Primary Consideration 1: Protection of the Australian Community

1. The Direction requires me to have regard to the protection of the Australia community from criminal or other serious conduct. Relevantly, paragraph 8.1(1) of the Direction states:

When considering protection of the Australian community, decision-makers should keep in mind that the 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.

1. Paragraph 8.1(2) of the Direction provides that decision-makers should give consideration to the nature and seriousness of the non-citizen's conduct to date, and the risk to the Australian community should the non-citizen commit further offending or engage in other serious conduct.

The nature and seriousness of the Applicant's conduct to date

1. The circumstances of the Applicant's offending were set out in the sentencing remarks provided by Judge Dearden in the District Court in February 2025.[4]
2. In summary, the Applicant and the victim were known to each other. In June 2022 they had both been consuming alcohol with other people known to them. The Applicant attempted to kiss the victim, who told him she had a boyfriend and that he had a girlfriend. The Applicant pulled her into a garden area and cornered her against a tree and attempted to take off her shirt. He began kissing her exposed breasts, who repeatedly told the Applicant "no". He then pushed the victim up against a tree and began unbuttoning her jeans. He then placed his hand under her underwear and digitally penetrated her.
3. In sentencing the Applicant, the Judge Dearden noted that the effect of the offending on the victim's life had been 'very, very significant' and that she often feels uncomfortable with people being close to her. His Honour said the Applicant took advantage of the victim and committed a serious criminal offence against her.
4. The sentencing remarks note that the Applicant had sent text messages to the victim apologising for his actions. The Applicant had also entered a plea of guilty, which meant that the victim was not required to be cross-examined and go through the traumatic experience of being a complainant in a criminal trial.
5. In sentencing the Applicant to a term of two and a half years imprisonment, suspended after serving a period of eight months, the Judge Dearden noted his difficult background, and the hardship that would arise should his visa be cancelled as a consequence of the offence. His Honour stated:

You grew up in Nepal. The deportation will be very difficult for you. You spent your entire life in Australia. It will be very difficult for your partner and your ability to care for your mum and pay off her debt will be very difficult, given you have lived your adult life here in Australia, and ideally take into account all those matters. However, I have to balance that against the very serious nature of the offending, and as best as possible, send a clear message to everyone this is appalling and unacceptable behaviour ... [5]

6. At the hearing the Applicant was asked about the offending, which he conceded was serious. He gave evidence that he is not the kind of person who behaves in this manner and the incident had affected him greatly. He said that every time he thinks about what happened he becomes stressed and numb. He is unable to explain his behaviour towards the victim and is extremely remorseful for his conduct.
7. The Applicant made an application for a Temporary Skill Shortage visa on 28 March 2024. At that time he had been charged with the offence but did not disclose the charge when making the application. He conceded at the hearing that his failure to do so amounted to providing false information.[6] He explained that he had not told his migration agent about the charges because he was anxious and nervous and very few people knew about the offending and criminal charges at that time. I accept that that the Applicant provided misleading information to the department.
8. The offence is the Applicant's only conviction. It follows that there is no indication of increasing seriousness, frequency or cumulative effect of his offending. However, having regard to the Direction, the Applicant's offending should be viewed as very serious as it involved a sexual offence against a woman.[7]

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

1. I am required to consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2(1) of the Direction provides:

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

2. In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and > > b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account: > > > i. information and evidence on the risk of the non-citizen re­ offending; and > > > > ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

3. Should the Applicant repeat similar offending in the future it may expose the Australian community to significant physical, psychological and financial harm. Paragraph 8.1.2(1) of the Direction provides that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The Respondent contends that the Applicant's offending falls into the category of offences whereby 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.
4. The Applicant has demonstrated considerable remorse for his offending and contacted the victim to apologise to her on more than one occasion. He gave evidence that he had spoken to his mother and partner about the offending early on. He is ashamed of what happened and says it does not reflect who he is. He had always been a good person, and is unable to explain why he behaved the way he did. There is no evidence to indicate that he has sought to diminish or avoid responsibility for the offending.
5. The Applicant entered a guilty plea, which as noted in sentencing, would have spared the victim some distress. In his request for revocation, the Applicant noted the harm his offending had caused his partner and mother. The Respondent submits that he lacks insight into his offending, but the Applicant is confident that he will not offend again as he has reflected on himself and the harm that he has done. He says the experience has profoundly affected him and his family.
6. The Applicant has participated in two SMART recovery and life skills classes, which he claims have aided his decision making and helped manage his behaviour.[8] While alcohol played a role in the offending, and SMART recovery may assist in this regard, there is little evidence which suggests the Applicant has an alcohol or substance abuse problem. In any event, I accept the Respondent's submission that his formal rehabilitation is extremely limited and has not targeted sexual offending.
7. I do not have the benefit of a pre-release release report or any formal assessment of risk in relation to the Applicant, but I find there is a low risk the Applicant may reoffend for the following reasons.
8. I accept that the Applicant is genuinely remorseful for his offending and accepts responsibility for his actions. He has the benefit of a strong support network comprised of his partner and friends, which are a protective factor. Although he has not completed rehabilitation programs which address his offending or the drivers of his offending, the offence is his only conviction. There is no evidence of his having offended or engaged in concerning conduct prior to the offence, or after the offence, including after being charged while he remained in the community.
9. While he lacks some understanding of what caused him to offend, he is genuinely remorseful and appreciates the devastating impact his actions had on the victim, his partner and friends.
10. Further, the Applicant is a young man who has been chastened by the consequences of his actions. He lost his job shortly after the offending. The legal consequences of his actions were drawn out - he was not sentenced until two and a half years after the incident and has been in prison or immigration detention since February 2025. As the sentencing judge acknowledged, his removal from Australia will be 'very difficult' for the Applicant.

Conclusion as to the protection of the Australian community

1. The protection of the Australian community weighs against revocation owing to the nature of the offence, which involves a sexual assault. I take into account that the Direction provides that sexual crimes are viewed very seriously and tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.[9] While there is a low risk that the Applicant will reoffend, the primary consideration of the protection of the Australian community weighs strongly against revocation of the cancellation decision.

Primary consideration 2: Family Violence committed by the non-citizen

1. Paragraph 8.2(1) of Direction 110 provides that the Australian government has 'serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia'.
2. Paragraph 4(1) of Direction 110 defines family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person's family or causes the family member to be fearful.
3. As there is no evidence that the Applicant has engaged in family violence conduct, this consideration is not relevant and afforded neutral weight.

Primary Consideration 3: The strength, nature and duration of ties to Australia

1. I am required to consider the impact of the decision on the Applicant'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. I am also required to consider the strength, nature and duration of any other ties that the Applicant has to the Australian community having regard to:

(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

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

ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community

(b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

1. The Applicant has resided in Australia since January 2019 when he was 18 years old. He has spent almost his entire adult life in Australia. The Applicant is in a committed relationship with his de-facto partner and they have been living together since 2019.
2. The Applicant's partner gave evidence at the hearing during which she confirmed she is the holder of a temporary visa which permits her to remain in Australia until November 2027. She plans to apply for permanent residence in the future.
3. The Applicant's removal from Australia would have a significant impact on his partner. She appears to have identified a pathway to obtain permanent residency, but she does not presently have the right to remain in Australia indefinitely. While her interests are not relevant to this primary consideration, I have taken it into account later in these reasons.
4. The Applicant has spent about seven years in the community. He has worked as a chef in various restaurants and has provided statements from four of his employers attesting to his professionalism, honesty and teamwork. They also detail the Applicant's contribution to their businesses and strong interpersonal skills. One referee stated that the Applicant's contribution played a significant role in the restaurant's success.[10]
5. The Applicant has provided evidence that he helped create a fundraising page to help cancer patients.[11] Having heard from the character witnesses called by the Applicant, it is apparent that they value his friendship and are committed to helping him rebuild his life.
6. The Respondent submits that the Applicant's ties to Australia need to be considered in the context of the fact that he did not hold, and has not applied for, a visa that would enable him to remain in Australia permanently. In his December 2018 statement of purpose submitted along with his application for a student visa, the Applicant declared his intention to return to Nepal at the completion of his studies and eventually start his own business.[12] Along with his May 2021 visa application, the Applicant provided a genuine temporary entrant (GTE) statement in which he again stated his intention to return to Nepal and start his own business.
7. While the Applicant has not held a permanent visa in Australia, and has committed to returning to Nepal, he has nonetheless made a positive contribution to the Australian community through his paid employment, education and the friendships he has established. Despite previously undertaking to eventually leave Australia, his intention at this time is to remain in Australia to continue his studies and cancellation of the visa will prevent him from returning to the community. In my view, the temporary nature of the visas he has held and applied for does not detract from the strength or nature of his ties to the community or the distress it may cause to people who have a right to remain in Australia indefinitely.
8. While in Australia, the Applicant has established strong ties in the community and made a significant contribution to the Australian community through his paid employment.
9. This primary consideration weighs in favour of revocation and is afforded considerable weight.

Primary Consideration 4: Best interests of minor children affected by the decision

1. Paragraph 8.4 of the Direction requires the Tribunal to decide whether the cancellation is, or is not, in the best interests of minor children in Australia affected by the decision. This consideration applies only if the child is under 18 years old at the time of the decision.
2. The Applicant has not identified any minor children who would be impacted by a non-revocation decision and this consideration is afforded neutral weight.

Primary Consideration 5: Expectations of the Australian community

1. Paragraph 8.5(1) of the Direction relevantly provides:

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.

1. Paragraph 8.5(3) of Direction 110 states that these expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
2. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant's circumstances or evidence about those expectations. Rather the Tribunal must give effect to the 'norm' stipulated in the Direction.[13]
3. Paragraph 8.5(2) of the Direction provides that the Australian community expects that the Australian Government can and should refuse entry to noncitizens, or cancel their visas, if they raise serious character concerns. On this basis, I accept given the serious nature of the Applicant's offending, the Australian community would expect that the Applicant should not continue to hold a visa.
4. Having regard to the Direction, I afford this consideration moderate weight against revoking the visa cancellation.

Legal consequence of decision under section 501 or 501CA

1. Paragraph 9.1 of Direction 110 requires decision makers to consider the legal consequences of the decision, taking into account any non-refoulement obligations and whether the applicant is covered by a protection finding.
2. In his personal circumstances form, the Applicant expressed concern about the financial implications for he and his family should he return to Nepal. He has also raised concerns about the economic impact of political instability in Nepal and high youth unemployment, which have been taken into account in the other consideration extent of impediments if returned.
3. Based on the information provided, the Applicant's concerns relate to issues that will be faced by the population at large and do not meet the threshold for assessment under Australia's international protection obligations. Should he wish to, it is open for the Applicant to make a protection visa application where his claims can be articulated and fully assessed.
4. Should the decision be affirmed, the Applicant will be liable to removal from Australia as soon as reasonably practicable, and in the meantime, continue to be detained under ss189 and 198 of the Act. Should the visa remain cancelled, the Applicant will be unable to apply for any other visa onshore (except for a protection visa) and he will be unable to satisfy the special return criteria in cl 5001(c) of Schedule 5 of the Migration Regulations 1994 (Cth) which is required for the grant of most visa types.[14]
5. With reference to Stoneley v Minister for Immigration and Multicultural Affairs,[15] the Respondent submits that the Applicant's removal from Australia and indefinite exclusion are intended purposes of the statutory scheme, and the purposes underlie the considerations in the Direction. In so much as there are consequences of the decision beyond the Applicant's removal and indefinite exclusion from Australia, they have been dealt with elsewhere in this decision.
6. Having regard to the Applicant's lifelong exclusion from Australia, and the real prospect of further detention until he is removed, this consideration is afforded some weight in favour of revocation.

1. Paragraph 9.2 of the Direction provides that the Tribunal must consider the extent of any impediments that the Applicant may face if removed from Australia to Nepal, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a) the non-citizen's age and health; > > b) whether there are substantial language or cultural barriers; and > > c) any social, medical and/or economic support available to them in that country.

2. In the 2021 GTE the Applicant stated he was obliged to take care of his parents. He outlined his plan to return to Nepal and work in hospitality to obtain skills and an understanding of the market before opening his own restaurant. He also expressed confidence that he will 'not have to worry about the job opportunities' in Nepal as there is high demand in the tourism and hospitality industries.[16]
3. In his revocation request the Applicant wrote that he used to financially support his widowed mother as her shop was closed during the pandemic, leaving her with debts which he was helping her repay. His mother also has health conditions which require his support.
4. Despite having previously indicated his intention to return to Nepal, more recently the Applicant expressed fears that he would experience severe, long-term financial hardship should he be required to leave Australia. He claims to have limited support and employment opportunities in Nepal and his removal would significantly affect his ability to support both he and his family.[17] The Applicant also claims that political tension and instability in Nepal has negatively affected the economy, employment opportunities and general security in that country. Absent independent information to support these claims, and in circumstances whereby the Applicant has consistently stated his intention to return to Nepal upon completion of his studies, these factors are afforded limited weight.
5. The Applicant is a young man and has not indicated he has any health or medical concerns. Having lived in Nepal until he was 18 years old, he would not be expected to face any significant cultural or language barriers should he return.
6. Having resided in Australia almost his entire adult life, I accept the Applicant may not have existing friendships, support networks and connections in Nepal beyond his mother. Despite the inconsistent evidence regarding the Applicant's employment prospects in Nepal, I accept that the Applicant has obligations to his family, and it will be more difficult for him to fulfill those obligations if he is unable to remain in Australia. While he may experience financial difficulties as he establishes himself and secures regular income, he will be assisted by his Australian qualifications and work experience in the hospitality sector.
7. In any event, the Applicant will have access to basic health and welfare services in Nepal, albeit they may be of a lower standard than in Australia. Although she has indicated her intention to accompany the Applicant should he return to Nepal, there may be a period where the Applicant and his partner are separated. The Applicant will be expected to face emotional hardship should he return without his partner and is distanced from his social network in Australia. Reintegration will be challenging given his limited existing social connections and having resided in Australia since 2019.
8. For these reasons, the impediments the Applicant may face upon his return to Nepal are afforded moderate weight in favour of revocation of the cancellation decision.

1. Paragraph 9.3 of the Direction requires that decision makers consider any impact on Australian business interests if a non-citizen is not allowed to enter or remain in Australia. The Direction provides that an employment link would generally only be given weight where the decision would significantly compromise the delivery of a major project, or delivery of an important service in Australia. However, the Tribunal is not precluded from giving weight to impacts on business interests in other circumstances.[18]
2. The Applicant has worked as a chef in Australia. While he has contributed through his employment in the past, there is no evidence to suggest his removal would compromise a major protect or delivery of an important service. There are no details to confirm he has an offer of employment available to him should he return to the community.
3. I afford this consideration neutral weight.

1. The Applicant and his partner have been in a committed relationship since 2019 and they plan to marry and build a future together. The Applicant's partner stated his removal would be disruptive and devastating for her as she relies on him for emotional support. She does not currently have a right to remain in Australia indefinitely, but when her current visa expires in November 2027, she plans to apply for permanent residency.
2. The cancellation of the Applicant's visa will likely be emotionally difficult for the Applicant's partner. In the short term, cancellation will be expected to prolong her period of separation from the Applicant. In the longer term, she will also need to leave Australia should she and the Applicant marry as planned. Her interests are afforded limited weight in favour of revoking the cancellation of the Applicant's visa.

1. I am required to weigh up the considerations to determine whether there is another reason to revoke the cancellation of the Applicant's visa.
2. The Applicant has one conviction, but his criminal history is serious given the nature of that offence. I have found that there is a low risk that he will reoffend in the future, but given the seriousness of the offence the protection of the Australia community weighs strongly in favour of not revoking the cancellation decision. The expectations of the Australian community are that the Applicant would no longer continue to hold a visa, and they are afforded moderate weight. The primary considerations of family violence and best interests of minor children are not relevant and weigh neither for nor against revocation.
3. The Applicant has developed strong ties to the community and consistently contributed through paid employment. The primary consideration of the strength, nature and duration of his ties to Australia is afforded considerable weight in favour of revocation. The Applicant is young and has previously maintained his intention was to return to Nepal. Nonetheless, the challenges he may face upon return to Nepal are afforded moderate weight in favour of revoking the cancellation of the visa. The legal consequences of the decision and the interest of the Applicant's partner are both afforded some, albeit limited, weight in favour of revocation.
4. On balance, there is not another reason to revoke the cancellation of the Applicant's visa and the reviewable decision will be affirmed.

1. For the reasons outlined above, the reviewable decision is affirmed.

[7] Direction 110, paragraph 8.1.(1)(a).

[13] See FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454 at [75] (Charlsworth J).

[14] See Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003 at [12]-[14].

[15] Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143.

[18] See Arachchi v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1311 at [69] - [70]