauru have described these three visas as the first three, and that's how it should be seen", noting again the Minister's comments at [60] and [63] above. At least four persons have now been transferred to Nauru. In November 2024, it was reported that the President of Nauru said to Nauruan media that those while the LTSV was for 30 years, there might be "a way for them to move around ... to go home". That is essentially constructive refoulement. > > An application for a Nauruan LTSV has been made by the Minister on the applicant's behalf. The Nauruan Regulations contemplate insecurity of status, including by the duration, visa cancellation, the impact of change of circumstances, the prospect of removal, and the imposition of terms and conditions which include not behaving in a manner prejudicial to morale or engaging in a religious vocation. The poor conditions in Nauru are very likely to cause the applicant serious harm amounting to persecution, as set out below. > > Situation in Nauru > > Nauru has a population of 13,000,61 experiences considerable insecurity and is ranked the fifth most vulnerable to shock by the UN. Nauru is reliant on Australian aid, with the shortest life expectancy in the pacific, and with 25% of people living below the poverty line. > > There is inadequate healthcare in Nauru, with the World Health Organisation noting ongoing outbreaks of typhoid and diarrhoea, as well as tuberculosis and leprosy. > > After the Government of Nauru terminated their arrangement to assist the Nauruan population with 24 hours' notice, Médécins Sans Frontières (MSF) reported that mental health is stigmatised and poorly understood, leading to poor care for all. Nearly one third of MSF's patients had attempted suicide, and half needed treatment for psychosis. > > There is also evidence of resentment of the arrangements occurring in Nauru, further affecting the applicant's safety in Nauru. In particular, the Nauruan President, David Adeang, has said people to be resettled in Nauru 'have killed people' and include 'disturbed people'. Troublingly, and contrary to international law, he has said that he expects they will eventually be returned to their home countries, and other statements including on his Facebook page. Given the small population and land mass of Nauru, it can be inferred that the President's comments will be widely known. > > If forcibly removed to Nauru, as appears highly likely, the applicant would be vulnerable to persecution which are explained further below. In short form: > > a. violent targeting and discrimination as a refugee, a person identified to have a criminal history and a person diagnosed with PTSD and ADHD; > > b. severe harm as a result of his mental health conditions, including a lack of access to treatment and care and the attendant likelihood of physical and mental deterioration; > > c. mental health deterioration associated with being forcibly removed from the country in which he has resided since 2012 and exiled in a country where he has no connection or support and where he can never truly become part of the community; > > d. insecure arrangements, with no apparent protections against harms including detention and other human rights breaches; and > > e. the prospect of his LTSV ceasing at the age of 70, leaving him with no country in which to legally enter and reside but for the very country where he fears persecution. > > The fear of these consequences would also burden the applicant and affect his health. > > In removing the applicant to Nauru, Australia would very likely breach its international obligations and inflict severe harm on the applicant, including under article 33(1) of the Refugee Convention, article 7 of the International Covenant on Civil and Political Rights (ICCPR),70 and article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). > > In particular, and as above, there are reasonable and probative grounds for believing that the applicant faces a real risk of refoulement to Iran from Nauru. The principle of non-refoulement prohibits not only the direct forcible return of persons to countries where they face persecution, but also indirect measures exposing a person to risk that the receiving authority would transfer the person in violation of the principle. In removing the applicant to Nauru, Australia would be in breach of this obligation and effectively responsible for his refoulement to Iran. > > Real risk of irreparable harm in Nauru > > The applicant faces a real risk of irreparable harm in Nauru in breach of Australia's international obligations, given his health conditions and his status as a refugee transferred from Australia under a precarious LTSV program and in a country where there is no evidence of adequate support for persons like the applicant. > > Inhuman treatment includes treatment causing actual bodily injury or intense physical and mental suffering, including being subjected to ongoing fear from authorities, prolonged uncertainty and apprehension, and poor conditions and restriction. Degrading treatment humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, including exposure to precarious or inadequate conditions, subjection to abuse without adequate protection, and confinement. > > Risk of harm as a refugee or transferee from Australia > > Against the decade-long backdrop of Australia's regional processing arrangements in Nauru, the applicant will be readily recognisable as a transferee from Australia. Moreover, not only has the applicant been recognised as a refugee in respect of Iran, that will also be apparent given those are the individuals vulnerable to transfer under the Australia-Nauru arrangement. The applicant's transfer stamps him as someone whose criminal offending has triggered their expulsion from Australia at immense cost. This is a particular social group for the purposes of the Refugee Convention. > > This profile exposes the applicant to a real risk of arbitrary deprivation of life, torture, and cruel inhuman or degrading treatment or punishment in Nauru. The risk of the applicant attracting adverse attention is increased by his ADHD, which the Tribunal has found would bring him to the attention of authorities in Iran due to his behaviour. > > Nature and impact of profile > > The controversy of Australia's third-country reception arrangements means the applicant will have an elevated profile in Nauru. There has been significant media coverage in relation to the release of people from immigration detention for whom there is no reasonable prospect of removal due to (among other things) their status as refugees, referred to as the 'NZYQ cohort.' There has been extensive coverage in relation to the transfer of three people from the NZYQ cohort to Nauru attempted earlier in the year, and of the new laws and the $2 billion deal. > > The President of Nauru publicly stated that the three initial transferees are "not refugees" - and that, rather, they are former residents of Australia who are to remain in Nauru for a short period before onward transfer. Not only factually incorrect, President Adeang's statements indicate an antipathy in Nauru towards the receipt and permanent resettlement of refugees. The statements involve tacit recognition of the existence of the particular social group identified above. > > Reporting indicates transferees will face a "hostile reception" in Nauru, noting the Australian Government has described the cohort as "violent" and "appalling", with reports of community members "shouting, [and being] angry". There is considerable evidence that the lives and safety of refugees and transferees are routinely threatened in Nauru. There have been numerous instances of violence, aggression and hostility by members of the Nauruan community towards the refugee population and a pattern of conduct from Government and police in failing to effectively enforce accountability. There are credible reports from Human Rights Watch, Amnesty International and United Nations institutions that refugees in Nauru have been subject to intimidation, harassment, bullying, sexual assault including rape, violence and threats of violence, verbal abuse and mistreatment in the workplace. > > Reports also indicate the Nauruan authorities have previously used law enforcement as a means to harass and intimidate refugees and asylum seekers. > > The Australian Senate Legal and Constitutional Affairs References Committee reported in April 2017 that asylum seekers were living in an unsafe environment in Nauru, and that allegations of abuse and neglect were "prevalent and sustained". > > Human Rights Watch has reported that refugees have been attacked with weapons including rocks and machetes, and that the personal property of refugees has been destroyed. Many individuals reported feelings of intimidation or fear when leaving the Regional Processing Centre, given the treatment of refugees by members of the Nauruan community. In 2021, a refugee in Nauru reported being intentionally hit by a car while riding his motorbike. The drivers of the car were arrested for attempted murder but subsequently released. The victim was medically evacuated to Australia where he required 19 operations. Other refugees in Nauru reported that police failed to lay charges or properly investigate offences against refugees. > > In August 2025, it was reported that the leader of an outlaw motorcycle gang was part of a secret deal with the Nauru government to provide guards, after a further $40 million was promised to Nauru by the Australian Government. > > Risk of harm due to mental illness > > People with mental health conditions can constitute a particular social group. > > In a comprehensive analysis of the mental health crisis in Nauru, Médecins Sans Frontières reported: > > ... the Nauruan health system is ill-equipped to manage the current mental health crisis on the island. The system is under-resourced, with no inpatient facilities at the Republic of Nauru hospital and insufficient mental health staffing. MSF's health promotion assessment found that mental illness is stigmatised and poorly understood, leading to poor care for all patients - Nauruans as well as refugees. > > ... > > The mental health suffering on Nauru is among the most severe MSF has ever seen, including in projects providing care for victims of torture. > > There is evidence that societal attitudes alienate those who are suffering from mental illness, and there remains significant stigma in the Nauruan community that prevents access to mental health treatment amounting to serious or significant harm. In 2021, Nauru reported to the United Nations that "the title of the Mentally Disordered Persons Act had been amended to the Mental Health Act in order to ensure political correctness", indicating ongoing attitudes to treatment. > > The expulsion of Médecins Sans Frontières from Nauru in October 2018 plainly shows the Nauruan Government's attitude to the provision of mental health care, particularly to refugees and transferees from Australia. > > It is highly likely that the applicant will be deprived of access to essential mental health support in Nauru owing to social stigma and exacerbated by his profile as a refugee and transferee from Australia. It is established both in Australian law and internationally that a denial of medical treatment can amount to serious harm for the purposes of protection claims. Further, and critically, the cumulative effect of the mental suffering caused by the forcible transfer of the applicant to a country where he has no connection to live for 30 years in a securitised and restricted environment in fear of reprisal from authorities and the local population and forced return to persecution, and de facto inability to access work or alternative accommodation, amounts to inhuman or degrading treatment or punishment. > > Restriction on movement > > If forcibly removed to Nauru, there is a real risk that Nauru would contravene the applicant's rights to leave and re-enter his own country, through the power to cancel his Nauruan visa, in circumstances where the applicant could not re-enter Australia and he otherwise has a well-founded fear of persecution in Iran. > > The applicant has been recognised as a person who faces a real risk of persecution in his country of nationality, Iran. Should he be forcibly expelled from Australia to Nauru, the only country in the world in which the applicant would have both the right and practical ability to reside would be Nauru. As a refugee, the holder of a 30-year visa, and the subject of a high-level diplomatic agreement entered into by the government, the applicant could not be considered a 'mere alien' in Nauru. > > The applicant is likely to face practical difficulties in leaving Nauru. He would not be eligible for a Nauruan passport. While travel documents may be issued to non-citizens who are recognised refugees, this is a discretionary power, not a right or entitlement. More significantly, Nauruan law provides that the applicant's Nauruan LTSV may be cancelled if he fails to return to Nauru within 12 months of his departure. But, should he acquire the financial and practical means to do so, and unforeseen events prevented his return to Nauru within 12 months, his visa could be cancelled. Such events could include disruptions to travel due to unrest or border closures, or financial difficulties while overseas. The Applicant would then be left without the right to reside in any country, other than Iran, where he faces persecution. > > This visa cancellation power impacts the applicant's rights to both leave and re-enter his own country. The United Nations Committee on Civil and Political Rights has explicitly noted that freedom to leave a State may not be made dependent on the period of time the individual chooses to stay outside the country.96 In no case may a person be arbitrarily deprived of the right to enter his own country. The fact that cancellation of the applicant's visa in these circumstances is provided for by law does not prevent it from being arbitrary. There are few, if any, circumstances in which deprivation of the right to enter one's own country could be reasonable. > > Constructive refoulement > > There is also a real risk of constructive refoulement, as discussed above. In circumstances where the applicant will be exposed to significant hardship and essentially facing a Hobson's choice, there is a risk that he may make a written request to return to Iran. Constructive refoulement is increasingly recognised by international authorities as a breach of the cardinal prohibition on refoulement under international law. > > The Tribunal is required to weigh non-refoulement obligations as part of the consideration of impediments on return, notwithstanding that an applicant might only return by "choice". This reflects the reality of constructive refoulement. It is far from uncommon for the Department to remove people who have been found to be owed protection. In one period, 18 people who previously held a protection visa were 'voluntarily' removed. Further, as a result of the applicant's application for a Protection visa being finally determined for the purposes of s 197D(1), the Minister is able to [sic] his protection finding on the basis of disagreement with the finding, as distinct from a material change in the circumstances of the applicant or in Iran generally. That, combined with the policy statement with respect to this cohort makes the exercise of the power under s 197D(2) a real possibility that the Tribunal is urged to consider. Again, in the light of the devastating consequences of a s 197D(2) decision, the possibility of this occurring weighs in favour of revocation. > > Absent this Tribunal stepping in to correct the situation, the applicant will have to live with ongoing fear with respect to imminent and forcible removal, likely to harm including, at a minimum, inability to access healthcare, causing serious present emotional and psychological consequences. This is a form of instability and distress that the Tribunal should not affirm. The applicant will also be exposed to jail for between one to five years if he does not capitulate in aiding his own removal. > > Given the profound hardships and restrictions to which the applicant would be subject, including the risk of violence, discrimination and denial of medical care associated with his profile outlined above, there is a real risk that he would accept his return to Iran where he would face persecution. > > Finally, the applicant has no entitlement to make any visa application.104 As a result of s 48B, the applicant will not be able to make a valid application for a Protection visa to raise claims of protection in respect of Nauru, or any other third country with which Australia may enter into third country arrangements. > > Accordingly, this consideration should weigh very heavily against exercising the discretion to refuse to grant the applicant a Protection visa. > > (References removed.)

(a) The Applicant is liable for removal as soon as reasonably practicable if the reviewable decision is not set aside but cannot be removed to Iran because of the protection finding in his favour; > > (b) The Minister has applied for a Nauruan Long Stay Visa ('LTSV') on the Applicant's behalf, which remains pending; > > (c) Continued detention is authorised for the purposes of removal to Nauru. If the LTSV is granted by the Government of Nauru, then the Applicant would be liable for removal there; > > (d) If the Applicant is removed to Nauru, practical hardship would result because of his unfamiliarity with that country and absence of familial and other support. This would be amplified because of his ADHD and PTSD diagnoses; and > > (e) The Tribunal does not need to consider the prospect of constructive refoulement as this is not a direct and immediate legal consequence of its decision.

6. The Tribunal now steps through potential legal consequences:

(a) Mandatory cancellation of the Applicant's visa resulted in him becoming an unlawful non-citizen under s 14 of the Act. Given the 2024 protection finding, he cannot be removed to Iran because s 198 of the Act no longer requires nor authorises this. Consequently: > > > (i) If the reviewable decision is set aside, the Applicant's Protection Visa application will be remitted for further consideration. In response, the Minister could: seek judicial review; choose to exercise a personal power such as setting aside the Tribunal's decision under s 501BA of the Act; or remove the Applicant's protection finding and keep him detained for involuntary removal.[166] There is no evidence any of these possibilities are in prospect and they are not immediate consequences of the Tribunal's decision. > > > > (ii) If the Tribunal exercised the discretion under the Act to refuse the visa, the Applicant could seek judicial review. His detention is permissible while this is heard. Another reason for continuing detention is the pending LTSV. This is a reasonably foreseeable consequence of the Tribunal's decision given the clear intention of the executive Government in making this application. It remains uncertain, however, when Nauru will decide the LTSV application or whether it will be approved. Open-source reports in December 2025 state only one person has so far been removed to Nauru while others in the NZYQ cohort have mounted a High Court challenge after an unsuccessful FCA appeal about the executive Government's ability to rely on the Nauru Agreement.[167] If an LTSV is granted by Nauru, then s 198 requires the Applicant to be removed there as soon as reasonably practicable. If the LTSV is not approved, the executive government may permit the Applicant to reside in Australia under a Class WR Bridging R (Subclass 070) visa ('BVR') with certain conditions pursuant to regulation 2.25AE of the Migration Regulations 1994 (Cth).[168] This appears to currently be the case for most non-citizens falling within the NZYQ cohort. That said, it is a fast-moving area of the law and turns on the statutory circumstances then prevailing. It remains uncertain what conditions would be applied under a BVR, but these can be restrictive, have a compliance burden, and possible prosecution if breached. BVR holders become a 'removal pathway citizen' within the meaning of s 5(1) of the Act.[169] Pursuant to s 199E of the Act, this requires them to comply with a removal direction if a third country approves the Government's request for the non-citizen to enter and remain. Ultimately, however, any removal decision under a third country arrangement would be an exercise of non-statutory executive power and turns on government-to-government negotiations. It is not a direct or immediate consequence of the Tribunal's decision. In terms of the claim advanced on the Applicant's behalf that he could, at some future point, request voluntary removal to Iran, there is no current evidence of this. It seems unlikely given his circumstances. There is also no evidence the Applicant may apply in future for an exercise of the Minister's personal non-compellable discretion under s 195A or 197AB of the Act. This is not a direct or immediate consequence of the Tribunal's decision.

7. As can be seen from the above, much of what may occur to the Applicant turns on the irresoluble course of future events[170] and is not a direct or immediate consequence of the Tribunal's decision.[171] In DOB18,[172] Griffiths J reflected favourably on Ali[173] and cautioned against speculating about future events:

... Justice Flick's reasoning in Ali was adopted and applied by Logan J in Greene at [19] and by Farrell J in Turay at [40] ... Contrary to the applicant's submissions, I do not consider that the reasoning in this trio of cases is plainly wrong. Indeed, I consider that it is plainly correct. In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making ...

1. Irrespective of how the Applicant's future may unfold, the Tribunal accepts an adverse decision would be distressing for him and others he may be close to. This has the potential to adversely affect his mental health.
2. On balance, this consideration carries substantial weight in favour of exercising the discretion in the Applicant's favour. This includes because an LTSV application has been lodged for the Applicant, which demonstrates a clear intention by the executive government to remove him to Nauru. This may take some time to play out or for one of the other options discussed above to emerge, leading to the possibility of as prolonged period in detention and continuing visa uncertainty. Such is the significance of legal consequences in the present matter that the Tribunal has decided to treat it as a primary consideration.

(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 following submissions are advanced on the Applicant's behalf:

The applicant suffers a range of health conditions, including: ADHD, PTSD, long COVID, asthma, back and ankle injuries as a result of being assaulted in immigration detention, and an eye injury sustained while on remand. The applicant continues to require treatment in the form of medication (Prazosin for PTSD, Symbicort for long COVID symptoms, and Panadol Osteo and Voltaren for his back, ankle and eye injuries) and ongoing specialised treatment and counselling. > > There remains a real risk that the applicant is removed to Iran, including by constructive refoulement as detailed above. For the much of the same reasons as for the consideration of the legal consequences of the decision, this consideration should weigh very strongly against exercising the discretion to refuse to grant the applicant a Protection visa.

2. The Respondent submits this consideration is only enlivened within the meaning of the Direction if there is a prospect of the Applicant being removed to Iran.
3. The Applicant is 40 years' old. Apart from the mental health conditions diagnosed by Ms Mynard, there is scant reference to the other physical conditions, injuries, or 'ongoing specialised treatment and counselling' he relies upon. The Applicant has not invoked any language or cultural factors. In terms of being able to re-establish himself in his 'home country', the Applicant cannot be removed to Iran because of the 2024 protection finding in his favour. Impediments if removed to Iran therefore do not confront him and this consideration carries neutral weight.

(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. Ms Banerjee contends the Applicant has skills that are 'critical in Australia' and this consideration weighs heavily in his favour:

... > > The applicant...has very specialised skills in engineering and mechatronics and specifically in the repair of machinery in the mining and construction industries. The applicant's skills are in short supply, and critical for Australia's business interests. > > The applicant has been offered full-time employment upon release from immigration detention, by Cooma Projects. Prior to his interview with Cooma Projects, the applicant provided them with a full copy of the criminal brief in relation to his 2023 convictions. Notwithstanding this, due to the applicant's significant and critical skills, he continues to be offered full-time employment. > > This consideration should weigh very heavily against exercising the discretion to refuse to grant the applicant a Protection visa, due to the impact on Australian business interests should the applicant's critical skills not be utilised. [174]

3. There is scant corroboration for the Applicant's educational qualifications and specialised skills. The reference to him having skills in 'short supply' and 'critical for Australian business interests' is also pitched at a high level of generality. It is noteworthy Cooma Projects Pty Ltd was wound up in insolvency by the Federal Court in November 2025.[175] The Tribunal does not accept, given the materials comprising Exhibit T1, that the property development project referred to in Exhibit A2 was awarded to the company now offering the Applicant employment. The tender was instead awarded to a different Queensland-based company. When directed by the Tribunal to corroborate the claim about a comparable project awarded to him at an adjoining subdivision in Cooma, with the exact same number of houses and joint government investment, the author of Exhibit A2 immediately agreed to do so but then failed to. During the resumed hearing on 8 January 2026, Ms Banerjee conceded that the author of Exhibit A2 does not have a contract for either the property subdivision project claimed in Exhibit A2 or a comparable project in an adjoining subdivision. This enlivens concerns that Exhibit A2 contains false or misleading information within the meaning of s 118 of the ART Act. Even if it were accepted there was some alternative role the Applicant could undertake in place of the project set out in Exhibit A2, the oral evidence from the author of Exhibit A2 was that other employees currently do the same work and the Applicant's participation will support faster project completion. Given what has occurred, it remains unclear which project is impacted or could be more speedily delivered.
4. The Tribunal does not accept that a decision against the Applicant in the present matter would 'significantly compromise the delivery of an important service or major project'. Neutral weight is placed on this consideration.

1. The Applicant has repeatedly breached community expectations and aspects of his conduct raise serious character concerns. The totality of his crimes and other misconduct is very serious and reflects a concerning disregard for Australian laws, the rights of others, and custodial rules. The Applicant constitutes a moderate and unacceptable risk of recidivism, which may cause very serious harm if repeated. He should expect to forfeit the privilege of staying in Australia.
2. Notwithstanding more than a decade in Australia, the Applicant has very limited prosocial ties. The legal consequences confronting him weigh most strongly in his favour and, for the reasons earlier adduced, the Tribunal has decided to treat this as a primary consideration.
3. Having weighed all relevant considerations individually and cumulatively, the Tribunal finds the discretion under s 501(1) of the Act should be exercised to refuse the Applicant's visa. That is because the primary considerations Protection of the Australian community, Family violence committed by the non-citizen, and Expectations of the Australian community, considerably outweigh the combined weight given to the countervailing primary and other considerations.

1. It follows that the Tribunal affirms the reviewable decision.

I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the written reasons for the decision herein of Senior Member A. Nikolic

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

[1] Exhibit R1, 48 [41] - 49 [1], 552, 574 [13], 583 [91], 591.

[3] Ibid 534 [105], 575 [24]-[26], 577 [40], 579 [60], 580 [63], 593 [32], 594-595 [Q37], 597, 599.

[8] Ibid 579 [60], 580 [63], 592 [Q15].

[14] Ibid 47 [15], [20], 50 [38].

[17] VSYV and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 10 ('DP Britten-Jones' decision').

[24] PQSM v Minister for Home Affairs [2019] FCA 1540, [22].

[25] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80 [7] (Kiefel CJ, Keane and Gleeson).

[27] The Act, s 499(2A); 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); CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416, 417-8 [4] (Rares, O'Callaghan and Jackson JJ);

[28] 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).

[29] A SFIC is routinely lodged by parties during the pre-hearing phase and is comparable to a pleadings document in a judicial 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.

[36] Exhibit R2, 10-11 [29]-[30]; Exhibit A1, 1 [7]; Applicant's SFIC 3 [12], 7 [25].

[38] Applicant's SFIC, 3 [12.a.iii.].

[39] Exhibit R1, 94 [Statement made by accused].

[49] Ibid 49 [12], 543 [35], 553-555.

[78] Exhibit R1, 378-380. Pursuant to the Road Traffic Act 1986 (Vic).

[79] Ibid 106 [Statement made by accused].

[86] Ibid 45-52, 48 [22]-[27], 51 [28], 102-104.

[90] Ibid 50 [5]-[15]. The definition of family violence at cl 4(1) of the Direction 'includes a person who...has had, an intimate personal relationship with the relevant person'.

[94] Ibid 49 [12], 543 [35], 553-555, 559.

[99] Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 358; Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234 at 244-5_; HZCP v Minister for Immigration and Border Protection_ [2018] FCA 1803, [102] (Bromberg J).

[100] Crimes Act 1958 (Vic), s 197(6).

[101] Applicant's SFIC, 4 [12.b.iii].

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

[104] Under ss 197(7) and 321P of the Crimes Act 1958 (Vic), attempted arson is punishable by a maximum sentence of 10 years' imprisonment.

[105] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ16 [2019] FCA 2033, [74] (Rares).

[106] CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101, 124 [100]; QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394, [74].

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

[108] 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).

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

[110] 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).

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

[112] KDSP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 108; (2020) 279 FCR 1. [51] (Bromberg J).

[113] In George v Rockett [1990] HCA 26; (1990) 93 ALR 483 at [488], the High Court held that this 'requires the existence of facts which are sufficient to induce that state of mind in a reasonable person'.

[114] The Act, s 36(1C)(b); Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, [18].

[118] VSYV and Minister for Immigration and Multicultural Affairs [2024] ARTA 10, [38]-[39].

[119] Applicant's SFIC, 4 [12.b.ii].

[123] Ibid 546-547 [76], [78]-[79].

[131] Sreenivasan et al, 'Addressing Systemic Bias in Violence Risk Assessment' (2022) 50(4) J Am Acad Psychiatry Law 626; Trestman, 'Is justice really blind?' (2018) 46(4) J Am Acad Psychiatry Law 416.

[132] Hogan and Corăbian, 'Investigating racial disparities in violence risk assessment using the Spousal Assault Risk Assessment Guide-Version 3 (SARA-V3): Structured professional judgment ratings and recidivism among Indigenous and non-Indigenous individuals', Psychological Assessment, 36(5), 339-350.

[133] Messing and Thaller, 'Intimate partner violence risk assessment: A primer for social workers' (2015) 45(6) British Journal of Social Work 1804.

[134] Annexure AR-5 to the statement of Andrew Reaper, Royal Commission into Family Violence, being a document prepared by Corrections Victoria regarding the SARA, accessible at .

[135] Exhibit R1, 565 [paragraph 2]; Exhibit A1, 2 [12].

[136] Exhibit R1, 555 [paragraph 1].

[137] Ibid 514-515 [9]-[11], 542 [23].

[145] Applicant's SFIC, 7 [28]; Applicant's reply dated 23 December 2025, 3 [11].

[146] Applicant's SFIC, 8 [30]-[32].

[149] Applicant's SFIC, 8 [36]; Exhibit A1, 2 [10].

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

[153] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2, [23] ('Ismail'); Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at 221 [61].

[154] Applicant's SFIC, 9 [40]-[42].

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

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

[158] NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 97 ALJR 1005

[160] For example, Australia is a signatory to 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).

[161] Ibrahim v Minister for Home Affairs (2019) 270 FCR 12, 35 [103].

[162] 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];

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

[165] Respondent's SFIC, 11, [49]-[54].

[166] Under ss 197C(3)(c)(i) and 197D of the Act.

[167] TCXM v Minister for Immigration and Citizenship & Anor, .

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

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

[170] BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199.

[171] BNGP v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 111; (2023) 298 FCR 609, [101] (Perry J, with Bromwich and Kennett JJ agreeing) ('BNGP').

[172] DOB18 v Minister for Home Affairs [2018] FCA 1523, [35].

[173] Ali v Minister for Immigration and Border Protection [2018] FCA 650, at [28] and [33].

[174] Applicant's SFIC, 20 [105]-[107].