MIGRATION - Class XB Subclass 200 Refugee visa cancellation - failure to pass good character test - non-revocation decision - whether there is another reason to set aside the visa cancellation - convicted of dangerous operation of a motor vehicle causing grievous bodily harm whilst adversely affected by an intoxicating substance - contravention of domestic violence orders- South Sudan - 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

Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408

Coker v Minister for Immigration and Border Protection [2017] FCA 929; (2017) 160 ALD 588

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

GJJF and Minister for Home Affairs (Migration) [2019] AATA 930

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

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133

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

Roach v Minister for Immigration and Border Protection [2016] FCA 750, [141]

Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970

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

Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286

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. Mr Lam seeks review of the Minister's (the Minister or the Respondent) delegate's 28 February 2025 decision to cancel his Class XB Subclass 200 Refugee visa (the Visa).[1]
2. The Tribunal heard the matter in Brisbane on 13 and 15 May 2025. Mr Lam represented himself. Ms Crawley of HWL Ebsworth Lawyers represented the Respondent. The hearing relied on Mr Kemis Oyiki, an Acholi interpreter. The Tribunal commends Mr Oyiki for his invaluable assistance.
3. This was an expedited matter. Section 500(6L) of the Migration Act 1958 (Cth) (the Act), required the Tribunal to make a decision by 23 May 2025. On 23 May 2025, the Tribunal met its statutory obligation[2] by providing a short form decision in which it affirmed the decision under review.[3] The Tribunal now gives its reasons for its decision.
4. Unless the context indicates otherwise, the Tribunal has used bold font to emphasise selected passages.

1. Mr Lam is a thirty-eight-year-old[4] South Sudanese or Sudanese citizen. He has resided in Australia since January 2004.[5]
2. On 6 August 2024 His Honour Judge Chowdhury of the District Court of Queensland convicted Mr Lam of one count of Dangerous Operation of a Vehicle causing death or grievous bodily harm whilst adversely affected by an intoxicating substance. The judge sentenced Mr Lam to four years' imprisonment, to be suspended for four years after Mr Lam had served fourteen months (the Index Offence).[6] Mr Lam has also been convicted or charged with other criminal offences and has also received multiple driving infringements (the Offending Record) which are addressed below.
3. On 30 September 2024 the Respondent cancelled Mr Lam's Visa. Mr Lam made representations. The Respondent's delegate reviewed the decision. On 28 February 2025, they decided to affirm the cancellation (the reviewable decision) and notified Mr Lam of their decision on the same day.[7]
4. On 5 March 2025, Mr Lam applied to the Tribunal for a review of the reviewable decision.[8]

1. Section 13 of the Administrative Review Tribunal Act (the ART Act) and s 500 of the Act give the Tribunal its jurisdiction in this matter.
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;[9] and > > (b) the Respondent is satisfied that: > > > (i) the person passes the character test;[10] or > > > > (ii) there is another reason why the original decision should be revoked.[11]

3. The Tribunal is satisfied that Mr Lam made the representations required by s 501CA(4).[12]

1. In the reviewable decision, the Respondent's delegate cancelled Mr Lam's Visa on the basis that he had failed the character test.[13] This decision followed a consideration of the test against Mr Lam's criminal record, as defined in s 501 of the Act and as required under s 501CA(4)(b)(i) of the Act.
2. The Tribunal is satisfied, based on its own assessment of his criminal record, that Mr Lam does not pass the character test.[14]
3. Section 501CA(4) of the Act gives the Minister a discretionary power to revoke the original cancellation decision. This can happen if the person whose visa has been cancelled makes representations. The Minister or their delegate can revoke the cancellation if they are satisfied that the person passes the character test or has another reason why the original decision should be revoked. This latter question is the Tribunal's task in this matter.[15]
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).[16]
5. Paragraph 5.2 of the Direction sets out principles that provide a framework within which the Tribunal should approach its task.[17]
6. Paragraph 6 of the Direction states 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. This applies when these considerations are relevant to their decision‑making. 7. The Direction requires the Tribunal to take the primary and other considerations into account but states that Primary Consideration 1 is generally to be given greater weight than other primary considerations. 8. Paragraph 8 of the Direction specifies the following primary considerations:

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

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

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

(4) the best interests of minor children in Australia.

(5) the expectations of the Australian community.

1. Paragraph 9 of the Direction sets out the other considerations to be assessed where relevant:

(a) the legal consequences of the decision.

(b) the extent of impediments if removed.

(c) the impact on Australian business interests.

1. 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 specific circumstances affect this weighting.[18] The individual decision‑maker conducts both individual and cumulative weighing process.[19]

1. The Tribunal received written evidence during the hearing. The exhibit register is attached to this Decision and marked 'Annexure A'.
2. The Respondent's Statement of Facts, Issues and Contentions (SFIC)[20] is included within Annexure A. The Tribunal has considered the Respondent's SFIC and Mr Lam's arguments and contentions.
3. Mr Lam relied on letters of support from his partner Ms Darius[21], Mr Kasiano[22], Mr Nono[23], Mr Oweka[24] Mr Lam's Son, Child B[25]and Mr Victor[26].
4. The Tribunal also heard testimony from Mr Lam, Ms Darius and Mr Kasiano.

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 Mr Lam'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 Mr Lam's Conduct to Date

1. Paragraph 8.1.1(1) sets out a series of factors (in subparagraphs (a) to (h)) for the Tribunal to assess. The Tribunal, where relevant, must consider these when considering the nature and seriousness of Mr Lam's criminal offending or other conduct to date.
2. The Index Offence is described in the sentencing judge's reasons.[27]
3. Mr Lam's Offending Record includes incidents of family violence and traffic offences such as driving when over the alcohol limit[28], as well as breaches of orders.[29]
4. Summarising Ms Crawley's contentions on the evidence about this element of Primary Consideration 1, as the Tribunal understands them:[30]

(a) On August 6, 2024, Mr Lam was convicted of the dangerous operation of a vehicle causing death or grievous bodily harm while adversely affected by an intoxicating substance.

(b) For this offence, he received a four-year term of imprisonment and a three-year disqualification from holding or obtaining a driver's license, commencing from the conviction date.

(c) The incident involved the Mr Lam's vehicle colliding with a young woman and her one-year-old child.

(d) The child was trapped beneath the vehicle and sustained minor injuries including burns and bleeding from the ear.

(e) The mother suffered a tibial plateau fracture, swelling of her left knee joint, and a ruptured medial collateral ligament (MCL), requiring six weeks in a leg brace and ongoing physiotherapy. Even with treatment, she has a higher risk of chronic pain, losing function, and may need a total knee replacement in the future.

(f) Approximately two hours after the collision, Mr Lam provided a blood sample at Logan Hospital and was found to have a blood alcohol concentration of 0.336%. In a police interview the following day, he admitted to consuming 'a lot' of whisky the night before the incident and a large glass of wine on the morning of the accident. He claimed not to know how his vehicle accelerated into the victims' backyard.

(g) During sentencing, Judge Chowdhury characterised the facts as 'really quite bad' and emphasised the need for general deterrence, noting that courts 'must impose heavy penalties on drunk drivers who injure other people' and have 'said for years that this type of offense needs to be met with stern punishment'.

(h) Mr Lam also has a significant history of family violence, including:

1. A February 2023 incident where Mr Lam allegedly raped his de facto partner while a Domestic and Family Violence Protection Order was in place, after which he reportedly made statements to police about it being 'his right as a man' to have sexual relations with his partner.
2. Many violations of protection orders, including a March 2023 incident where police found him hiding in a cupboard at the aggrieved person's residence despite being prohibited from approaching within 100 meters of the premises.
3. Several domestic violence incidents dating back to 2007, involving different partners, with documented injuries including facial swelling, a bitten lip, and hair pulling.
4. In October 2009, threats to kill a protected person while intoxicated during a community function.

(i) Mr Lam's conduct should be considered as very serious based on:

1. The impact on victims of his offending, particularly the ongoing physical consequences for the mother injured in the 2022 incident who is at increased risk of chronic pain and loss of function and faces the possibility in the future of a total knee replacement.[31]
   1. The frequency of his offending and a trend of increasing seriousness, with frequent incidents running from 2005 until July 2022, culminating in the Index Offence.
   2. His repeated pattern of similar offending, constituting an extensive cumulative history of criminal and violent behaviour.

(j) The Direction identifies the Australian community's safety as the Australian Government's highest priority and the Respondent contends that the Tribunal should affirm the reviewable decision.

The Tribunal's consideration: The nature and seriousness of Mr Lam's conduct

1. When assessing the nature and seriousness of Mr Lam's criminal offending or other conduct to date, the following elements of paragraph 8.1.1(1) are relevant:
   • Whether Mr Lam's criminal offending and conduct to date belongs within the types of crimes or conduct viewed very seriously by the Australian government and the Australian community;[32]
   • the sentences imposed for his criminal offending;[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 Mr Lam 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. Mr Lam's Offending Record includes violent crimes against women who were or are part of Mr Lam's family, as corroborated by Ms Darius' testimony. Applying Paragraph 8.1.1(1)(a)(i), (ii) and (iii),the Tribunal considers that the totality of Mr Lam's conduct should be viewed as very serious.
3. The Tribunal, after evaluating the evidence and the parties' contentions, assesses that applying Paragraph 8.1.1(1)(b)(iii) Mr Lam's Index Offence should at the least be considered a serious crime.
4. Considering Paragraph 8.1.1(1)(c), the Tribunal notes the sentencing judge's assessment of the Index Offence, reflected in Mr Lam's sentencing. The Tribunal considers that the sentencing adds weight to assessing that the Index Offence should be objectively categorised under the Direction as very serious rather than serious.
5. The Tribunal has documentary evidence before it showing that Mr Lam's victims suffered physical impacts and likely experienced psychological impacts due to the Index Offence. The documentary and oral evidence of the impact of Mr Lam's Offending Record, especially that of Ms Darius, is more mixed, although it is clear that Mr Lam's former partner suffered physical dental trauma to her lips (Ms Darius is Mr Lam's current partner). Paragraph 8.1.1(1)(d) is enlivened.
6. Considering frequency, Mr Lam has convictions in 2006, 2009 and 2013. A subsequent period of offending resulting in three convictions (including the Index Offence) began on 27 July 2022 and concluded on 7 March 2023. This latter period shows a greater frequency than his earlier offending. Paragraph 8.1.1(1)(e) is enlivened.
7. The Tribunal has considered the evidence of Mr Lam's repeated offending's cumulative impact. It finds that the cumulative impact was both significant and also disproportionately affected females. Paragraph 8.1.1(1)(f) is enlivened.
8. The Tribunal does not consider that Paragraphs 8.1.1(1)(g) and (h) are enlivened from the evidence.

The Tribunal's finding: The nature and seriousness of Mr Lam's conduct.

1. The phrase 'without limiting the range of conduct' in Paragraphs 8.1.1(1)(a) and (b) shows that they are non-exhaustive.
2. 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 Mr Lam'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 Ms Crawley' contentions on Paragraph 8.1.2 as the Tribunal understands them:[37]

(a) The Index Offence is serious. The sentencing judge noted it was "really quite bad" and gave a four-year sentence. If this happens again, members of the Australian community could face serious risks. These include physical, psychological, and financial harm. > > (b) The Respondent argues that Mr Lam demonstrates little insight or understanding into his responsibility for his offending. In his submissions to the Respondent seeking revocation of the cancellation decision, he described losing control of the vehicle as "accidental" and has not acknowledged his alcohol consumption as a contributing factor to the offense. > > (c) Furthermore, he has not explained his other convictions, particularly his extensive history of repeated traffic offenses. This lack of acknowledgment indicates minimal insight into his offending pattern and suggests he does not fully comprehend the seriousness of his actions. Based on these factors, the Tribunal cannot discount the possibility of recidivism. > > (d) The Respondent acknowledges that Mr Lam has made some rehabilitation efforts. These include counselling with Gateway Counselling Centre and completion of the Queensland Traffic Offenders Program (QTOP). Queensland Corrective Services' documents show that as at 8 August 2024, while in prison, Mr Lam was "'realistically future orientated outlining plans to obtain employment and engage in courses/programs/employment".[38] However, a subsequent 11 September 2024 Queensland Corrective Services report noted that he was not "currently listed to engage in any programs".[39] > > (e) No evidence has been presented so far to establish what, if any, rehabilitation programs Mr Lam has completed since 11 September 2024. > > (f) Consequently, it is unclear how effective these rehabilitative interventions may be in addressing the underlying causes of his offending behaviour. > > (g) Mr Lam's rehabilitation efforts need to be assessed in light of his long history of alcohol abuse. This issue has repeatedly brought him to the attention of police and courts. Despite these previous interventions, he has continued to consume alcohol to excess and subsequently engage in dangerous behaviour as a result. As he remains incarcerated, his current reform efforts have not yet been tested in a community setting. Given his comprehensive history of alcohol abuse, the Tribunal is urged to exercise extreme caution in assessing whether these efforts will ensure continued abstinence following release. > > (h) The protection of the Australian community weighs significantly in favour of affirming the decision under review. Further, the Respondent contends that this consideration must be regarded as outweighing other considerations in favour of revocation.

2. Mr Lam contends that he does not believe that he will re-offend as he now has to live with his past actions. He told the Tribunal that he wished to apologise for his actions. He wants to support his former partner, Ms Darius. He explained how his older brother had brought him to Australia from a refugee camp in Kenya. At first, his brother supported and accommodated him. Later, his brother asked him to leave the brother's home due to conflict between the brother and the brother's wife. The Tribunal saw this as an attempt to place his offending in context. He acknowledged that he tended to consume alcohol when stressed or when dealing with relationship issues. He testified that his general practitioner at Inala had either provided counselling or had referred him to counselling but that this had ceased when the general practitioner died.
3. In cross-examination Mr Lam acknowledged that he was not aware of the legal blood alcohol limit when he committed the Index Offence and added that he was dealing with a great deal of stress at the time. He agreed, when it was put to him, that many of the issues he was now dealing with stemmed from his driving behaviour.
4. Ms Crawley took Mr Lam through his domestic violence offences and charges. Mr Lam sought to avoid responsibility or qualify the written evidence records put to him, claiming at times that the account was incorrect or that his sister-in-law had "set him up". He sought to deflect responsibility for his 2009 breach of an order where his then partner suffered a bitten lip.
5. Concerningly, after the February 2023 rape charge's electronic record of interview[40] was translated for him during examination-in-chief and he had stated that he accepted what was written, he then later claimed in cross-examination that he had not made the statements attributed to him in the document. He also alleged in oral evidence that the female police officer who attended the 2023 incident sought to coerce him into agreeing with the statement. As this charge did not proceed to trial, the Tribunal does not place weight upon this.
6. In cross-examination in relation to the October 2009 offending involving alcohol intoxication and uttering threats, Mr Lam accepted that he had been drinking but denied making death threats. The Queensland Police charge sheet contradicts his denial.[41]

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

1. The evidence presented to the Tribunal about Mr Lam's Index Offence suggests that he may cause serious physical and psychological harm to the Australian community if he re-offends like he did before or based 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 Mr Lam 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 threshold here is whether there is 'a' risk.[42]
3. The issues surrounding the consideration of risk under s 501(6)(d) of the Act, from which Paragraphs 8.1.2(1) and (2) are drawn, have been extensively addressed by superior courts and the Tribunal.[43]
4. Paragraphs 8.1.2(1) and (2) need a 'future‑focused assessment'[44] of the risk an individual poses should they re-offend. This includes considering the type of harm and how likely it is to happen. In Minister for Immigration and Ethnic Affairs v Guo (Guo),[45] the High Court decided that past actions can predict future behaviour. The majority observed that past events 'are not a certain guide'. Depending on the situation, the chance of an event occurring could be so low as to be 'safely disregarded', or at the other extreme 'may border on certainty'.[46] 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'.[47]
5. The Tribunal must determine the realistic level of risk posed by Mr Lam as at the time of its decision,[48] with the question being "how serious the risk [is], or whether the risk should be "tolerated"'[49], to the extent that it could be considered an unacceptable risk.[50]
6. When assessing whether Mr Lam 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'. [51] In executing this task, the Tribunal understands that the Australian community may accept some risk associated with the holding of visas by non-citizens.
7. Senior Member Taylor observed a qualification to this tolerance in Dharma and Minister for Home Affairs,[52] in that the degree of risk that may be acceptable to the community is "inversely related" to both the likelihood of re-offending and the apprehended significance of the possible harm caused by such further offending.
8. The Tribunal's consideration of the risk or likelihood of Mr Lam 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. Mr Lam contended that stress and alcohol are behind much of his offending.
2. When cross-examined regarding the QTOP program he attended, he stated that it involved watching a video on the dangers of drink driving and passing a written test and that he had learnt about the risk to life that drink driving poses.
3. When asked whether he had undertaken rehabilitation or counselling focused on alcohol abuse, he said that he had taken part in counselling for alcohol abuse arranged through his late general practitioner. However, this stopped when the doctor died. In cross-examination he stated that he had not touched alcohol in the past two years and blamed his upbringing for his offending, especially his domestic violence offending.
4. In cross-examination, when asked whether he had no control over his temper, he answered that "I can control my temper. I won't take a punch without throwing one back."

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

1. Mr Lam has undertaken a minimal level of rehabilitation. In oral evidence, he did not show insight into the root causes of his offending behaviour beyond acknowledging that he offends when under stress and consuming alcohol. His claims of remorse were general rather than specific. Apart from his testimony that he has ceased drinking alcohol since entering prison - a constraint imposed by his incarceration - there is no evidence of substantive behavioural change.

In his Personal Circumstances form, Mr Lam writes that "I plan to do a defensive driving course on release from jail.' The Tribunal sees that his approach to rehabilitation involves more about planning future action than what he has achieved to date. The Tribunal notes that these future plans do not tackle his own admitted causes of offending, which are stress and alcohol.[53]

The Tribunal's Risk Analysis and Consideration

1. The Tribunal has considered the evidence above, especially the factors that appear to have contributed to Mr Lam'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, noting that 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 Mr Lam might re-offend, the Tribunal looked at several factors. It considered his Index Offence, his limited expression of remorse, and his few 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 Mr Lam 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 and significant.
3. The consequences if Mr Lam were to re-offend in the same manner as the Index Offence 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, Mr Lam'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 Mr Lam's actions are very serious. Future offences like his could harm the Australian community. The chance of him re-offending is real and significant. Given the serious nature of the Index Offence and his record, the Tribunal considers any risk of repeating these actions is unacceptable.
2. The Tribunal further finds that, in its totality, this consideration weighs strongly and substantially in favour of affirming the reviewable decision.

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

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

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

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

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

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

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

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

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

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

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

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

Tribunal consideration: Family violence committed by the non-citizen

1. 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.[54]
2. Summarising Ms Crawley's contentions as the Tribunal understands them:

(e) Family violence, as stated in Paragraph 4 of the Direction, is "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family or causes the family member to be fearful." Examples include assault, sexual assault, other sexually abusive behaviour, or unlawfully depriving a family member of liberty. For the purposes of this definition, a family member includes "a person who has, or has had, an intimate personal relationship with the relevant person." > > (f) Mr Lam's history of family violence is extensive[55]. In evaluating the seriousness of his family violence offending, the following factors under Paragraph 8.2(3) are particularly relevant: > > > (i) He appears to have committed acts of family violence against his respective partners over a long period, with documented incidents occurring in 2007, 2009 (twice), 2012, 2019, and 2023. > > > > (ii) In 2009 his former partner reported to police that at one point she was "living in fear" and believed Mr Lam capable of carrying out his threats to kill her.[56] > > > > (iii) There is no evidence indicating that he has undergone any rehabilitation specifically addressing his family violence offending. > > > > (iv) He has demonstrated a pattern of contravening Domestic Violence Orders (DVOs), indicating that he has continued to commit acts of domestic violence despite being formally notified by authorities about the consequences of such behaviour. In the absence of evidence to the contrary, the Respondent submits that the likelihood of Mr Lam continuing to commit these acts is high. > > (g) The Respondent contends that the consideration of family violence weighs extremely heavily against revocation of the cancellation decision and, like the previous considerations, outweighs other factors that might otherwise support revocation.

3. When asked whether he had undertaken rehabilitation or counselling focused on alcohol abuse, Mr Lam stated that that was the counselling arranged through his late general practitioner and that it had ceased on the latter's death.
4. In cross-examination he stated that he had not touched alcohol in the past two years and blamed his upbringing for his offending, especially his domestic violence offending.
5. He also resiled from details set out the Queensland Police electronic record of interview where he had admitted to having sex with Ms Darius and was charged. This raised questions about his credibility. However, as there is no record that he was tried or convicted in relation to this charge, the Tribunal does not place weight on this.
6. In cross-examination, when asked whether he had no control over his temper, he answered that "I can control my temper. I won't take a punch without throwing one back."
7. Summarising the oral evidence of Mr Kasiano and Ms Darius:

(a) Mr Kasiano had indirectly heard, via hearsay evidence, about incidents involving Ms Darius but stated he was not aware that Mr Lam was charged with raping Ms Darius in 2023, that Mr Lam had contravened domestic violence orders and had continued to do so despite being warned of the consequences. > > (b) Ms Darius provided a vivid account of the physical violence Mr Lam had visited upon her. She qualified this by stating that she was not afraid of Mr Lam and that she did not believe she was at risk of further harm. She also stated that she did not think that their children were at risk. She based these qualifications on her view that Mr Lam had usually been violent when under the influence of alcohol and that he has not drunk alcohol since entering prison.

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. Mr Lam has a long history of family violence charges and breaching protection orders. The Tribunal notes that, apart from breaching those orders, none of his family violence matters have been finalised before the courts.
3. The Tribunal notes that Mr Lam's cessation of drinking coincided with his imprisonment.

Conclusion: Primary consideration 2: The Strength, Nature and Duration of Ties to Australia.

1. The Tribunal gives this consideration very substantial 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 Mr Lam'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 Mr Lam has to the Australian community, having regard to:[57]

(c) 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 > > (d) 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. Summarising Mr Lam's oral evidence on this factor:

(a) He has worked at the jobs listed in his Personal Circumstances Form.[58]

(b) He has friends he met at work, but he could not name them.

(c) He has participated in Work for the Dole schemes.

(d) He has volunteered at a church and with the Salvation Army, as well as assisting in organising Sudanese community events.

(e) He had a role as a leader within the Queensland Acholi community organisation.[59] As a 'youth chairman', he brought young members together to mentor them. He also educated them about their Sudanese culture and dance. He also said that he had distributed water to community elders in this group during events in hot weather.

(f) He considers one of the elders in the group - Mr Kasiano- to be a close friend.

(a) Mr Lam chaired a Sudanese community committee for the 2009 Queensland sesquicentenary. He has participated in Sudanese funeral gatherings. He speaks his mind in community meetings and has demonstrated clarity of thought. He has made a special effort to lead and mentor the Sudanese youth involved with the community organisation.

(a) She is currently working as a cleaner in aged care facility. Rather than Mr Lam providing support, especially financial support, while he is in jail, she supports her children and herself as well as financially supporting Mr Lam. > > (b) She gave a history of Mr Lam committing acts of physical family violence upon her since 2019. > > (c) She stated that Mr Lam is loving and caring and that he used to do cooking and cleaning in their home. > > (d) In relation to the 2023 rape charge, Ms Darius disputed what was in the written evidence and claimed that she under stress at the time and was also angry. She denied lying to the police, stating that she was frustrated at the time and did not know what she was doing. She denied other aspects of the 2023 charge in cross-examination. She agreed that in separate incidents Mr Lam had punched her in the face just below her right eye, causing a cut and swelling. She disagreed with the police opinion at the time that she was at risk of further harm from Mr Lam.

3. Summarising Ms Crawley' contentions on this consideration as the Tribunal understands them:[60]

(a) Paragraph 8.3(2)(a)(i) requires the Tribunal to consider the length of the non-citizen's residence in Australia. If they began offending soon after their arrival, less weight should be assigned. > > (b) Paragraph 8.3(2)(a)(ii) further indicates that greater weight should be accorded to times when the non-citizen has positively contributed to the Australian community. > > (c) Mr Lam arrived in Australia on January 16, 2004, and by June 16, 2005, he was charged with careless and unlicensed driving, resulting in a $500 fine. > > (d) Judge Chowdhury has described Mr Lam's traffic history as "concerning" and extensive. Additionally, Mr Lam's record of domestic violence offending diminishes any positive contribution he might have made. This reduces the weight that should be given to his duration of residence in Australia. > > (e) The Respondent acknowledges that Mr Lam's two children who are Australian citizens would be affected by his removal from Australia. Mr Lam claims that he takes his children to school daily, attends their sporting activities, and believes they are suffering due to his incarceration, as he considers himself a good role model for them. He further asserts that if he were removed, his partner would be unable to work or support the children, potentially leaving them in poverty. > > (f) Despite these claims, there is no corroborative evidence establishing that Mr Lam maintains a continuing relationship with Ms Darius, the children's mother. There is no evidence beyond his written statements and Child B's support letter describing his relationship with his children prior to incarceration. Furthermore, there is no evidence before the Tribunal indicating what Ms Darius' current employment status is or how she is financially supporting the children while Mr Lam is in prison. > > (g) Consequently, the Tribunal should assign reduced weight to this consideration when evaluating the strength, nature, and duration of Mr Lam's ties to Australia. > > (h) In assessing the strength, nature, and duration of any other ties the Applicant has to the Australian community, the Respondent notes that Mr Lam arrived in Australia as a minor of seventeen years. He claims to have close relationships with his parents-in-law, his uncle, and two cousins. Additionally, he has four nieces and nephews, two cousins, and one uncle/aunt residing in Australia. He has volunteered at his local church, and a letter of support from Mr. Paul Nono states that he has been an active participant in the Acholi community, contributing to various events, gatherings, and initiatives. > > (i) The Respondent concedes that this consideration weighs somewhat in favour of revocation of the cancellation decision.

4. 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 Mr Lam's immediate family (including any minor children), extended family and social and work contacts. This people are in Australia and are Australian citizens, permanent residents, or persons otherwise entitled to remain in Australia indefinitely.[61]
5. Mr Lam arrived in Australia in 2004 when he was seventeen and has not subsequently left. Relying on the agreed schedule, his immediate family consists of Ms Darius and their two sons, of whom Child B has provided a letter of support. In terms of his extended family, the schedule identifies his former partner and their son, Child A, two brothers, a former brother-in-law, a sister-in-law, an uncle and two cousins. There is a dearth of evidence from them or their family members to establish Mr Lam's current relationship with them. The schedule also identifies five friends. Mr Lam's Offending Record commences in 2006, approximately two years after his arrival.[62]
6. Mr Lam, based on his Personal Circumstances form[63] and his oral evidence, was employed between November 2019 and August 2023 in warehouse and gardening work.
7. The evidence of Mr Kasiano, Mr Nono and Mr Lam make it clear that Mr Lam made positive contributions to the community, especially in terms of volunteering with the Acholi community organisation.

1. 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.
2. The Tribunal finds that:

(a) Mr Lam's time in Australia can be characterised by alcohol abuse and increasingly serious offending. Less weight is placed on this Primary Consideration as his offending commenced relatively soon after arriving in Australia.[64] > > (b) Weight is accorded to his contributions to the Acholi community, helping raise his sons and his employment. > > (c) Affirming the reviewable decision would likely have negative emotional, practical, and perhaps financial effects on his current partner and their two sons. Ms Darius gave oral evidence that it is she who is financially supporting not only herself and their two sons but Mr Lam in prison as well. > > (d) Given the breakdown in communication with his former partner and their son, the impact is likely less. > > (e) Mr Lam has some prosocial links in the community as evidenced by the supportive letters, although the Tribunal does not consider the impact on the authors, if the reviewable decision is affirmed, rises any higher than disappointment or sadness.

3. Based on its consideration and findings against this Primary Consideration, the Tribunal finds that affirming the reviewable decision would adversely impact those identified people with whom Mr Lam is close. Given the evidence before the Tribunal, this Primary Consideration weighs only moderately in favour of setting the reviewable decision aside. it favours 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 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.[65]
2. This Primary Consideration is enlivened as Mr Lam has three sons who are minors.
3. Summarising Mr Lam's evidence here:

(a) His eldest son by his former partner, Child A, will be seventeen in July 2025. > > (b) Child B and Child C, whose mother is Ms Darius, are respectively fourteen and ten. > > (c) He takes an active parental role with Child B and Child C and looks forward to being a father and role model with them in the future.

4. Child B's support letter describes Mr Lam as "a loving and caring person" and "an amazing dad" and sets out how much Child B misses him.[66]
5. Summarising Ms Crawley' arguments as the Tribunal understands them:[67]

(a) Mr Lam has three children: Child B and Child C, who are both Australian citizens, and Child A, who is a Sudanese national. > > (b) The Respondent contends that even if the Tribunal accepts Mr Lam's claims regarding the support he provides to Child B and Child C, it must also consider the potential impact of his conduct on the children. > > (c) If Mr Lam were to reoffend or engage in further family violence, there exists a real risk of substantial negative impact on the children and their development, as referenced in paragraph 8.4(4)(c). Evidence indicates that children have previously been present during incidents of physical abuse perpetrated by Mr Lam. For instance, on June 27, 2009, when he had a physical altercation with his partner resulting in serious injuries, a child was "in view/hearing of incident" and was observed to be "nervous," "visibly distressed," and "scared." > > (d) Significantly, Child B and Child C are currently included as protected persons on the DVO against Mr Lam. This inclusion indicates that there is evidence suggesting the children require protection against the risk of family violence perpetrated by Mr Lam, as noted in Paragraph 8.4(4). > > (e) While it may be the case that Child A's best interests would favour revocation of the reviewable decision, there is currently no evidence regarding his care arrangements or how the cancellation of Mr Lam's Visa might negatively impact him. Consequently, the Respondent suggests that this consideration should be given either neutral weight with respect to Child A's best interests or, alternatively, minimal weight in favour of revocation.

(a) Because of Child A's age, the lack of evidence about him and the breakdown in communications between his mother and Mr Lam, there is greater weight on the interests of Children B and C in this case. > > (b) Ms Darius has played the primary parental role for Children B and C since Mr Lam went to jail. > > (c) It is unclear what Mr Lam's previous financial contributions were to his family. He has not made any financial contribution since being imprisoned. > > (d) The current DVO's existence is a significant constraint in any future relationship between Mr Lam and Child B and Child C. > > (e) A relationship with each of Child B and Child C would be much more difficult if Mr Lam was repatriated to South Sudan or Sudan. This is a much less favourable alternative to resumed co-parenting in Australia. > > (f) Revocation is in the best interests of Mr Lam's sons, differentiating between Child A on one hand and Children B and C on the other. On balance, this Primary Consideration carries moderate weight in favour of setting the reviewable decision aside.

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

1. This consideration supports setting the reviewable decision aside and carries moderate weight.

PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY**

1. Paragraph 8.5(1) is a deeming provision that provides:

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

2. In addition to the above, paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences in question are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
3. Paragraph 8.5(2) also provides that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns because of conduct, in Australia or elsewhere, of the following kinds:

(g) acts of family violence; > > (h) causing a person to enter into, or being party to (other than being a victim of), a forced marriage; > > (i) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect; > > (j) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; > > (k) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; > > (l) worker exploitation.

4. Paragraph 8.5(3) provides that the Australian community's expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Direction further explains at Paragraph 8.5(4):

'This consideration is about the expectations of the Australian community as a whole, and in this respect, decision‑makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.'

5. Clause 8.5(4) of the Direction 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").
6. Acknowledging the diversity of reasoning in FYBR, the Court's plurality held that "Expectations of the Australian community" is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[68]
7. The reasoning in FYBR establishes that the 'deemed community expectation' will in most cases call for cancellation of a visa, but 'the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision‑maker to determine.'[69]
8. In Ismail v Minister for Immigration, Citizenship and Multicultural Affairs, the High Court stated the following about this primary consideration, albeit in the context of an earlier but comparable Direction:

Further, para 8.4 does not stipulate that, in assessing what weight is to be given to the expectations of the Australian community, the decision-maker must attribute to that hypothesised community knowledge of the personal circumstances of the applicant for the visa as known to the delegate. To the contrary, para 8.4(4) stipulates that the decision-maker is to proceed on the basis of the Australian Government's views as set out in para 8.4 "without independently assessing the community's expectations in the particular case".

Paragraph 8.4(4) is to be understood as directing the decision-maker not to attempt to infer what the expectations of the Australian community would be "in the particular case" (that is, with the knowledge of the delegate about the applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in para 8.4(1)-(3) are the relevant norm described as the expectations of the Australian community. That norm, as applicable by reference to the terms of para 8(1)-(3), is then to be weighed with other relevant matters as required by paras 6 and 7 of Direction 90. The delegate's reasoning accords with these requirements.[70]

1. The Tribunal notes the High Court of Australia also refused an application for special leave to appeal from the orders in FYBR, holding at [301]- [303] that 'there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.'[71]
2. Observing the norm contained in paragraph 8.5, the Tribunal has also considered the guidance informed by the principles set out in paragraphs 5.2(1) to (8) of the Direction. In summary these are:

(a) The Australian government's highest priority is the Australian community's safety. > > (b) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa. > > (c) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia. > > (d) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. > > (e) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. > > (f) In relation to decisions to refuse, cancel and revoke cancellations of visas, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age. > > (g) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non‑citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. > > (h) Certain conduct, like family violence, is inherently serious enough that even strong opposing factors may not be sufficient to prevent visa cancellation or mandatory cancellation revocation. This remains true even if the non‑citizen is assessed as posing no measurable risk of physical harm to the Australian community.

1. Arriving in Australia in 2004, Mr Lam has resided here for approximately twenty-one years. This period of time enlivens Paragraph 5.2(6)'s higher tolerance.
2. The Tribunal has also found Mr Lam's Index Offence to be very serious. This finding balances 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.[72]
3. Mr Lam's Index Offence and his Offending Record involve serious crimes against women, and children as well as acts of family violence.
4. The Tribunal is satisfied that Mr Lam 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. Ms Crawley contends that the consideration of the expectations of the Australian community must weigh against Mr Lam, in accordance with the Direction and relevant case law such as FYBR. Paragraphs 8.5(2) and 5.2(4) of the Direction state that visa cancellation may be appropriate solely on the basis that the nature of the character concerns or offenses are such that the Australian community would expect that the individual to lose their visa. This principle incorporates the Index Offence, as well as Mr Lam's family violence history. The Respondent submits that this consideration weighs heavily in favour of affirming the reviewable decision.
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 significantly 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.[73]

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

(a) The Direction notes that section 197C(1) of the Act provides that for the purposes of section 198, Australia's non-refoulement obligations in respect of that person are considered irrelevant.

(b) Paragraph 9.1.2 of Direction 110 states that claims potentially giving rise to international non-refoulement obligations can be raised by a non-citizen who is not the subject of a protection finding. It specifies that such claims must be considered.

(c) In this case, Mr Lam has made some claims, albeit vague ones, regarding harm that he might face if required to return to Sudan (or possibly South Sudan). Specifically, Mr Lam asserts that he cannot return "without the risk of being killed in the current war."

(d) However, the materials currently before the Tribunal do not indicate Mr Lam claims this risk arises from being personally targeted for any specific reason, or whether it represents a general risk of harm faced by the broader community in Sudan or South Sudan.

(e) As it would be open to Mr Lam to make an application for a protection visa, the Respondent contends that it is not necessary at this stage for the Tribunal to consider Mr Lam's claims in detail, as outlined in Direction 110, paragraph 9.1.2(2). Moreover, the Respondent argues that such detailed consideration would be inappropriate given the limited information Mr Lam has provided regarding the potential risk of harm.

(f) The Respondent suggests that, as foreshadowed in paragraph 9.1.1(2) of the Direction, the Tribunal should proceed on the basis that if and when Mr Lam applies for a protection visa, any protection claims he has will be assessed as required by section 36A of the Act, before consideration is given to any character or security concerns associated with those claims.

(g) Given these circumstances, the Respondent contends that this consideration should be weighed neutrally in the overall assessment of whether to affirm or revoke the cancellation decision.

1. The Tribunal, having considered the evidence, finds:

(a) Mr Lam and Mr Kasiano both described issues Mr Lam would face if returned to South Sudan or Sudan. Some these are best addressed under Other Consideration (b), but Mr Lam did speak of a general fear of harm, relying on the circumstances of his father's death. There was no specific evidence beyond this. > > (b) Mr Lam also contended that he understands his home village to be abandoned and deserted. > > (c) Mr Lam has not specifically contended that he engages Australia's protection obligations, nor does the information before the Tribunal clearly indicate that non-refoulement obligations arise in relation to him. > > (d) It follows that the legal consequence of a decision to affirm the reviewable decision is that he will remain in detention until he is removed from Australia. > > (e) Mr Lam's Visa was not a protection visa, and he is not barred from applying for a protection visa.

2. The Tribunal has decided to defer consideration of Mr Lam's claims to the process undertaken by the Protection Jurisdictional Area of the Tribunal. This is a specialist area that undertakes detailed assessments based on the most recent country information. It is for Mr Lam to advance his non-refoulement claims there. On the very general and uncorroborated documentary evidence available, this Other Consideration carries neutral weight.

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 Lam's oral evidence:[75]

(a) His home village is deserted and its inhabitants live in a refugee camp. The Tribunal notes that Mr Lam also stated he was born in Juba, which is a large city and capital of South Sudan. > > (b) He has no home or connections or prospects of employment there and cannot see how he can establish himself. > > (c) Mr Lam will face very serious impediments in establishing and maintaining basic living standards in South Sudan or Sudan.

(a) Mr Lam has never been to either Sudan or South Sudan since he was born and lacks social networks and connections there. > > (b) There is a level of discrimination and lawlessness against Acholi clan members and Mr Lam there like Mr Lam.

3. Summarising Ms Crawley' contentions as the Tribunal apprehends them:[76]

(a) If Mr Lam is required to be removed from Australia, it is currently unclear whether he would be returned to Sudan or South Sudan. Mr Lam claims to have been born in Juba, which at the time of his birth and departure was located in Sudan. Following South Sudan's secession from Sudan in 2011, Juba is now located in, and serves as the capital of, South Sudan. Consequently, Mr Lam may qualify for South Sudanese citizenship under the Nationality Act, 2011 of South Sudan. Due to this uncertainty, the First Respondent contends that the Tribunal should assess the potential impediments Mr Lam might face if removed to either Sudan or South Sudan. > > (b) There is limited information available to the Tribunal to enable a proper assessment of Mr Lam's circumstances in either Sudan or South Sudan. In his personal circumstances form, Mr Lam states that: > > 1. He "cannot return to Sudan as I was already living in a refugee camp" and that he has: > 2. "no family in Sudan, they have either been displaced or have been killed in the war"; and > 3. "Sudan is war torn & I came here from a refugee camp in Kenya. I cannot return to Sudan as I will probably lose my life." > > (c) Mr Lam also claims that all of his family members are now in Australia. > > (d) Mr Lam has not disclosed any substantial language or cultural barriers, noting that English is the official language of South Sudan. Despite the period since his departure from Sudan, it can be expected that Mr Lam retains sufficient familiarity with the language and culture so that these factors would not constitute significant impediments to him. > > (e) Mr Lam has not provided any evidence regarding his health status, nor has he addressed the social, medical, and/or economic support available to him in either Sudan or South Sudan. > > (f) Notwithstanding the limited information provided, the Respondent accepts that the availability of health services in both South Sudan and Sudan would be limited compared to those available to Mr Lam in Australia. > > (g) The Respondent also acknowledges that given the ongoing conflict in both Sudan and South Sudan, Mr Lam may face a risk of generalised violence should he return, and that he is likely to experience difficulties in establishing himself and maintaining basic living standards. > > (h) Given these circumstances, the Respondent accepts that this consideration should be weighed in favour of setting the reviewable decision aside.

1. The Tribunal here must assess and consider the extent of any impediments that Mr Lam will face in establishing and maintaining basic living standards if removed from Australia to South Sudan or Sudan. It must consider the specific factors described below (in the context of what is generally available to other citizens of that country).
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.

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

1. Mr Lam is thirty-eight.
2. Mr Lam appears in good physical health
3. The Tribunal considers, based partly on its assessment of Primary Considerations 3 and 4, that Mr Lam likely faces a significant loss of emotional and potentially financial support due to separation from his immediate family and friends if he is removed to South Sudan or Sudan.

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

1. The Tribunal considers that Mr Lam, based on his oral evidence and his interaction with the interpreter, would not face any significant linguistic difficulties if he returned to South Sudan or Sudan.
2. The Tribunal considers that Mr Lam may face cultural issues in view of his age when he left Sudan and the period he spent in Australia.

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

1. The evidence before the Tribunal indicates that Mr Lam will likely have relatively less social, medical and economic support in South Sudan or Sudan than in Australia. Consequently, the Tribunal considers that Mr Lam may be confronted by impediments in re-establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of South Sudan or Sudan.
2. Mr Lam does not appear to have any active personal social networks available to him in South Sudan or Sudan. He has lost contact with other family members from South Sudan or Sudan and believes that they have either died or live in other countries
3. His Australian work experience as a gardener and working in warehouses may provide him with the skills needed to find work in South Sudan or Sudan.

1. The Tribunal has considered above the extent of any impediments that Mr Lam, if removed from Australia to South Sudan or Sudan, 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 Mr Lam is returned to South Sudan or Sudan, that he would face emotional, practical and financial 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. He is unlikely to face any language barriers, although there may be cultural barriers.
3. The Tribunal finds that this Other Consideration carries very significant 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.

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

(a) character test: whether there is a reasonable suspicion that Mr Lam does not pass the character test in terms of s 501(6)(b), and whether Mr Lam satisfies the Tribunal that he passes the character test,[77] 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 found above that it was satisfied that Mr Lam 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 Mr Lam' offending is very serious. It also found that the consequences of any such future offending of the type that Mr Lam 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 and significant. The Tribunal further found that Primary Consideration 1 in its totality weighs strongly and substantially in favour of affirming the reviewable decision.
4. Primary Consideration 2 carries very substantial weight towards affirming the reviewable decision.
5. The Tribunal found that Primary Consideration 3 carries moderate weight towards setting the reviewable decision aside.
6. Primary Consideration 4 carries moderate weight in favour of setting the reviewable decision aside.
7. The Tribunal found that Primary Consideration 5 weighs significantly in favour of affirming the reviewable decision.
8. The Tribunal found that the legal consequences of the decision regarding Mr Lam's Visa carries neutral weight.
9. The Tribunal found that the extent of impediments Mr Lam would face if he were removed to South Sudan or Sudan carry very significant weight in favour of setting the reviewable decision aside.
10. Other Consideration (c) carries neutral weight.

1. The Direction does not limit the other considerations to those listed in the Direction (Paragraph 9(1) of the Direction).[78]

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].[79]
3. In applying this process, the Tribunal has regard to the Direction and specifically Paragraph 7(2):

"The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations." (Emphasis added.)

1. The use of the term 'generally' may have the implicit effect of limiting a decision‑maker's capacity to set aside a decision by always giving Primary Consideration 1 greater weight than the combination of all the remaining primary and other considerations, overriding the holistic weighing and balancing exercise described in Demir above. This would consequently remove most, if not all, of the statutory discretion available to the decision‑maker.
2. The decision in Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)[80] sets out a line of higher authorities that substantiates the existence of a discretion in s 501CA(4) to set aside a reviewable decision.[81]
3. His Honour Justice Dowsett's decision in Aksu v MIMA[82] at [10] - [13] is relevant where His Honour found that the Minister had inappropriately fettered his discretion by assuming that each primary consideration bore at least as much weight as each other consideration, regardless of the facts of the case. His Honour Justice Sackville's decision in Lu v Minister for Immigration & Multicultural & Indigenous Affairs[83] at [54] is also applicable.
4. The Tribunal notes that Paragraph 5.1(2) of the Direction refers to the discretion:

"(2) Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion." (Emphasis added.)

1. Taken together these points above support the counterargument that the Tribunal retains a discretion to determine whether 'greater weight' should be given to Primary Consideration 1 in a specific matter.
2. However, the Tribunal considers that, in this matter, Primary Consideration 1's greater weight is enlivened. 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 aside the reviewable decision.

1. Applying s 105 of the ART Act, the Tribunal affirms the decision of the Respondent's delegate's dated 28 February 2025 to cancel Mr Lam's Visa.

Email containing parties' agreed list of applicant's contacts in Australia

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

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

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

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

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

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

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

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

[18] 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.

[19] 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).

[20] 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)].

[42] 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].

[43] 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.

[44] 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).

[45] (1997) 191 CLR 559, 574 ('Guo').

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

[51] 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].

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

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

[65] 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].

[68] FYBR v Minister of Home Affairs (2019) 272 FCR 454 ("FYBR"), at 471-2 [66] (Charlesworth J), and 476 [91] (Stewart J).

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

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

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

[73] 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.

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

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

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

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

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