......................[SGD].....................................

MIGRATION - Class XE Subclass 790 Safe Haven Enterprise visa cancellation - failure to pass good character test - non-revocation decision - whether there is another reason to set aside the visa cancellation - convicted of Choking suffocation strangulation Domestic Relationship - Domestic Violence Offence and Choking suffocation strangulation Domestic Relationship - stateless Rohingya - Myanmar - Ministerial Direction No. 110

Administrative Review Tribunal Act 2024 (Cth)

Migration Act 1958 (Cth)

Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)

Migration Regulations 1994 (Cth)

Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646

Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561

Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172

BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99

Demir V Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870

Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78

EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173

Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471

Frugtniet v Australian Securities and Investments Commission [2019] HCA 16; (2019) 266 CLR 250

FYBR v Minister for Home Affairs (2019) 272 FCR 454

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

Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144

Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338

Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126

Ibrahim v Minister for Home Affairs [2019] FCAFC 89; (2019) 270 FCR 12

Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; (2016) 241 FCR 461

Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153

Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 271 FCR 326

Matthews v Minister for Home Affairs [2020] FCAFC 146

Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160

Minister for Immigration and Ethnic Affairs v Baker [1997] FCA 105; (1997) 73 FCR 187

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559

Murphy v Minister for Home Affairs [2018] FCA 1924

Nathanson v Minister for Home Affairs [2022] HCA 26

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582

Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10

Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545

Tanielu v Minister for Immigration and Border Protection [2014] FCAFC 673; (2014) 225 FCR 424

Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125

Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 263 FCR 531

Direction No. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024)

1. LJMH seeks review of the Minister's (the Minister or the Respondent) delegate's 31 March 2025 decision (the reviewable decision) under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the 25 November 2024 decision to cancel his Safe Haven Enterprise (Class XE) (subclass 790) visa (the Visa).[1][2]
2. The Tribunal heard the matter in Brisbane on 12 and 13 June 2025. Mr Nikjoo of NikJoo Lawyers represented LJMH. Mr Djasmeini of Minter Ellison Lawyers represented the Respondent. The hearing relied on Mr Haroon, an interpreter.
3. Mr Haroon advised the Tribunal that LJMH had difficulty in reading documents before him when testifying in the witness box due to poor eyesight. The Tribunal responded by displaying the documents on screen in expanded format. The Tribunal also notes that LJMH demonstrated poor English literacy during the hearing and that much if not all of his written statements appeared to have been prepared with another person's assistance.[3]
4. This was an expedited matter. On 23 June 2025, the Tribunal met its obligation[4] by providing a short form decision.[5] The Tribunal now gives its reasons for its decision.

1. LJMH is a forty-seven-year-old[6] stateless Rohingya man from Myanmar. He has resided in Australia since June 2013.[7]
2. On 5 April 2023 His Honour Judge Horneman-Wren SC of the District Court of Queensland convicted LJMH of charges of Choking suffocation strangulation Domestic Relationship - Domestic Violence Offence and Choking suffocation strangulation Domestic Relationship. The judge sentenced LJMH to four years' imprisonment against a maximum possible penalty of seven years' imprisonment, to be suspended for five years after LJMH had served sixteen months (the Index Offences).[8] LJMH has also been convicted or charged with other criminal offences (the Offending Record) which are addressed below.
3. On 25 November 2024 the Respondent cancelled LJMH's Visa. LJMH made representations. On 31 March 2025, the Respondent's delegate issued the reviewable decision and notified LJMH of their decision on the same day by email.[9]
4. On 7 April 2025, LJMH applied to the Tribunal for a review of the reviewable decision.[10]

1. The Tribunal's jurisdiction here stems from Section 13 of the Administrative Review Tribunal Act (the ART Act) and s 500 of the Act.
2. Under s 501CA of the Act, the Respondent may revoke a visa cancellation decision if:

(a) representations have been made by the person in accordance with the invitation;[11] and > > (b) the Respondent is satisfied that: > > > (i) the person passes the character test;[12] or > > > > (ii) there is another reason why the original decision should be revoked.[13]

3. The Tribunal is satisfied that LJMH made the representations required by s 501CA(4).[14]

1. The Respondent's delegate cancelled LJMH's Visa on the basis that he had failed the character test.[15][16] This followed a consideration of the test against LJMH's criminal record.[17]
2. The Tribunal is satisfied, based on its own evaluation of LJMH's criminal record that he does not pass the character test.[18]
3. Section 501CA(4) of the Act is a discretionary power to revoke a cancellation decision. The Minister or their delegate can revoke the cancellation if they are satisfied that the person passes the character test or that there is another reason why the original decision should be revoked. This latter question is the Tribunal's task in this matter.[19]
4. When deciding whether there is another reason to set aside a visa cancellation, s 499(2A) of the Act requires the Tribunal to comply with Direction 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[20]
5. The Tribunal can choose how to conduct its procedures. It can be informal and less technical as long as it fairly considers the matters at hand. [21] Section 52 of the ART Act states that the Tribunal does not have to follow strict evidence rules. Instead, it can decide how to gather information in a way it finds suitable.
6. Paragraph 5.2[22] sets out principles that provide a framework within which the Tribunal should approach its task.[23]
7. Paragraph 6 of the Direction provides that, informed by the above principles, a

decision-maker must consider the Primary and Other Considerations described in Paragraphs 8 and 9 of the Direction where relevant to their decision‑making. Primary Consideration 1 is generally to be given greater weight than other primary considerations. 8. Paragraph 8 identifies the Primary Considerations and Paragraph 9(1) sets out a non-exhaustive list of Other Considerations. 9. The Tribunal may find that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. Each matter's circumstances affect this weighting.[24] The individual and cumulative weighing process is a matter for individual decision‑maker exercising the relevant power under the Act.[25]

1. The Tribunal received written evidence during the hearing. The exhibit register is attached to this Decision and marked 'Annexure A'.
2. Both parties' Statement of Facts, Issues and Contentions (SFICs)[26] are included within Annexure A.
3. The Tribunal also heard testimony from LJMH and Mr Gray.

PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

1. The Direction states that, for Primary Consideration 1, the Tribunal must remember that the safety of the Australian community is the Government's top priority. The Government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens. Serious conduct can include behaviour or conduct that does not constitute a criminal offence.
2. The Tribunal has considered the nature and seriousness of LJMH's conduct to date and assessed the relevant evidence and contentions.
3. Applying Primary Consideration 1, Paragraph 8.1(2) of the Direction requires decision-makers to consider two limbs of inquiry:

(a) the nature and seriousness of the non-citizen's conduct to date; and > > (b) the risk to the Australian community if the non-citizen commits further offences or engages in other serious conduct in the future.

Paragraph 8.1.1: The Nature and Seriousness of LJMH's Conduct to Date

1. Paragraph 8.1.1(1) sets out a series of factors (in subparagraphs (a) to (i)) for the Tribunal to assess. The Tribunal, where relevant, must consider these when considering the nature and seriousness of LJMH's criminal offending or other conduct to date.
2. The Index Offences are described in the sentencing judge's reasons.[27]
3. LJMH's Offending Record includes incidents of family violence as well as breaches of orders.[28]
4. Summarising Mr Djasmeini's contentions about this element of Primary Consideration 1, as the Tribunal understands them:[29]

(a) Paragraph 8.1(2) requires decision-makers to consider both the nature and seriousness of the non-citizen's conduct to date, and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. The Respondent contends that this factor weighs determinatively against revocation.

(b) When assessing the nature and seriousness of conduct, Paragraph 8.1.1 establishes specific factors that decision-makers must consider regarding the applicant's criminal offending or other conduct. The Respondent submits that LJMH's overall offending should be viewed as very serious based on several key considerations.

(c) LJMH has demonstrated a pattern of multiple acts of family violence, primarily directed against his former wife. These incidents involved serious physical violence, including whipping his former wife and throwing a box of mangoes at his son, with these acts being perpetrated in the presence of his children. Such conduct falls within the serious considerations outlined in Paragraphs 8.1.1(1)(a)(ii) and (iii).

(d) The judicial assessment of LJMH's conduct emphasises its severity. Regarding the 2023 convictions, Judge Horneman-Wren characterised LJMH's behaviour as "protracted violent offending." The judge additionally noted that the effects of the assault continued to affect the victim, who remained fearful for her safety upon LJMH's potential release[30], as referenced in Paragraph 8.1.1(1)(d).

(e) LJMH's 2024 convictions, while not involving physical violence, were nonetheless treated with utmost seriousness by the judiciary. Magistrate Schubert described the offending as "perhaps the most serious of threats that this court sees" and expressed concern that "it is a great risk for [LJMH] to return to that community."

(f) The imposition of custodial sentences serves as an objective indicator of the seriousness of the offences involved, as established in Pavey and Minister for Home Affairs [2019] AATA 4198 at [44]. While Direction 110 does not require this matter to be taken into account under Paragraph 8.1.1(1)(c), the sentences of imprisonment imposed provide additional evidence of the gravity of LJMH's conduct. Consequently, the Respondent maintains that the Tribunal must treat LJMH's criminal offending as very serious.

1. Summarising Mr Nikjoo's contentions here as the Tribunal understands them:[31]

(a) LJMH's criminal history encompasses four domestic violence-related offences spanning a ten-year period, commencing in 2015. Of these offences, two involved physical contact, while the most recent incident constituted verbal threats made in breach of a Domestic Violence Order (DVO). It is significant to note that LJMH has no history of criminal offending beyond these four matters. > > (b) The latest offence, while acknowledged as serious, was subject to mitigating circumstances as recognised by the sentencing Magistrate. These mitigating factors included LJMH's early plea and demonstrated remorse, which led the Magistrate to grant immediate parole eligibility. The sentence imposed was proportionate, considering that the offence carried a maximum penalty of five years imprisonment. > > (c) LJMH's offending occurred within a defined temporal period and specific contextual circumstances, rather than reflecting a sustained pattern of criminal behaviour as contemplated by Paragraph 8.1.1.(1)(e). This temporal limitation supports an assessment that LJMH possesses the capacity to renounce unlawful conduct and live in accordance with Australian law. Notably, LJMH has maintained a clean record for nearly two years since his last offence. > > (d) Evidence of LJMH's genuine rehabilitation efforts is demonstrated through his conduct while in custody, as documented in records provided by Queensland Corrective Services. Throughout his incarceration at Brisbane Correctional Centre, LJMH has engaged constructively, reflecting both a commitment to personal improvement and a positive contribution to the custodial environment. > > (e) LJMH's current personal circumstances constitute a mitigating factor when assessing the risk he may pose to the Australian community. The sentencing Magistrate's decision to grant parole eligibility on the same day as sentencing provides further support for this assessment. The Magistrate specifically acknowledged the timeliness of the plea, stating: "It is a timely plea in the circumstances. I reduce the penalty because of that." This judicial recognition of LJMH's early plea and the grant of immediate parole eligibility indicates the court's acknowledgment of his remorse and acceptance of responsibility. > > (f) These factors collectively support a finding that LJMH does not present an unacceptable risk to the Australian community and has demonstrated a genuine intention not to re-offend. This assessment is not intended to excuse or diminish the seriousness of LJMH's conduct in any way. LJMH fully recognises the gravity of his actions and expresses sincere remorse for the harm caused. > > (g) As established in relevant case law, these considerations are particularly important when assessing the nature and seriousness of offending. In Cotterill v Minister for Immigration and Border Protection [2016] FCAFC 61, North J emphasised at [91] that it is not possible to reach a legally reasonable conclusion about the seriousness of an offence without informative details of the actual circumstances involved. Similarly, in NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38, Buchanan J stressed at [202] and [207] that a visa applicant or former visa holder is entitled to have their application assessed with proper regard to the merits of their particular circumstances. The most reliable guide to the objective seriousness of a particular person's offences derives from a comprehensive understanding of the actual circumstances involved in the various offences and their sentences.

The Tribunal's consideration: The nature and seriousness of LJMH's conduct

1. When assessing the nature and seriousness of LJMH's criminal offending or other conduct to date, the following elements of paragraph 8.1.1(1) are relevant:
   • Whether LJMH's criminal offending and conduct to date belongs within the enumerated types of crimes or conduct viewed very seriously or seriously by the Australian government and the Australian community;[32]
   • the sentences imposed for his criminal offending subject to the stated exceptions;[33]
   • the impact of his offending or other conduct on any of its victims and their families, where information in this regard is available and where LJMH has been afforded procedural fairness;[34]
   • the frequency of his offending and the trend of increasing seriousness;[35] and
   • the cumulative effect of his repeated offending.[36]
2. LJMH's Offending Record[37] includes violent crimes against a woman, his former wife, who was at the time of offending part of LJMH's immediate family. Applying Paragraph 8.1.1(1)(a)(i), (ii) and (iii),the Tribunal considers that LJMH's conduct in relation to these crimes should be viewed as very serious.
3. Evidence[38] before the Tribunal indicates that LJMH committed a violent act against his son, although this was partly contested on some of the details (such as the nature of the item thrown against his son) by both LJMH and Mr Gray in oral evidence. The Tribunal finds that the evidence, including LJMH's common assault conviction, activates Paragraph 8.1.1(1)(b)(ii).
4. LJMH's Index Offences should be considered violent crimes. Addressing Paragraph 8.1.1(1)(a)(i) and Paragraph 8.1.1(1)(c), his four year sentence of imprisonment, suspended after sixteen months in jail and considered relative to a maximum possible sentence of seven years in jail, can be characterised as falling in the middle of the scale in terms of severity.
5. Applying Paragraph 8.1.1(1)(d), there is evidence of the Index Offences' impact on LJMH's victims.[39]
6. Applying Paragraphs 8.1.1(1)(e) and (f), the Tribunal characterises LJMH's Offending Record[40] as commencing in 2015, some two years after his arrival, then building in frequency and seriousness from 2022 to 2023. Aside from the impact on the victims, especially in the 2022-2022 period, the cumulative impact on the Australian community and its police, judicial and prison services would appear to have been sustained and substantial.

The Tribunal's findings: The nature and seriousness of LJMH's conduct.

1. Having regard for the framework principles at Paragraph 5.2 of the Direction and the relevant and applicable aspects of Paragraph 8.1.1 referred to above, the Tribunal finds that LJMH's offending should be characterised as very serious.

Paragraph 8.1.2: The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

(a) In considering the need to protect the Australian community, the Tribunal should consider that the Australian community is less willing to accept any risk of harm if the potential harm is serious. If certain actions are very harmful, even the possibility of them happening again may be too much of a risk to accept.

(b) When deciding whether a non-citizen poses a risk to the community, decision‑makers should cumulatively consider:

1. How serious the resulting harm would be if the non-citizen committed another serious crime or engaged in serious conduct.
2. How likely it is that the non-citizen will commit another crime, looking at:
   • Evidence of how likely they are to re-offend.
   • Any rehabilitation they have undergone by the time of the decision, and how long they have been out of trouble.

(c) The objective is to carefully weigh the seriousness of the possible harm if the non-citizen re-offends, the likelihood of their re-offending, and any evidence of change when making decisions about a non‑citizen's risk to the community.

1. Summarising Mr Nikjoo's contentions on LJMH's risk of re-offending as the Tribunal understands them:[41]

(a) LJMH's refugee background and gambling addiction constitute relevant and mitigating factors when assessing the nature and seriousness of his offending. The Australian Institute of Family Studies has recognised that traumatic pre-arrival experiences can impair an individual's capacity to cope in a new environment and may exacerbate challenges in family functioning during and after settlement. This contextual understanding was acknowledged by the court during sentencing, which recognised LJMH's refugee background as a relevant consideration. It is appropriate to conclude that an individual's moral culpability may be diminished where their offending is shaped by significant trauma and displacement. > > (b) In assessing whether LJMH poses an unacceptable risk to the Australian community, reliance is placed on the reasoning of Deputy President Tamberlin QC in WKCG[42]. Although that matter concerned s 36(1C) of the Act, the risk assessment undertaken by the Tribunal is equally instructive in the context of s 501. Notwithstanding the seriousness of the offending in WKCG, the Tribunal concluded that, having regard to WKCG's overall circumstances, he did not pose an unacceptable risk to the community. > > (c) Deputy President Tamberlin emphasised that the decision-maker's role is not to determine whether LJMH poses any risk, but whether the level of risk is unacceptable in the particular circumstances of the case. Importantly, the Tribunal noted that the nature of past offending does not necessarily have to be causally linked to the type of risk currently posed. > > (d) Two major underlying factors have contributed to LJMH's offending conduct over the years: his deteriorating physical health and his longstanding gambling addiction. LJMH's gambling addiction has been a significant contributor to his past instability and impulsive behaviour. He acknowledges that gambling fuelled his aggression and impaired his self-control. Notably, since entering custody, LJMH has experienced his first extended period of abstinence from gambling in over 25 years. He has demonstrated that he can earn an income and use it responsibly, demonstrating a growing sense of financial literacy and self-discipline. > > (e) Furthermore, LJMH suffered a heart attack upon release from custody, an event that left him physically debilitated and emotionally overwhelmed. He recounts feeling powerless and filled with anger, particularly towards himself, which he regrettably directed at those closest to him. He acknowledges that while these circumstances do not excuse his behaviour, they help contextualise his actions during that period. > > (f) LJMH acknowledges that unresolved trauma from a violent and unstable upbringing, witnessing the death of his brother, and fleeing his home has significantly impacted his mental health. He now recognises the role this trauma has played in his past behaviour and intends to continue seeking professional counselling to address it. > > (g) When properly contextualised, the evidence does not support a finding that LJMH poses an unacceptable risk to the Australian community, either through further offending or other serious misconduct. LJMH acknowledges that, due to his criminal history, this primary consideration weighs against him. However, given the nature of LJMH's offending, being confined to domestic incidents involving his former wife and his children, with no history of violence or offending against the wider community, the Tribunal should have no difficulty assigning this primary consideration lesser weight. > > (h) Furthermore, LJMH poses no discernible risk to the broader Australian community. Accordingly, the weight of this consideration, whether viewed individually or collectively, should not outweigh the compelling considerations that favour the revocation of the visa cancellation.

2. Summarising Mr Djasmeini's contentions here as the Tribunal apprehends them:[43]

(a) Paragraph 8.1.2(2) requires the Tribunal to have cumulative regard to both the nature of harm to individuals, or the Australian community, should LJMH engage in further criminal or other serious conduct, and the likelihood of LJMH engaging in such conduct. This assessment must consider information and evidence on the risk of re-offending, as well as evidence of rehabilitation achieved by the time of the decision, while giving weight to time spent in the community since the most recent offence. > > (b) Regarding the nature of harm, should LJMH re-offend by committing domestic violence offences, the potential consequences include physical harm up to and including the possibility of death. Such offending may also result in ongoing psychological consequences for victims and others, as well as broader financial and other consequences to the justice and health systems. The National Plan to End Violence against Women and Children 2022-2023 reports that, on average, one woman is killed by an intimate partner every ten days, and violence against women and their children results in an overall economic cost of $26 billion annually, with victims bearing approximately 50 percent of that cost. > > (c) The Respondent contends that domestic violence offending is so serious that any risk of repetition is unacceptable, as outlined in Paragraph 8.1.2(1). The nature of harm resulting from domestic violence offending was comprehensively explained by Deputy President Kendall in XFKR and Minister for Immigration and Border Protection_[44]_ at [45], who noted that in a society adhering to fundamental sex equality principles, gendered violence directed at women is both individually and systemically intolerable. The harm is threefold: it results in direct physical and psychological harm to the women targeted; it psychologically harms children who witness their mothers being abused and sends a message that such behaviour should be tolerated; and it normalizes socially enforced gender imbalances that perpetuate sex-based inequalities and violence. > > (d) LJMH submits that two major circumstances surrounding his offending conduct were his health issues and gambling addiction, contending that these circumstances no longer exist and therefore he does not pose an unacceptable level of risk to the community. > > (e) The NSW Police Facts Sheets acknowledged that many domestic violence incidents arose due to the accused's severe gambling addiction, which placed great financial strain on the marriage. > > (f) LJMH indicates that his intention is to continue seeking professional counselling and states he would have the support of friends to reintegrate into society. He has expressed regret for his actions, acknowledging that he wrongly took his anger out on others, with his problems arising from gambling and traumatic experiences. > > (g) The Respondent acknowledges that LJMH made admissions and entered early guilty pleas to the 2023 and 2024 convictions. However, the Respondent contends that the Tribunal cannot safely conclude that LJMH is genuinely remorseful and has developed insight into his offending. In his personal circumstances form, LJMH stated that he "pleaded guilty to lesser charges to get my court case over + done with," suggested that his former wife and her friends "accused me of the D/V related offences," and claimed his former wife "weaponised" his children against him. Furthermore, LJMH attributed the relationship breakdown to lending money to his former wife's family that was not repaid. Queensland Corrective Services records from September 2019 noted that LJMH stated "he believes that he has done nothing wrong." The Respondent submits that these statements contradict LJMH's stated remorse and insight into his offending. > > (h) The Respondent further contends that there is no evidence demonstrating that LJMH has engaged in meaningful rehabilitation. While LJMH acknowledges this lack of engagement and attributes it to his struggles with English, the only evidence of course completion relates to a six-hour Explore Program concerning drugs, which does not appear relevant to the behaviours underlying his offending. Although LJMH has stated plans to undertake courses with Relationships Australia Queensland and the Gambling Help Program and to see a counsellor, the prospects of successful engagement and completion remain speculative and untested. Notably, LJMH previously had opportunities to engage in rehabilitation but failed to do so, and previous periods of incarceration have not produced any salutary effect. > > (i) The Respondent contends that the Tribunal should afford this primary consideration significant weight against revocation, noting that this consideration should generally be given greater weight than other primary considerations as specified in Paragraph 7(2). Applying the principles outlined in Paragraphs 5.2(3) and (5), the Respondent contends that the harm that could result from future similar offending is so serious that any countervailing considerations are insufficient to justify revoking the mandatory visa cancellation.

3. The Tribunal has described its concerns above about LJMH's written and verbal English skills that it observed during the hearing.
4. In cross-examination, Mr Djasmeini took LJMH through his domestic violence offences and charges. LJMH sought at times to either minimise his responsibility or to qualify the written evidence records put to him, claiming on several occasions that the account was incorrect or that his sister-in-law had "set him up" without giving more details. [45]
5. LJMH also disputed his guilt on specific offences for which he had legal representation and was convicted. At times it appeared to the Tribunal that he did not fully accept Australian law on an issue, such as the October 2024 Queensland Magistrates Court decision.[46]
6. Balancing against these behaviours and statements were his affirmations that he acknowledged and accepted his offending and stated that there was no chance of him reoffending. He described his diabetes, his heart condition and his reliance on CentreLink payments to support himself.
7. His oral evidence demonstrated that two drivers of his offending between 2019 and 2023 were his gambling addiction and his problematic relationship with his former wife and her family.[47]
8. LJMH stated that he has stopped gambling. The Tribunal notes that while this claim was not contested in the hearing, he has been in prison or detention and his cessation of gambling has not been tested in the community.
9. Addressing his rehabilitation, he stated that he had contacted Valley Hearts but had not undertaken any actual courses with that organisation as yet. He said that he is undertaken two rehabilitation courses in prison, one of one day's duration and one of several days' duration. He undertook the Explore Course in January 2025.
10. He stated that he had applied for many rehabilitation courses in prison but because of his language difficulties he did not get offered enrolment.
11. He also stated that he had briefly seen a counsellor in Sydney before he moved to Queensland. Since coming to Queensland in 2020 he had not done anything else in terms of counselling to treat his gambling addiction until he went into jail.[48]
12. He described his imprisonment as good but tough and that he is a good prisoner who works in the jail laundry, which is supported by the documentary evidence.[49]
13. He claims that he does not know where his former wife now lives, reducing the risk of re-offending against her. His plans after prison are to live with his friends Rashida and Salim who had also offered him employment.[50] In cross-examination, he acknowledged that his offending had broken his family.
14. He disputed his conviction where the sentencing court found that he threw a box of mangoes at his son. He stated that he did not accept this as correct. He consistently said that in several of his court appearances he received legal advice to the effect that the claims were small and that he should plead guilty so that he could go home.[51] He did concede that he committed these offences because of his gambling addiction.
15. The combination of these consistent claims and his poor English literacy is of concern to the Tribunal.
16. When cross-examined about why he did not undertake rehabilitation after his release from prison he stated that he did not have an opportunity to seek assistance for a counsellor because he was worried about his health issues and then he was subsequently rearrested before he could make an appointment.
17. Mr Djasmeini put to LJMH that during his 2023 offending his former wife claimed that he had said words to the effect of 'I don't care about Australian law'.[52] LJMH denied this.
18. In relation to the issue of his loan to his brother-in- law he told the Tribunal that it had not been repaid and that he had written it off. Further questioning on whether he was planning to do anything about the loan resulted in his answers that he is not going to seek repayment, but he will seek legal help in order to be able to see his children if he is released.
19. In his testimony, Mr Gray reiterated that he considered LJMH to be genuinely remorseful based on their private conversations

The Tribunal's finding: The nature of the harm to individuals or the Australian community were LJMH to engage in further criminal or other serious conduct

1. The Tribunal's evaluation of the evidence about LJMH's Index Offences and Offending Record leads it to find that he may cause serious physical and psychological harm to members of the Australian community if he re-offends like he did in his Index Offences or on his overall Offending Record.

The Tribunal's consideration: The likelihood of the non-citizen engaging in further criminal or other serious conduct

1. Assessing the likelihood or risk of LJMH engaging in further criminal or serious conduct, the Tribunal has evaluated and considered the documentary and oral evidence before it.
2. To start, the Tribunal notes that the relevant threshold is whether there is 'a' risk.[53]
3. Both superior courts and the Tribunal have extensively considered the issues surrounding the assessment of risk under s 501(6)(d) of the Act, from which Paragraphs 8.1.2(1) and (2) are drawn.[54]
4. This assessment requires a 'future‑focused assessment'[55] of the risk an applicant poses should they reoffend, taking into consideration the nature of any harm and its probability.
5. In Minister for Immigration and Ethnic Affairs v Guo (Guo),[56] the High Court held that past actions are legitimate but qualified predictors of future behaviour. The majority observed that past events 'are not a certain guide' and, depending on 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'.[57] The majority also observed there are several factors in making such evaluations, and that it is 'ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events'.[58]
6. The Tribunal must determine the realistic level of risk posed by LJMH as at the time of its decision,[59] with the question being "how serious the risk [is], or whether the risk should be "tolerated"'[60], to the extent that it could be considered an unacceptable risk.[61]
7. When assessing whether LJMH poses more than a minimal or trivial likelihood of risk, the Tribunal must consider all available information and evidence pertaining to his risk of re-offending and the rehabilitation achieved[62], recognising that the Australian community may accept some risk associated with non-citizens holding visas. However, as Senior Member Taylor observed in Dharma and Minister for Home Affairs[63], the community's tolerance is qualified where the degree of acceptable risk is inversely related to both the likelihood of re-offending and the type of possible harm that could be caused by such further offending.
8. The Tribunal's consideration of the risk or likelihood of LJMH engaging in further criminal or serious conduct will involve assessing the factors that:

(a) facilitate the risk; or, > > (b) conversely, hinder or retard the risk.

9. Adopting this approach enables the Tribunal, in making its assessment, to address Justice Mortimer's question in Murphy as to 'whether the risk should be "tolerated"' by the Australian community.

The factors that facilitate the risk of re-offending.

1. Based on the evidence, the Tribunal considers that LJMH's gambling addiction, related financial pressures and volatile personal relationships have contributed to his offending. His diabetes and his heart condition are also possible contributors.[64]
2. The uncontested historical trauma he experienced before arriving in Australia may also have contributed but there is no expert evidence before the Tribunal to assist in this respect.[65]
3. The Tribunal also finds that the volatile nature of his marriage relationship drove much of his 2019 - 2023 offending.[66]

The factors that hinder or reduce the risk of re-offending - Rehabilitation, remorse and other factors

1. LJMH has undertaken some formal rehabilitation, largely in jail. His language difficulties, based on his written[67] and oral evidence, create barriers to him accessing programs. He testified about his future plans to undertake rehabilitation once released from jail.
2. His oral evidence suggests that he has gained insight into his gambling addiction. He claims to have stopped gambling while in jail. Until his resolve not to gamble is tested in the community, this insight's practical effect is unknown.
3. He attested to his remorse and acceptance of responsibility during his testimony, which aligned with his written statement.[68]
4. The oral evidence of LJMH and Mr Gray suggests substantive behavioural change, especially while in jail. His good conduct while working in the jail laundry is documented.[69]

The Tribunal's Risk Analysis and Consideration

1. The Tribunal has evaluated the evidence above, especially the factors that appear to have contributed to LJMH's offending, his history of remorse, his rehabilitation efforts and the factors that hinder or reduce his risk of offending.
2. It has applied Guo in its evaluation_,_ acknowledging how past events help predict the future depends on:

(a) how likely those events happened, > > (b) how often they occurred, > > (c) the conditions surrounding them, and > > (d) the chance that new events could change the usual pattern.

3. In deciding if LJMH might re-offend, the Tribunal also considered his Index Offences, his qualified expression of remorse, his poor English skills, his historic trauma, his health condition and his behavioural changes. It also assessed how unacceptable the consequences of his future actions could be for the Australian community.

The Tribunal's finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

1. The Tribunal finds that a risk exists to the Australian community should LJMH commit further offences or engage in other serious conduct.
2. The Tribunal, after evaluating the factors described above in terms of what either may facilitate or hinder his re-offending, considers this re-offending risk to be material. It is not negligible but LJMH's work on changing his behaviours and gaining insight suggest that neither is the risk so high as to be a near-certainty.
3. The adverse consequences if LJMH were to re-offend in the same manner as the Index Offences or his Offending Record are substantial. The Australian community's tolerance for such re-offending is likely negligible. The Tribunal finds that the combination of risk, LJMH's limited rehabilitation and his extant protective factors combine to produce a risk that is not tolerable.

Conclusion: Primary consideration 1: Protection of the Australian community

1. The Tribunal finds LJMH's Index Offences are very serious. Future offences like his could harm the Australian community. The chance of him re-offending is material. Given the serious nature of the Index Offences and his record, the Tribunal considers, based on its findings, that the combination of the material risk of repeating these actions combined with the consequences his poor English literacy may be a mitigating factor is unacceptable.
2. The Tribunal further finds that, in its totality, this consideration weighs strongly in favour of affirming the reviewable decision.

PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN**

1. Paragraph 8.2(1) reflects the Australian government's concern about conferring the privilege of entering or remaining in Australia on non-citizens who commit acts of family violence. This consideration is enlivened where a non-citizen has been convicted of, found guilty of, or had charges proven for offences involving family violence, and/or where there is information or evidence from independent and authoritative sources indicating the non-citizen is or has been involved in perpetrating family violence, provided the non-citizen has been afforded procedural fairness.
2. The High Court has held that Paragraph 8.2 of a previous but comparable Ministerial Direction (Direction 90) 'involves a field of operation separate' to the other primary considerations.[70]
3. When considering the seriousness of family violence engaged in by a non-citizen, Paragraph 8.2(3) requires assessment of several factors including the frequency of conduct and any trend of increasing seriousness, the cumulative effect of repeated acts of family violence, and rehabilitation achieved since the person's last known act of family violence.
4. The rehabilitation assessment encompasses the extent to which the person accepts responsibility for their family violence conduct, understands the impact of their behaviour on victims and witnesses (particularly children), and has made efforts to address contributing factors. Additionally, consideration must be given to whether the non-citizen has re-offended since being formally warned by a court, law enforcement, or other authority about the consequences of further family violence acts, including warnings about migration status implications, noting that the absence of such warnings should not favour the non-citizen.

The Tribunal's consideration: Family violence committed by the non-citizen

1. As the Tribunal understands Mr Djasmeini's contentions:[71]

(a) When assessing the seriousness of family violence, Paragraph 8.2(3) specifies several mandatory factors for consideration where relevant. These include the frequency of LJMH's conduct and whether there is any trend of increasing seriousness, the cumulative effect of repeated acts of family violence, and rehabilitation achieved at the time of decision since LJMH's last known act of family violence. > > (b) The rehabilitation assessment encompasses the extent to which LJMH accepts responsibility for their family violence-related conduct, the extent to which LJMH understands the impact of their behaviour on the abused and witnesses of that abuse (particularly children), and efforts to address factors that contributed to their conduct. > > (c) LJMH was convicted of multiple domestic violence offences, most of which were perpetrated against his former wife in the presence of their children, with one occasion of family violence perpetrated against his son. The Respondent contends and LJMH accepts that he has been convicted of offences involving family violence, which LJMH accepts. > > (d) While there is no evident trend of increasing seriousness, the Respondent submits that LJMH's acts of family violence have been frequent. Furthermore, in relation to LJMH's 2019 conviction and 2023 convictions, he was issued an apprehended domestic violence order and a protection order respectively, protecting his former wife and children. Despite these formal warnings, LJMH continued to commit further acts of family violence. > > (e) The Respondent contends that there is limited evidence demonstrating that LJMH has addressed his offending behaviour. LJMH appears to blame his former wife for his offending behaviour. Furthermore, he has demonstrated no insight into the impact of his offending on his former wife or on his children who were witnesses to the offending, failing to meet the criteria outlined in Paragraphs 8.2(3)(c)(i) and (ii). > > (f) The Respondent contends that offending involving actual, threatened, or implied family violence is of special concern to the Australian community because of the particular vulnerability of victims who are dependent on the perpetrator and the very harmful impact of such conduct on family life. Therefore, the Respondent contends that this primary consideration weighs significantly in favour of non-revocation of the visa cancellation.

2. The Tribunal understands Mr Nikjoo's position on this consideration as follows:[72]

(a) LJMH acknowledges that the relevant offences constitute family violence, which is recognised as an aggravating factor when assessing the seriousness of the conduct and the risk he poses to the Australian community. > > (b) However, it is submitted that LJMH's history of family violence is not characterised by high frequency or escalating severity as contemplated by Paragraph 8.2(3). Notably, the most recent incident in 2023 does not indicate a trend of increasing seriousness. > > (c) LJMH fully accepts responsibility for his actions and does not seek to minimise or excuse his behaviour. He demonstrates insight into the impact of his behaviour, particularly on his former wife and children, and expresses unconditional remorse. Furthermore, he has taken meaningful steps to address the underlying causes of his offending, including a commitment to seek counselling, participate in anger management and gambling addiction programs, and adhere to treatment for his physical health conditions. > > (d) While in custody, LJMH has already commenced the rehabilitation process by completing available programs and has expressed a strong desire to continue his education post-release. His efforts to overcome language barriers to engage with support services further demonstrate his commitment to rehabilitation and a law-abiding future. LJMH is also eligible for community-based rehabilitation programs and has indicated his intention to enrol in Relationships Australia Queensland's Men's Behaviour Change Program. His willingness to participate in such programs reflects his acceptance of personal responsibility and significantly mitigates the risk of reoffending, as contemplated by Paragraph 8.2(3)(c)(i)(ii)(iii). > > (e) LJMH acknowledges that this primary consideration is the strongest against him. However, similar to the first primary consideration, it is submitted that the weight of this factor, whether considered individually or collectively, should not outweigh the other compelling considerations in his favour.

3. When cross examined LJMH did not accept that he had whipped and kicked his former wife. He claimed that she was upset that he admitted to losing $5000 in gambling that day and that she had made things up in order to put him in jail.[73]
4. In relation to the mango box incident, he did not accept the charge that he had held a knife to his former wife's neck. Instead, he stated that he had held her and choked her and dragged her by the hair but he that he had not had a knife. He accepted that he had punched his former wife and apologised for doing so, acknowledging that this is not 'good behaviour'. He did not accept that he had thrown a mango box at his son.[74] He also rejects the claim that the incidents happened in front of his children.
5. LJMH asserted that his former wife, despite having a DVO in place, invited him to the home. When he arrived, she would not open the door. He kicked the door and she opened it. Going inside he saw the children sitting around the table. He took his former wife to her bedroom and hit her on her shoulder and back and also choked her. When asked whether he was blaming his former wife for what happened, he said that he was not blaming her for everything but that she had made up many things.[75]
6. Rejecting the charge that on the morning after this offending he had taken his former wife's car without permission, his uncontested claim was that he bought the car and it was primarily used by her. The Tribunal cannot impugn the conviction in relation to the related offence but notes that the Respondent did not introduce evidence as the car's ownership.[76]
7. When questioned about the toxic nature of the relationship he had with his former wife, he said the main reason was the toxicity comes from her, his gambling and his asking her and her brothers for repayment of his loan to her brothers.

1. The Tribunal, differently constituted, has previously noted that violence against women and girls is devastatingly pervasive and 'all too frequently committed by an intimate male partner'.[94]
2. The Tribunal finds that LJMH committed acts of family violence against his former wife, being a member of his immediate family at the time of the offending (but not presently), and because he has been convicted of offences that involve family violence as defined in the Direction.[77]
3. The frequency between 2022 and 2023 of his family violence offending, evidenced by his convictions,[78] is material.
4. The Tribunal finds that the cumulative impact of these repeated acts of family violence was also material, based on the evidence.[79]
5. The Tribunal finds that LJMH does not fully accept responsibility for his family violence conduct despite his convictions. He appears to recognise the impact of his actions on his children.[80] His efforts to address the behaviour and factors that contribute to his family violence conduct appears limited to static factors such as not knowing where his former wife lives.[81] His limited rehabilitation efforts are more focused on gambling than family violence.[82]
6. The Tribunal considers and finds that his poor English literacy may be a mitigating factor here, especially when assessing his qualified or limited objections to some of his family violence conduct and convictions.

Conclusion: Primary consideration 2: Family Violence Committed by the Non-Citizen.

1. The Tribunal, after weighing its findings, gives this consideration strong but not dispositive weight towards affirming the reviewable decision.

PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA**

1. Primary Consideration 3 directs the Tribunal to consider any impact of its decision in relation to the Visa on LJMH'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. The Tribunal must also consider the strength, nature and duration of any other ties that LJMH has to the Australian community, having regard to:[83]

(f) how long the Applicant has resided in Australia, including whether he arrived as a young child, noting that: > > > (i) less weight should be given where the Applicant began offending soon after arriving in Australia; and > > > > (ii) more weight should be given to time the Applicant has spent contributing positively to the Australian community > > (g) 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.

3. According to the Tribunal's understanding, Mr Nikjoo argues:[84]

(a) LJMH is the father of four children, all of whom are Australian permanent residents. While he is not currently in contact with his children due to existing protection orders, LJMH is committed to demonstrating that he is a changed man. He intends to pursue all appropriate legal avenues in the future to re-establish a meaningful and positive relationship with his children. > > (b) LJMH has been living in Australia for over twelve years. During this time, he has made meaningful contributions to the Australian community through employment, including work on farms and within his local community. The extent of support LJMH is expected to receive from his local and broader Australian community upon release further demonstrates the strength of his community ties. > > (c) This level of community support serves as compelling evidence that the risk posed by LJMH is mitigated by strong protective factors, supporting a finding that any residual risk to the Australian community is acceptable in the circumstances. This primary consideration weighs strongly in LJMH's favour.

4. The Tribunal summarises Mr Djasmeini's contentions on this consideration as follows:[85]

(a) Paragraph 8.3(1) requires the Tribunal to consider any impact of the decision on LJMH'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. LJMH's immediate family members in Australia are limited to his children, and the impact of the decision on them is addressed separately. > > (b) Paragraph 8.3(2) establishes factors for determining the strength, nature, and duration of ties that LJMH has to the Australian community. These factors include the length of time LJMH has resided in Australia, including whether LJMH arrived as a young child, with the direction noting that less weight should be given where the non-citizen began offending soon after arriving in Australia, while more weight should be given to time LJMH has spent contributing positively to the Australian community. Additionally, consideration must be given to the strength, duration, and nature of any family or social links with Australian citizens, Australian permanent residents, and people who have an indefinite right to remain in Australia. > > (c) LJMH submits that during his twelve years in Australia, he has contributed positively to the Australian community. In particular, he spent significant time contributing to the local community of Gatton, where he worked on farms and contributed to the Australian agricultural industry. Furthermore, LJMH states that he was instrumental in establishing the first permanent mosque in Gatton in 2020. > > (d) LJMH has provided statements of support prepared by several individuals, including Amridpal Walila, a friend whom LJMH met while incarcerated, Anthony Gray, another friend met during incarceration, and Rashida Begum, a family friend who resides in Gatton. Each statement attests to LJMH being a good friend and a good person. > > (e) While LJMH did not commence offending soon after arriving in Australia, the evidence relating to his contribution to the community is limited. It also appears that although LJMH may have engaged in some employment, he relied on welfare benefits during his time in Australia. > > (f) Overall, the Respondent accepts that this consideration weighs slightly in favour of revocation. However, the Respondent contends that this consideration should not attract significant weight and does not outweigh the heavy weight that should be given to the primary considerations of the protection of the Australian community, family violence committed, and expectations of the Australian community.

5. Summarising LJMH's oral evidence on this factor:

(a) He has a 'toxic' relationship with his former wife and that there are orders against him having any contact with her.[86] He believes that if he contacted his former wife, she would complain to authorities to ensure that he is sent back to prison which gives him an additional incentive not to contact her.[87]

(b) He acknowledged that the DVO runs to 4 April 2028 and applies to both his former wife and his children (who he has not seen in four years).[88]

(c) He has worked at the jobs listed in his Personal Circumstances Form.[89]

1. The Tribunal has read and considered the support letters from Amridpal Walida, Mr Gray and Ms Begum.[90]

1. The Tribunal now considers these contentions and the evidence, including the letters of support referenced above, in terms of each subparagraph of Paragraph 8.3. In doing so it benefited from an agreed schedule identifying LJMH's immediate family (including any minor children), extended family and social and work contacts. These people are in Australia and are Australian citizens, permanent residents, or persons otherwise entitled to remain in Australia indefinitely.[91]
2. In evaluating references from family members and friends, the Tribunal is conscious that they can often be framed in the best possible light for an applicant regarding the latter's offending, while other members of Australian society might consider the offending unacceptable. Care must be taken about the weight placed on references from family members and friends.
3. LJMH arrived in Australia in 2013 when he was thirty five and has not subsequently left. The parties agree that his four children are part of his immediate family, but the Respondent submits that his former wife is not part of the immediate family due to separation or divorce and the current DVO.
4. There are no extended family listed in the schedule. The schedule also identifies four friends including Amridpal Walila, Ms Begum and Mr Gray.
5. LJMH's Offending Record commences in 2015, approximately two years after his arrival.[92]
6. LJMH, based on his Personal Circumstances form[93], was employed between 2018 to 2019 and 2021 to 2023 as a farmhand harvesting fruit, vegetables and salad plants near Gatton.
7. LJMH has made some positive contributions to the community in his role of helping found Gatton's first mosque.[94]
8. The Tribunal finds that:

(a) LJMH's former wife is, on balance, not part of his immediate family. Apart from the reasons noted above, the Tribunal notes that in his Personal Circumstances Form LJMH leaves the section concerned with his spouse's details blank.[95] > > (b) His immediate family consists of his four children who he has not seen for four years and cannot see, because of the DVO, until April 2028, approximately three years from the date of the hearing of this matter. > > (c) LJMH did not begin offending soon after arriving and has contributed positively to the Australian community. > > (d) Based on the documentary evidence[96], he has only been employed for approximately three years of the twelve years he has been in Australia, which qualifies the level of his positive contributions to the Australian community. > > (e) He has a small but loyal group of friends in Australia.

9. Based on its consideration and findings against this Primary Consideration, the Tribunal finds that affirming the reviewable decision would adversely impact those identified people[97] with whom LJMH is close. They are likely to be saddened and suffer emotional disquiet if he is removed. Given the evidence before the Tribunal, this Primary Consideration weighs only moderately in favour of setting the reviewable decision aside.

Conclusion: Primary consideration 3: The Strength, Nature and Duration of Ties to Australia.

1. The Tribunal gives this Primary Consideration only moderate weight towards setting the reviewable decision aside.

PRIMARY CONSIDERATION 4: 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 setting the reviewable decision aside.[98]
2. When deciding whether to cancel a visa, the Tribunal must carefully consider how this will affect any minor children who are involved. If there are multiple children, each child's situation must be looked at separately since their circumstances may be different.[99]
3. The evaluation mandates consideration of eight specified factors:

(a) the nature and duration of the relationship between the child and the non-citizen (with reduced weight accorded to non-parental relationships, absence of existing relationships, or limited meaningful contact including court-restricted access); > > (b) the extent to which the non-citizen is likely to fulfill a positive parental role in future, considering the time remaining until the child reaches eighteen years and any existing court orders regarding parental access and care arrangements; > > (c) the impact of the non-citizen's prior and likely future conduct on the child, particularly where such conduct may have negative consequences; > > (d) the probable effects of separation from the non-citizen, taking into account alternative means of maintaining contact; > > (e) the presence of other persons already fulfilling parental roles; any known views expressed by the child, weighted according to their age and maturity; > > (f) evidence of family violence perpetration, abuse, or neglect by the non-citizen toward the child; and > > (g) evidence of physical or emotional trauma suffered by the child as a result of the non-citizen's conduct. [100]

4. This structured approach ensures that each relevant child's interests receive appropriate consideration while recognising that such interests may be compromised where the non-citizen's conduct poses risks to the child's welfare or safety.
5. This Primary Consideration is enlivened as LJMH has two daughters and two sons who are minors.
6. Summarising LJMH's evidence here:

(a) He acknowledged that the DVO runs to 4 April 2028 and applies to both his former wife and his children (who he has not seen in four years and cannot contact until after April 2028). > > (b) He denied that his children may have directly seen the 2023 incident of family violence committed by LJMH against his former wife. > > (c) He heavily qualified his version of the conviction where he assaulted one of his sons by throwing a mango box at him and injuring him. > > (d) In his written evidence, LJMH indicates that the children live with their mother, their addresses are unknown, and he will not live with them upon his return to the community.[101]

7. There are no letters of support or other evidence from any of the children.
8. The Tribunal understands Mr Nikjoo's position here to be:[102]

(a) LJMH has four minor children in Australia. The best interests of each child are to be assessed individually, as their circumstances and needs may differ. LJMH submits that he holds a sincere hope to re-enter his children's lives and to establish meaningful and enduring relationships with each of them. > > (b) LJMH describes the current period of separation from his children as the most difficult and painful chapter of his life. Importantly, the existence of current separation, due to legal restrictions, should not be construed as an absence of a parental relationship, but rather as a temporary barrier he is committed to overcoming through lawful means and sustained personal change. In particular, LJMH is determined to resume his role as a responsible parent, including providing financial support for his children's wellbeing and future. > > (c) This primary consideration weighs significantly in LJMH's favour, with the ultimate weight to be determined by the Tribunal.

9. Summarising Mr Djasmeini's arguments as the Tribunal understands them:[103]

(a) LJMH has identified four minor children who would be affected by the decision: Child A, born April 2012; Child B, possibly born in December 2014; Child C, born January 2015, with similar uncertainty regarding their actual age; and Child D, born January 2017.[104] > > (b) LJMH submits that he had a close relationship with his children, particularly his youngest daughter, prior to his divorce and separation, and contends that his children would be devastated if he were forced to leave the country. In his personal circumstances form, LJMH indicates that the children live with their mother, their addresses are unknown, and they will not live with him upon his return to the community. He submits that his former wife restricted access to his children and that they were used against him. > > (c) LJMH's children are the subject of a DVO that restricts his interactions with them. The protection order applies for a period of five years from 5 April 2023, expiring on 5 April 2028. The terms of the protection order require that LJMH must be of good behaviour towards the children and not commit domestic violence against them. He is prohibited from locating and contacting them or attempting to locate or contact them or asking someone else to do so on his behalf. Additionally, he is prohibited from following or approaching within 100 metres of them or their place of residence. > > (d) The Respondent submits that LJMH does not have a relationship with his children, noting that his former wife currently fulfills the parental role and it does not appear that he provides them with any financial, practical, or emotional support in their lives, as contemplated by Paragraph 8.4(4)(c). > > (e) Furthermore, given that LJMH's offending exposed his children to family violence and involved the direct perpetration of family violence against his son, the Respondent contends that LJMH's offending would likely have an enduring negative impact on his children, as outlined in Paragraph 8.4(4)(g). > > (f) The Respondent contends that this primary consideration weighs slightly in favour of revocation, but only to a very limited extent.

(a) LJMH acknowledged that the DVO runs till 4 April 2028 and applies to both his former wife and his four children.[105] > > (b) LJMH's evidence is that he had a warm and loving relationship with his children. There is no corroborating evidence for this. > > (c) As and when the current DVO extinguishes in April 2028, LJMH has a possible range of between five and seven years with the children before they reach adulthood. > > (d) By April 2028 he will have been absent and out of communication with them for a significant portion of their lives. > > (e) The extent to which he is likely to play a positive parental role in the future is qualified and constrained by the DVO, his self-described toxic relationship with his former wife and the significant period of their lives that he will have missed. LJMH appeared to acknowledge these issues in his foreshadowing that he may need to take legal action to simply attain access to his children.[106] > > (f) The children likely observed part of LJMH's 2023 offending conduct which in turn is likely to have had at the least an adverse psychological impact on them, even if the Tribunal accepts LJMH's version of the physical injury to his son. > > (g) LJMH's former wife apparently fulfils the parental role but there is a gap in the evidence on this aspect. > > (h) None of the children have provided evidence that sets out their views. > > (i) LJMH's 2023 offending evidences that there is a risk that the children are at risk or being exposed to or subject to family violence committed by LJMH. The October 2024 sentencing decision evidences that one child suffered physical trauma caused by LJMH.[107]

Conclusion: Primary consideration 4: Best interests of minor children in Australia affected by the decision

1. After evaluating the evidence and contentions, the Tribunal finds that this consideration supports setting the reviewable decision aside but carries a slight weight due to the issues involved in LJMH being able to contact and communicate with his children once the DVO expires.

PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY**

1. Paragraph 8.5(1) is a deeming provision. It relies on Paragraph 8.5(4) and sets a community standard for the outcomes of serious behaviour or an unacceptable risk of such behaviour.
2. Paragraph 8.5(2) extends the threshold to certain specified types of conduct.
3. Paragraph 8.5(3) states that the Australian community's expectations apply even if the non-citizen does not pose a clear risk of physical harm to the community.
4. Paragraph 8.5(4) aligns with the reasoning of the Full Court of the Australian Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454 ("FYBR"). FYBR explains that the 'deemed community expectation' usually leads to visa cancellation. However, it also states that the decision-maker must decide if acting on this expectation is appropriate in each case.[108] [109]
5. In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 417 ALR 36, the High Court clarified that when assessing this Primary Consideration, the Tribunal is not required to attribute knowledge of an applicant's personal circumstances to the hypothetical Australian community but must instead proceed on the basis of the Australian Government's views as articulated in the Direction without independently assessing community expectations in the particular case. The Court emphasised that decision-makers should not attempt to infer what community expectations would be with knowledge of the delegate's understanding of an applicant's personal circumstances but rather should apply the relevant norm described as community expectations as set out in the Government's stated views, which is then to be weighed against other relevant matters as required by the Direction's balancing framework.
6. Observing Paragraph 8.5's norm, the Tribunal has also considered the guidance informed by the principles set out in Paragraphs 5.2(1) to (8) of the Direction.

1. LJMH's Visa was a temporary visa with limited stay conditions. Subparagraph 5.2(5)'s low tolerance applies as a result. [110]
2. The Tribunal has summarised Mr Nikjoo's contentions as follows:[111]

(a) While this primary consideration is often referred to as a "deeming provision", the Direction does not ascribe to the Australian community a relevant expectation with regard to the outcome of this case. The determination of the appropriate weight to be given remains a matter for this Tribunal. > > (b) Given that the Tribunal retains discretion in determining the appropriate weight to be attributed to this primary consideration, Deputy President Block's views in Waits v Minister for Immigration and Multicultural and Indigenous Affairs[112] are particularly helpful. Deputy President Block emphasised that "the expectation of the Australian community should be taken to be the expectation of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s501. In Leha v Minister for Immigration[113], Deputy President McMahon further emphasised that "there would be a general expectation in the community that the Act would be administered fairly and humanely" at [34]" > > (c) Senior Member Cameron's observations of in Dang[114] are relevant: "The Australian nation has always been prepared to extend the hand of compassion, assistance and humanity. The Australian community has always recognised the concept of rehabilitation and of second go. It has an exception that when a person is dealt with by the criminal justice system that they will reform and not reoffend." > > (d) This is by no means intended to diminish the seriousness of the offences LJMH committed, which led to significant charges and convictions he received. LJMH expresses deep remorse and offers a sincere apology for his actions. He respectfully submits that the commission of these offences should not define his overall character, nor should he be regarded as a person with a criminal disposition. Rather, his offending should be viewed through the lens of his lived experience as a traumatised individual with no chance of survival in his country of origin. His actions occurred during a period of extreme vulnerability and distress, not from an ingrained tendency toward criminal behaviour. > > (e) All of these factors, compounded by LJMH's gambling addiction and his loss of self-respect, severely impaired his decision-making ability. This deterioration manifested as anger directed both inward and toward those around him and was further exacerbated by a need to support his gambling addiction. The sense of worthlessness and hopelessness that once consumed him has now dissipated, replaced by a growing sense of responsibility and hope for the future. > > (f) That being said, LJMH acknowledges that this primary consideration weighs against him. However, he respectfully submits that it should not be afforded such weight, either individually or collectively, as to outweigh the other considerations that support the revocation of his visa cancellation.

3. Summarising Mr Djasmeini's arguments as the Tribunal understands them:[115]

(a) Paragraphs 8.5(1) and (2) outline the Australian community's expectations, stipulating that the Australian community expects non-citizens to obey Australian laws while in Australia. > > (b) It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to LJMH's circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the 'norm' stipulated above, as established in FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] per Charlesworth J and at [92]-[93], [100]-[104] per Stewart J, and also Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2004) ALJR 196; [2024] HCA 2 at [51]-[52] per Gageler CJ, Gordon, Edelman, Gleeson and Jagot JJ. > > (c) The Respondent contends that LJMH's offending is very serious as it involved acts of family violence and serious crimes against a woman, as outlined in Paragraphs 8(2)(a) and (c). The Australian community's expectations apply regardless of whether LJMH poses a measurable risk of causing psychological harm to the Australian community, as specified in Paragraph 8.5(3). > > (d) Accordingly, the Respondent contends that the Tribunal should give this consideration significant weight against revocation.

1. Arriving in Australia in 2013, LJMH has resided here for approximately twelve years. The length of this period of time engages Paragraph 5.2(6)'s higher tolerance.
2. The Tribunal has also found LJMH's Index Offences to be very serious. This finding militates against the higher tolerance acknowledged above. Paragraph 8.5(2) states that the Australian community expects the Australian government should cancel the visas of non-citizens involved in such conduct.[116]
3. LJMH's Index Offences and his Offending Record involve serious crimes against women, and children, as well as acts of family violence.
4. The Tribunal is satisfied that LJMH has breached the Australian community's expectations by his criminal offending which involved serious breaches of Australian laws. The Australian community 'as a norm' expects the Australian Government not to allow him to remain in Australia. This expectation is modified by the tolerances assessed above.
5. LJMH has experienced a history of trauma before arriving in Australia. There is no evidence that he has undertaken counselling aimed at addressing this history. Based on Mr Nikjoo's contentions, the Tribunal considers that LJMH's history modifies the normative expectation.
6. The Tribunal finds that this Primary Consideration, operating as a deeming provision, supports affirming the reviewable decision.

Conclusion: Primary consideration 5: Expectations of the Australian community

1. This consideration weighs moderately in favour of affirming the reviewable decision.

1. The Tribunal now considers each of the three subparagraphs (a), (b) and (c) set out in Other Considerations listed in Paragraph 9 of the Direction.

OTHER CONSIDERATION (A): LEGAL CONSEQUENCES OF THE DECISION

1. Sections 189 and 198 of the Act provide, together, that unlawful non-citizens in the migration zone must be detained and removed from Australia as soon as reasonably practicable.
2. A non-citizen whose visa has been cancelled or refused under s 501 or s 501CA of the Act faces the following consequences:

(a) Their status in Australia is unlawful.

(b) They are subject to being detained or removed.

(c) Any other visas they hold or any visa applications they have made are cancelled or refused.

(d) They are prohibited from applying for other visas while in the migration zone other than a Protection visa or a Bridging R visa.[117]

(e) Periods of exclusion from Australia and special return criteria may apply.

(a) Paragraph 9.1 requires the Tribunal to consider the legal consequences of its decision, taking into account any non-refoulement obligations and whether LJMH is covered by a protection finding. > > (b) LJMH submits that he is at risk of indefinite detention as a stateless Rohingyan man, engaging Australia's non-refoulement obligations. Furthermore, LJMH submits that removal to Nauru is an unsuitable, unreasonable, and potentially unlawful option due to the impact it would have on his ability to have a meaningful relationship with his children, his complex health needs, and lack of opportunities in Nauru. > > (c) The Respondent accepts that a protection finding within the meaning of section 197C has been made with respect to LJMH in relation to Myanmar, such that he cannot be removed to Myanmar under s 198 of the Act by operation of section 197C(3). > > (d) The Respondent understands that LJMH is currently being held on remand. Irrespective of the Tribunal's decision, LJMH will remain in custody for the purpose of serving his sentence. As a result of the High Court's decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, where the statutory duty to remove a non-citizen has arisen pursuant to s 198 of the Act, detention of a non-citizen is not supported by ss 189 and 196 of the Act where there is no real prospect that it will be practicable to remove the non-citizen in the reasonably foreseeable future. Since the protection finding for LJMH means that his removal to Myanmar is not required or authorised, he could only be removed to a third country. > > (e) If the Tribunal were to affirm the delegate's decision, LJMH would not be able to apply for another visa, other than a Bridging (Removal Pending) (Class WR) (subclass 070) visa due to the operation of s 501E of the Act and regulation 2.12AA of the Migration Regulations 1994. Additionally, he would be barred from making a further application for a protection visa under s 48A of the Act, unless Ministerial discretion is exercised to lift the bar under s 48B of the Act. > > (f) The direct legal consequence of the Tribunal deciding to affirm the reviewable decision is that LJMH would not be subject to immigration detention and he cannot be removed to Myanmar. LJMH would remain an unlawful non-citizen until he is either granted a Bridging (Removal Pending) visa or removed to a third country, which is a decision that the Respondent will make after his criminal detention is over. LJMH would not be subject to indefinite detention. The Respondent contends that the decision the Respondent will make with respect to a grant of a Bridging (Removal Pending) visa or removal to a third country is too far removed from what can be speculated by the Tribunal. > > (g) The Respondent contends that the potential prospect of LJMH's removal from Australia to a third country is not a legal consequence that the Tribunal should entertain. The Tribunal should confine its consideration to the direct legal consequences of a decision to affirm and not speculate about what decisions the Respondent or anyone else may make in the future, however real the prospects of those decisions are, as established in Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [31]-[33] per Flick J. Removal to a third country would require, inter alia, a decision of the Respondent and the consent of that third country, which are speculative contingencies. The Tribunal should not speculate about the suitability of Nauru as a viable and safe option for LJMH. > > (h) In these circumstances, the Respondent contends that this consideration weighs neither in favour nor against revocation, as LJMH is at no risk of indefinite detention.

2. Mr Nikjoo's contentions, as understood by the Tribunal, are:[119]

(a) All "legal and practical" consequences of the Tribunal decision are mandatory considerations for the Tribunal's determination. > > (b) It is noted, as agreed, that LJMH has been recognised as a refugee to whom Australia owes non-refoulement obligations. Accordingly, Australia cannot lawfully return him to his country of origin. However, in the absence of a visa, and instead of remaining in indefinite immigration detention, LJMH may be subject to removal to Nauru, a country with which the Australian Government has recently entered into an agreement to accept a cohort of individuals in similar circumstances. > > (c) LJMH acknowledges that, following the High Court's decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, he is not subject to ongoing immigration detention upon release from custody. This decision established that indefinite detention is unlawful where there is no real prospect of removal to the country of origin in the foreseeable future. > > (d) However, it is important to emphasise that LJMH does not hold any expectation that the Respondent will grant him another visa in the future. The Tribunal should not entertain any suggestion to the contrary, as LJMH's position is that the legal consequence of an adverse decision in this matter would be his removal to a third country, rather than the grant of any bridging or substantive visa. > > (e) He contends that the legal and practical consequences of the Tribunal's decision would be his removal to a third country, currently Nauru, in accordance with recent arrangements between the Australian Government and Nauru to resettle certain individuals from the NZYQ cohort. > > (f) LJMH argues that it is inconsistent for the Respondent to simultaneously propose the possibility of the prospect of removal to a third country, while also asserting that the Tribunal should not speculate on the potential for such removal as a legal consequence of its decision. > > (g) In any event, LJMH submits that while his removal to a third country, such as Nauru or any other designated nation, may not breach Australia's non-refoulement obligations, the legal and practical consequences of such removal are nonetheless mandatory considerations for the Tribunal in determining the appropriate outcome of this review. > > (h) For completeness, LJMH is also barred from applying for another protection visa (RSFIC, 56, clause 9.1.1(3). It is respectfully submitted that the Tribunal should not be satisfied that there is any possibility of LJMH being granted any kind of visa, including protection visa, in a "foreseeable" future.

(a) LJMH is owed non-refoulement obligations.[120] > > (b) The combination of his protection status and the High Court's NZYQ decision means that he cannot be returned to Myanmar or indefinitely detained. > > (c) If the Tribunal affirms the reviewable decision, LJMH will be an unlawful non-citizen once released from jail and would be liable to be removed from Australia. Section 198AD of the Act applies so he would be removed to a regional processing country. > > (d) At the time of this decision, Nauru is the only such country. > > (e) LJMH has diabetes, has a heart condition and fears for his health if removed to Nauru. > > (f) While the Respondent contends that there was no corroborative evidence as to LJMH's medical condition, the Tribunal notes the factual history of his heart problems is documented in the documentary evidence.[121]

2. After evaluating the above, the Tribunal finds that this Other Consideration carries moderate weight in favour of setting the reviewable decision aside.

OTHER CONSIDERATION (B): EXTENT OF IMPEDIMENTS IF REMOVED

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:

(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.

1. Summarising Mr Djasmeini's contentions as the Tribunal apprehends them:[122]

(a) Paragraph 9.2 provides that decision-makers must consider the extent of any impediments that LJMH 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. > > (b) This assessment must have regard to LJMH's age and health, whether there are substantial language or cultural barriers, and any social, medical and/or economic support available to them in that country. > > (c) As noted above, LJMH is the subject of a protection finding and there is nothing to suggest that the circumstances in s 197C(3)(c) of the Act apply to LJMH. > > (d) Consequently, the impediments that LJMH may face if he were returned to Myanmar will not eventuate as a result of the Tribunal's decision. > > (e) Accordingly, the Respondent contends that this consideration should be given neutral weight.

2. Summarising Mr Nikjoo's contentions as the Tribunal understands them:[123]

(a) The Tribunal must assess the practical consequences of LJMH's removal from Australia. > > (b) Accordingly, and irrespective of which third country may be designated, the Tribunal must assess the extent of impediments LJMH would face upon removal. This includes, but is not limited to, whether the receiving country is a signatory to and has ratified relevant international human rights instruments such as the International Covenant on Civil and Political Rights and the Convention Against Torture. The potential inadequacies in protections or support in such countries are directly relevant to this consideration. > > (c) Therefore, LJMH submits that the Tribunal should consider the real and tangible consequences of its decision, including the likelihood of removal to a third country and the associated impediments, when assessing LJMH's case. > > (d) It is respectfully submitted that the following potential impediments are direct and relevant considerations for the purpose of this assessment: LJMH's age and health; whether there are substantial language or cultural barriers; and any social, medical and/or economic support available to them in that country. > > (e) LJMH has a history of serious health issues, including surviving a heart attack and managing diabetes. Access to comprehensive medical care is crucial for his well-being. Reports indicate that Nauru's healthcare infrastructure is limited, with challenges in providing adequate treatment for complex medical conditions. Relocating LJMH to such an environment could jeopardise his health and impede his rehabilitation progress. > > (f) Nauru's healthcare infrastructure is primarily designed to address basic medical needs. The Republic of Nauru Hospital, the island's main medical facility, often struggles with limited resources. Reports indicate that even essential medications can be scarce, and patients frequently endure long waits in challenging conditions to receive care. > > (g) For individuals with chronic health issues, such as heart disease or diabetes, Nauru's healthcare system may not provide the necessary level of care. The island lacks specialised medical professionals and equipment required for comprehensive management of such conditions. > > (h) Mental health services in Nauru are notably insufficient. Médecins Sans Frontières has reported significant mental health needs among both the Nauruan population and asylum seekers, with available services failing to meet these demands. The lack of adequate mental health support can exacerbate existing conditions and hinder rehabilitation efforts. > > (i) The healthcare challenges in Nauru have been particularly detrimental to refugees and asylum seekers. Advocacy groups have documented instances where individuals with serious health conditions did not receive timely or adequate medical attention, leading to deteriorating health outcomes. The repeal of the Medevac legislation, which previously facilitated urgent medical transfers to Australia, has further limited access to necessary healthcare for this vulnerable population. > > (j) The above considerations are assessed within the statutory framework of sections 189, 197C(3), 197(3)(c), and 198 of the Act as they currently stand, as outlined in Paragraphs 9.1.1(2) and (3). Collectively, this results in LJMH being removed to a third country. > > (k) For that reason alone, it is respectfully submitted that this has the potential to alter the character and meaning of the word "may" in s 501CA(4), as stated by the His Honour Justice Colvin in Viane v Minister for Immigration and Border Protection_[124]_:

"Finally, if the Minister is satisfied that there is a reason why the cancellation decision should be revoked then, given the way in which s 501CA(4)(b) is expressed, the Minister must revoke. As the failure to meet the character test will be the only reason why a person's visa will be revoked under s 501(3A), it would be strange if the Minister was satisfied for the purposes of s 501CA(4)(b)(i) that the person passed the character test, yet there remained a discretion whether to revoke."

(l) Therefore, the opening words to s 501CA(4) are in all likelihood an example of those cases where 'may' means 'must'. If there remains a discretion once the Respondent is satisfied as to one of the matters in s 501CA(4)(b), it would be a very narrow one that, in most circumstances, could not be reasonably exercised by refusing to revoke the original decision to cancel the visa.

1. The Tribunal must assess and consider the extent of any impediments that LJMH will face in establishing and maintaining basic living standards if removed from Australia.
2. The phrase "(in the context of what is generally available to other citizens of that country)" in Paragraph 9.2(1) is of significance because it establishes the measure by which impediments may be assessed for the purposes of deciding whether another reason exists to set aside the reviewable decision. As both parties have contended that at the time of this decision Nauru is the most likely destination that LJMH may be sent to, the Tribunal will compare Australia and Nauru for this consideration's purposes.

Subparagraph 9.2(1)(a) - the non-citizen's age and health

1. LJMH is forty-seven.
2. He has a heart condition, suffered a cardiac incident in June 2024[125] and has suffered from depression.[126]
3. The Tribunal considers, based partly on its assessment of Primary Considerations 3 and 4, that LJMH likely faces a significant loss of emotional support due to separation from his immediate family and friends if he is removed to Nauru or another country

Subparagraph 9.2(1)(b) - any substantial language or cultural barriers

1. The Tribunal considers that LJMH, based on his oral evidence and his interaction with the interpreter, would face significant linguistic difficulties if he is sent to any country where his birth language is not spoken.
2. The Tribunal considers that LJMH will likely face cultural issues if he is removed from Australia.

Subparagraph 9.2(1)(c) - any social, medical and/or economic support available to them in that country

1. The evidence[127] and contentions before the Tribunal indicates that LJMH will likely have relatively less social, medical and economic support in Nauru than in Australia. Consequently, the Tribunal considers that LJMH may be confronted by impediments in maintaining basic living standards if removed from Australia.

1. The Tribunal has considered above the extent of any impediments that LJMH, if removed from Australia to Nauru, will face in establishing himself and maintaining basic living standards, considering the specific factors set out in Paragraph 9.2(1).
2. Having regard to the analysis referrable to each of the three subparagraph components of this Other Consideration (b), the Tribunal finds that it is likely, if LJMH is removed from Australia, that he would face emotional and practical hardships, as well as risks to both his physical and mental health. He is likely to face difficulties in establishing social, medical and economic support - difficulties that may be exacerbated by a lack of support networks and observed language barriers. He is likely to face cultural barriers.
3. The Tribunal finds that this Other Consideration carries strong weight in favour of setting aside the reviewable decision.

OTHER CONSIDERATION (C): IMPACT ON AUSTRALIAN BUSINESS INTERESTS

1. There is no evidence and testimony before the Tribunal enlivening this consideration. The Respondent contends that it carries neutral weight.

1. The statutory framework poses two issues for the Tribunal to address:

(a) character test: whether there is a reasonable suspicion that LJMH does not pass the character test in terms of s 501(6)(b), and whether LJMH satisfies the Tribunal that he passes the character test,[128] and, if not,

(b) exercise of discretion: whether there is another reason whether the Tribunal should exercise its discretion conferred by s 501(2) to set the reviewable decision aside.

1. The Tribunal was satisfied that LJMH did not pass the character test.
2. The Tribunal has applied the Direction to this matter's specific circumstances in determining whether there is 'another reason' to set aside the reviewable decision.
3. The Tribunal assessed the evidence against Primary Consideration 1 and found that LJMH's offending is very serious. It also found that the consequences of any such future offending of the type that LJMH has previously engaged in could result in very serious harm to members of the Australian community. It assessed the likelihood of his future re-offending as material. The Tribunal further found that Primary Consideration 1 in its totality weighs strongly in favour of affirming the reviewable decision.
4. Primary Consideration 2 carries strong weight towards affirming the reviewable decision.
5. The Tribunal found that Primary Consideration 3 carries only moderate weight towards setting the reviewable decision aside.
6. Primary Consideration 4 carries a slight weight in favour of setting the reviewable decision aside.
7. The Tribunal found that Primary Consideration 5 weighs moderately in favour of affirming the reviewable decision.
8. The Tribunal found that the legal consequences of the decision regarding LJMH's Visa carry moderate weight in favour of setting the reviewable decision aside.
9. The Tribunal found that the extent of impediments LJMH would face if he were removed to Nauru or Nauru carry strong weight in favour of setting the reviewable decision aside.
10. Other Consideration (c) carries neutral weight.

1. The Tribunal has set out above its findings on the weight attributable to the Direction's Primary Considerations and the Other Considerations.
2. The Tribunal has assessed and considered all the findings and the weights it has identified under the relevant considerations. It followed the process outlined at length in Demir v Minister for Immigration, Citizenship and Multicultural Affairs at [21].[129]
3. The Direction states that Primary Consideration 1 is "generally" to be given greater weight than other primary considerations. It also states that primary considerations should generally receive greater weight than other considerations. However, the Tribunal considers that the use of the word "generally" preserves the decision-makers' discretion rather than creating an absolute rule that would always require giving the protection consideration more weight than all other factors combined. Such an approach would effectively eliminate the statutory discretion available to decision-makers and override the required holistic weighing and balancing exercise. Legal authorities, including decisions in Blake[130], Aksu[131], and Lu[132] cases, support the continuing existence of a discretion and reinforce that decision-makers must consider the specific circumstances of each case when deciding whether to exercise their discretion.
4. The Tribunal has acknowledged LJMH's language difficulties. Mr Nikjoo represented LJMH and Mr Haroon interpreted. The Tribunal has considered his language difficulties and how these difficulties might impact his ability to understand questions, provide nuanced responses, or fully comprehend the legal proceedings he has been involved in and this present matter.
5. Overall, the Tribunal considers that in this matter Primary Consideration 1's greater weight is appropriately engaged given the nature and history of LJMH's offending. Having conducted a comprehensive and integrated view of its findings and the weights it has attributed to them, this Tribunal finds that it is satisfied that there is not another reason to set the reviewable decision aside.

1. Applying s 105 of the ART Act, the Tribunal affirms the 31 March 2025 decision of the Respondent's delegate to cancel LJMH's Safe Haven Enterprise (Class XE) (subclass 790) visa.

Amended Statement of Facts, Issues and Contentions (SFIC)

Applicant Statement of Facts, Issues and Contentions

Asylum Seeker Resource Centre Article - 'Offshore health crisis deepens: Advocates call on Labor to reinstate Medevac legislation'

The Melbourne Anglican Article - 'Calls for Royal Commission amid Nauru health failures'

ABC News Article - UNHCR calls for immediate transfer of refugees out of Manus Island, Nauru to 'humane conditions'

Parties' agreed schedule of the applicant's immediate and extended family, social and work relationships and minor children in Australia

[2] Unless the context indicates otherwise, the Tribunal has used bold font to emphasise selected passages.

[3] One example is at Exhibit R1: 75. LJMH's written statement uses the word 'weaponised' with which he was not familiar in his oral evidence.

[4] Pursuant to s 500(6L) of the Migration Act 1958 (Cth).

[5] Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 271 FCR 326 [41]-⁠[48].

[7] Exhibit R1: G22, 156; G10, 59; G13, 72; G14, 85.

[11] Pursuant to s 501CA(4)(a) of the Act.

[12] Pursuant to s 501CA(4)(b)(i) of the Act.

[13] Pursuant to s 501CA(4)(b)(ii) of the Act.

[15] Migration Act 1958 (Cth) s 501(6).

[17] As defined in s 501 of the Act and as required under s 501CA(4)(b)(i) of the Act.

[19] See Minister for Immigration and Border Protection v Makasa [2021] HCA 1.

[20] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at para [38].

[21] Administrative Review Tribunal Act 2024 (Cth), ss 49-50.

[22] The Direction's paragraphs will be capitalised as 'Paragraphs' in these reasons.

[24] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.

[25] Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; (2016) 241 FCR 461, at [57]; 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, 587 [23] (Mortimer J, as her Honour then was).

[26] A SFIC functions similarly to a pleadings document in court proceedings. It helps identify and narrow down the disputed issues, ensuring both parties understand and have the opportunity to respond to each other's arguments.

[32] Direction; [8.1.1(1)(a) and (b)].

[39] Exhibit R3: S2, 15.

[42] WKCG and Minister for Immigration and Citizenship [2009] AATA 512; (2009) 110 ALD 434 particularly at [27]- [29].

[44] XFKR and Minister for Immigration and Border Protection [2017] AATA 2385

[49] Exhibit R3: S3.

[52] Exhibit R3: S4, 72.

[53] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal), at [2]; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48] - [52] and Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].

[54] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (QKVH 2020); Tanielu v Minister for Immigration and Border Protection [2014] FCAFC 673; (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.

[55] 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).

[56] (1997) 191 CLR 559, 574 ('Guo').

[60] Murphy v Minister for Home Affairs [2018] FCA 1924 (Mortimer J) ('Murphy') [37].

[62] GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 ('GJJF'); Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 ('Roberts'); GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 ('GJJF') (n 52) [48]- [52]; Roberts, (n 53) [27].

[63] Dharma and Minister for Home Affairs [2018] AATA 2757, at [26].

[69] Exhibit R3: S3.

[70] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 [37], [39] ('Ismail').

[82] See above under Primary Consideration 1.

[98] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125; (2021) 285 FCR 187, 240 [180], citing Spruill v Minister for Immigration and Citizenship [2012] FCA 1401; 2012) 135 ALD 45, [18]-[19]; RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 201; (2022) 295 FCR 365, 376 [44].

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

[109] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2; (2024) 417 ALR 36, [51]-[52].

[110] Clause 790.511, Migration Regulations 1994.

[112] Waits v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336

[113] Leha v Minister for Immigration [2000] AATA 1054

[114] Dang and Minister for Home Affairs (Migration) [2018] AATA 2095 (4 July 2018) at [90]-[91]

[117] Section 501E of the Act. Further, Criterion 5001 of Schedule 5 to the Migration Regulations 1994 (Cth) prohibits the grant of a visa to person outside Australia whose visa has been cancelled under s 501.

[124] Viane v Minister for Immigration and Border Protection [2018] FCAFC 116

[129] Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870.

[130] Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 492 (2 February 2024).

[131] Aksu v Minister for Immigration & Multicultural Affairs [2001] FCA 514 (4 May 2001).

[132] Lu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 340.