Bale v Minister for Immigration

On 10 July 2025 the applicant's visa was mandatorily cancelled by a delegate of the Minister under s 501(3A) of the Act on the basis that he had 'a substantial criminal record' within the meaning of s 501(6)(a) of the Act and was serving a sentence for imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a state or a territory. He was notified of the visa cancellation and invited to make representations about revocation.
On 10 July 2025 the applicant requested revocation of the delegate's decision to cancel his visa. On 11 December 2025 the delegate decided not to revoke the cancellation decision pursuant to s 501CA(4) and the applicant was notified of that decision, which is the subject of the current review.
Presently the applicant resides in Villawood Immigration Detention Centre.
The hearing of the application for review was held on 23 and 24 February 2026.

Bale v Minister for Immigration | Case summary | Zoe

[22]

The applicant's criminal history indicates that he committed offences in Australia between May 2023 and May 2025.[16] The circumstances of the offending are set out in the sentencing remarks of the Wagga Wagga Magistrates' Court and District Courts, as well as in Facts Sheets prepared by the New South Wales Police.[17]
It is recorded that the applicant's offending began on 21 May 2023. The applicant was driving his car when he proceeded through an intersection at speed and continued off the road, mounting the footpath and colliding with a support beam to a business structure. The force of the collision forced all air bags in the vehicle to deploy and caused significant damage to the front bonnet of the car. Police arrived a short time later and approached the applicant, who they observed to be well affected by intoxicating liquor. Police also observed a large number of empty alcohol bottles throughout the applicant's vehicle. The applicant was subjected to a roadside breath test, which returned a positive reading, but he failed to provide a sufficient sample of his breath when directed to undergo a breath analysis at the police station. On 19 July 2023, the applicant pleaded guilty to offences of 'refuse or fail to submit to breath analysis' and 'negligent driving (no death or grievous bodily harm)'. He was fined a total of $2,700 and disqualified from holding a licence for 9 months.[18]
On 3 March 2024 the applicant pleaded guilty to 3 charges of 'drive motor vehicle during disqualification period - 2nd+ off' and 1 charge of 'drive with middle range PCA'. He was fined a total of $1,500, disqualified from holding a licence for a further period, and placed on a 12-month community corrections order.[19] The offences relate to the following conduct:
- On 22 October 2023 the applicant was stopped by police after being sighted driving a car at 75km/h in a 50km/h speed zone. Police observed the applicant to have glassy bloodshot eyes, slurred speech and his breath smelt strongly of intoxicating liquor, and formed the opinion that he was well affected by alcohol. The applicant underwent a breath analysis which returned a reading of 0.137 grams of alcohol in 210 litres of breath. The police conducted checks of the applicant's drivers' licence and confirmed that he was a disqualified driver. The applicant was argumentative whilst in custody, questioning police as to why he was stopped given he hadn't "bumped or crashed into anything".[20]
- On 4 November 2023 the applicant was stopped by police after being sighted driving a car at 155km/h in a 110km/h speed zone. The applicant was breath and drug tested with a negative result. The police conducted checks of the applicant's drivers' licence and confirmed that he was a disqualified driver.[21]
- On 21 November 2023 the applicant was stopped by police conducting high visibility patrols. The applicant was breath and drug tested with a negative result. The police conducted checks of the applicant's drivers' licence and confirmed that he was a disqualified driver.[22]
On 9 April 2024 the applicant pleaded guilty to 2 charges of 'drive motor vehicle during disqualification period - 2nd+ off', 1 charge of 'negligent driving (no death or grievous bodily harm)' and 1 charge of 'not give particulars to other driver'. He was fined a total of $3,080 and disqualified from holding a licence for a further period.[23] The offences relate to the following conduct:
- On 3 December 2023 the applicant was attempting to park his car in a disabled car parking space when he collided with the bumper of another car. The driver of the other car asked the applicant for his details. The applicant showed him his Fijian driver's licence, but when pressed for more information the applicant got in his car and drove away.[24]
- On 4 January 2024 the applicant was driving his car when he was stopped by police for random drug and alcohol testing. The applicant became emotional, admitting to police that his licence was disqualified. The applicant was breath and drug tested with a negative result.[25]
On 30 November 2024, police were patrolling when they were alerted to an unregistered car being driven by the applicant. Police stopped the applicant, who was breath and drug tested with a negative result. When the police asked the applicant to provide his drivers' licence, the applicant informed them that it had been missing for the last 2 months, then showed police a driver's licence with a different name and date of birth. The applicant was fingerprinted and his true name and date of birth was identified. On 29 January 2025, the applicant pleaded guilty to offences of 'fail to comply with request or signal to stop vehicle', 'driver or rider state false name or home address', 'use unregistered registrable Class A motor vehicle on road' and 'and 'drive motor vehicle during disqualification period - 2nd+ off'. He was fined a total of $500, placed on a 12-month community corrections order, and disqualified from holding a licence for a further period.[26]
The 11 June 2025 sentence (and appeal decision) related to the following conduct:
- On 26 February 2025 police were patrolling when they saw the applicant driving a car and were alerted that he was a disqualified driver. Police attempted to catch up to the applicant's vehicle, activating their lights and sirens. Police observed the applicant driving at approximately 100km/h in a 50km/h zone before entering the driveway at his home.[27]
- On 18 May 2025 police were conducting random breath testing, directing vehicles into a stationary test site. The applicant was driving a car when he was directed into the testing site. He did not comply, continuing past the testing site and colliding with the "Police Stop" baton. The applicant was located by the police a short time later.[28]
At the hearing, the applicant agreed that the Facts Sheets prepared by the New South Wales Police accurately reflected the circumstances of the offences.

[24]

When asked about his offending at the hearing, the applicant claimed that:
- The 21 May 2023 offence occurred after he was drinking with a few friends. He was hungry so decided to drive into town to get some food, and crashed after he dozed off while driving.
- He was argumentative with police when arrested on 22 October 2023 as he was fearful of the situation he was in. The applicant started the argument because he was concerned that the police may beat him up, because that is what the police did in Fiji.
- He drove whilst disqualified on 4 November 2023 because none of his friends had a licence and convinced him to drive one of them to the Sydney airport. He was speeding as the passenger was late for their flight.
- He drove away from police on several occasions as he was fearful about what would happen when they caught up with him.
The applicant gave evidence that his time in prison and immigration detention had given him an opportunity to look back and consider the bad choices he had made. He realized that his actions had affected him and also those around him, who could have been hurt by his decisions. The applicant stated that he regretted what he had done in the past and was working towards improving himself.
When asked about his course completion certificates and what he had learned, the applicant stated that he had learned about the adverse effects of operating a motor vehicle whilst intoxicated, that he should consider the consequences of his actions before making decisions, and how to become a better person and citizen. When asked whether he had been aware of these concepts prior to coming to Australia, the applicant stated that it was the first time he had been exposed to these kinds of teachings, for which he was grateful.
The applicant's friend DT also gave evidence about the applicant's offending. DT, who is employed as a Youth Officer with the New South Wales Department of Community and Justice, stated that she was unaware of the applicant's offences until he was imprisoned in 2025. It was only then that the applicant told her all about his criminal conduct and apologized for what he had done. DT believed that the applicant would have been ashamed of his actions and reluctant to seek help. This was a mentality she had observed in a lot of Fijian workers in similar positions to the applicant. These workers would come to Wagga Wagga with the 'same mentality' as in Fiji, with no understanding of Australia's laws or cultural context. DT stated that she was willing to mentor the applicant to ensure that he followed the 'right path' in the future.
The applicant's representative has submitted that the applicant's offences are limited, and while repetitive, are confined to traffic related matters.[29] Mr Nikjoo conceded that it may be open to the Tribunal to find that the offending which led to the 11 June 2025 sentence was serious, but submitted that as he was only driving a short distance, the risk the applicant posed to the Australian community was lower than if he were driving for a protracted period. In support of this submission Mr Nikjoo drew the Tribunal's attention to the Appeal Judge's remarks, in which her Honour stated, "So I will just note that mount Austin and Tolland are adjoining suburbs in Wagga. The relevance of that is police followed the appellant's vehicle for a short period".[30]
Mr Nikjoo further submitted that the applicant's personal circumstances were highly relevant considerations in understanding the context in which the offences were committed and the risk that he posed in the future. When the offences were committed the applicant's understanding of Australian road safety rules and the role of the Australian police were heavily influenced by his Fijian experience, a point that was emphasised by DT. Mr Nikjoo cited the applicant's 26 February 2025 offence - committed just one day after he entered into the Community Corrections Order imposed on 29 January 2025[31] - as illustrating that "he was ignorant of the law" and did not know better. Mr Nikjoo submitted that in contrast, the applicant now has insight into his behaviour, has completed courses to address his offending, and the time spent in custody and immigration detention has deterred him from further offending. He referred to the following remarks of the Appeal Judge as underscoring the negligible risk the applicant now posed:

[31]

The Tribunal has had regard to the applicant's criminal history, those factors which have been put forward as contributing to the applicant's past conduct, and evidence of the applicant's remorse and rehabilitation.
The Tribunal finds that the applicant's criminal history is extensive, given the relatively brief period that he has resided in Australia. Whilst the Tribunal accepts that the applicant's offending and his attitude towards police may be partially attributable to the cultural differences he experienced when settling in Australia, it agrees with the respondent's submission that the cultural differences do not sufficiently explain the applicant's ongoing disregard for the law over a period of over 2 years, despite a number of interactions with law enforcement authorities and the judicial system and a range of punitive measures being imposed over that period. The Tribunal considers that the root cause of the applicant's offending stems from his inability to appreciate the importance of Australia's road safety laws and comply with court orders, and his poor decision making and susceptibility to pressure from others.
The Tribunal has considered the evidence of the applicant's remorse and rehabilitation.
The Tribunal accepts the applicant's oral evidence that he is genuinely sorry for his behavior. The Tribunal accepts the respondent's submission that several of the courses the applicant has completed do not appear to have been directed at the root cause of his offending. For example, the applicant has completed drug and alcohol courses[33] despite there being no evidence that the applicant drove whilst intoxicated after 22 October 2023, and anger/stress management courses[34] despite there not being any suggestion that he has had problems with aggression or violence. However, there is evidence to indicate that the applicant now has insight into his conduct and will be deterred from engaging in similar conduct in the future:
- In respect of his inability to appreciate the importance of Australia's road safety laws and compliance with court orders, the Tribunal has placed weight on Community Corrections' assessment of the applicant as a 'low' risk of reoffending, as well as her Honour's finding that the applicant 'now clearly understands that any further driving offences will likely see him return to gaol'.[35]
- In respect of his poor decision making and susceptibility to pressure from others, the applicant has completed courses in building self-esteem and decision-making[36] and now appears to appreciate the potential causes and consequences of his actions. At the hearing, the applicant gave evidence that he was easily influenced, and when pressured by friends he felt like he 'had no choice' but to do what they asked, even if it involved breaking the law. The applicant claimed that if the same thing happened now, he would not make the same choice. He was stronger now and had gone through counselling and completed courses that meant that he could make the right decision. If someone were to pressure him now, he would look back at the consequences of his past actions, namely prison and detention.
The Tribunal is satisfied that the deterrent effect of the applicant's incarceration and detention, coupled with the insight he has gained from the courses he has completed, has significantly reduced his risk of reoffending. However, the Tribunal is mindful that the applicant's stated intention to comply with Australian laws has not yet been tested in the community, and he has not yet demonstrated that he will resist the temptation to drive without a license when confronted with the opportunity to do so. Without any evidence that the applicant has demonstrated his ability to comply with Australia's road safety laws, the Tribunal considers that there is a more than minimal or remote risk that the applicant would drive without a license if he were permitted to reside in Australia permanently (which is his intention, if granted a protection visa). This leads the Tribunal to conclude that there is a risk that if the applicant were allowed to remain in Australia, the applicant would engage in criminal conduct in Australia. The Tribunal finds that the applicant does not pass the character test: 501(6)(d)(i).

[50]

The Tribunal has had regard to the circumstances of the offending set out at [‎26]-[‎32] above.
Mr Nikjoo submits that with the exception of clause 8.1.1(1)(b)(iii), the applicant's offences do not fall within the category of "very serious" or "serious" offences specifically cited in the Direction.[39] At the hearing he conceded that the offending leading to the 11 June 2025 sentence could be considered serious within the meaning of the Direction, but submitted that it was not, reiterating that the applicant only drove a short distance and accordingly that the risk he posed was lower than if he drove for a protracted period. Mr Nikjoo further submitted that while the cumulative effect of the applicant's repeated offending could be considered serious within the meaning of cl 8.1.1(1)(f) of the Direction, that the Tribunal ought to have regard to the fact that the applicant was 'ignorant of the law', having come from a culture which did not place such emphasis on road safety laws and in which police were to be feared.
The respondent submits that while driving offences do not appear in the list of examples of "very serious" or "serious" conduct in paragraph 8.1.1(1) of the Direction, those examples are non-exhaustive and an assessment of seriousness turns on the circumstances of each case.[40] The respondent submitted that the Tribunal has consistently found that driving offences (including driving under the influence and dangerous driving) are serious, as they are illustrative of a 'reckless indifference to the safety of the wider community' and 'a lack of respect for the rules governing the operation of a motor vehicle'.[41] The respondent submits that the applicant's offending is 'very serious',[42] underscoring the fact that the applicant began offending around 1 year after his arrival in Australia and continued to offend until he was incarcerated. At the hearing, Mr Knuckey submitted that regard ought to be had to Principles 5.2(2) and (5) of the Direction, which relevantly state that the safety of the Australian community is the highest priority of the Australian government, and that Australia has a low tolerance of any criminal or other serious conduct by visa applicants holding a limited stay visa[43] or participating in and contributing to the Australian community only for a short period of time.

[56]

There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[50]
As was noted above, the applicant's representative has submitted that the applicant's experiences in prison and immigration detention have changed him. He now has insight into his behaviour and has completed courses to address his offending, such that his risk of reoffending is 'low'. Citing the findings of the Appeal Judge, Mr Nikjoo submits that the applicant has learned his lesson (having spent 3 months in jail), is remorseful, has reasonable prospects of rehabilitation, and is unlikely to reoffend in circumstances where he now understood that any further driving offences would likely see him return to jail.
In his written submissions, the respondent relies on the findings of SM Puplick that a 'repetitive' driving offender such as the applicant poses a 'real and potent risk to the lives of other road and vehicle users and to himself and his passengers, including children'.[51] The respondent submits that serious deriving offences pose a significant risk of harm to the community,[52] and that there is a 'very high likelihood' of the applicant reoffending in a similar manner, despite the evidence of the rehabilitation he has presented. The respondent notes that:
- the applicant's offending began the year after his arrival in Australia and continued with regularity until his incarceration and detention;[53]
- some of the rehabilitative courses he has completed were compulsory punitive measures imposed by the courts and others completed while the applicant faced potential removal;
- there is no evidence that any course has had a meaningful rehabilitative impact or reduced the risk posed to the community (and conversely there is evidence he has not taken past rehabilitative efforts seriously); and
- and his expressions of remorse were made following his visa cancellation and should be afforded minimal weight.[54]
The respondent states that the potential harm could involve very serious injury or death and, in the absence of persuasive evidence that he would not continue to offend, poses an unacceptable risk to the Australian community.[55]

[57]

For the reasons discussed at [‎58]-[‎59] above, the Tribunal accepts that if the applicant were to re-offend in the same manner as he has previously, the nature of the potential harm to the Australian com[56]nity would be serious.56 However, for the reasons discussed at [‎42] above, the Tribunal is satisfied that the deterrent effect of the applicant's incarceration and detention, coupled with the knowledge he has gained from the courses he has completed, has significantly reduced the risk that he will engage in [57]rther offences or serious conduct.57 Contrary to the respondent's submission, the Tribunal finds that the applicant is genuinely remorseful for his behaviour and the potential harm he may have in[58]icted on members of the community.58 The Tribunal accepts the respondent's submission that some of the rehabilitative courses completed by the applicant may have been compulsory punitive measures or motivated by his potential removal from Australia, but regardless of his motivation, finds that the applicant has gained insight into the behaviour underpinning his offending, and is determined not to [59]peat that behaviour in the future.59 The Tribunal has earlier found that there is a more than minimal or remote chance that the applicant would engage in criminal conduct if allowed to remain in Australia because his rehabilitation has not yet been tested in the community, but considers that the risk he pose[60]is not 'unacceptable'.60 The Tribunal has placed weight on the Appeal Judge's finding that the applicant's risk of re-offending would be better addressed in the community to allow him to engage with Community Corrections and address any factors that[61]ave led to his previous offending.61 The Tribunal infers from this finding that the Appeal Judge did not consider that the applicant presented an unacceptable risk to the Australian community.
The Tribunal has also had regard to the evidence of the applicant's sister (referred to as JB) and DT, who have both stated that they intend to help him by providing him with accommodation, support and guidance. This is a material change in the applicant's circumstances, as both JB and DT gave evidence that they were unaware of the applicant's offending until after he was incarcerated in May 2025. The Tribunal accepts that these protective factors may also reduce the likelihood of the applicant re-offending.
On the evidence before it, the Tribunal accepts that the applicant's remorse, rehabilitation, the deterrent effect of his imprisonment and detention, and the offers of accommodation and support are protective factors which significantly reduce the risk presented by the applicant, even after considering his past behavior.

[62]

The Tribunal must also consider the strength, nature and duration of the applicant's ties to Australia as set out in paragraph 8.3 of the Direction. Paragraph 8.3(1) requires the Tribunal to consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(2) of the Direction states that the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, whether the non-citizen began offending, the time the non-citizen has spent contributing positively to the Australian community, and the strength, duration and nature of any family and social links with Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
The applicant has no immediate family members in Australia who are Australian citizens, permanent residents, or who have had a right to remain in Australia indefinitely.[62] The applicant gave evidence that his mother and 2 siblings live in Fiji, and a third sibling, JB, lives in Australia with her husband and their child. At the hearing, JB gave evidence that she and her family currently hold bridging visas granted in connection with their Temporary Graduate (subclass 485) visa applications. As JB and JB's family are not Australian citizens, permanent residents, or have a right to remain in Australia indefinitely, the Tribunal has not considered the impact of its decision on them for the purposes of this consideration.[63]
The Tribunal has also considered the strength, nature and duration of the applicant's other ties to the Australian community, noting that as the applicant's offending began around 1 year after his arrival in Australia, less weight should be given to this consideration.[64]
The applicant's representative has submitted that the applicant's links in Australia include his family, friends and members of the Fijian and LGBTI communities. These include his uncle (referred to as P),[65] an Australian citizen, and his former colleagues at Regional Workforce Management. The Tribunal accepts that P is an Australian citizen, but in the absence of any evidence that the applicant's Regional Workforce Management colleagues are Australian citizens, permanent residents, or have a right to remain in Australia indefinitely, the Tribunal has not considered the impact of its decision on them for the purposes of this consideration.[66]
The Tribunal has considered the evidence of the applicant's links to the Australian community[67] contained in his written and oral evidence,[68] the evidence of JB,[69] DT,[70] and the applicant's friend SN,[71] the written statement of P,[72] and the letters from Mr Wood (PCYC Senior Activities Officer)[73] and Mr Naidoo (Onsite Account Manager, Regional Workforce Management).[74] The Tribunal accepts that the applicant was continuously employed from 23 February 2022 until the date he was incarcerated, and was highly regarded for his strong work ethic and willingness to help others.[75] The Tribunal accepts his referees' claims that the applicant was also an active member of the local [country] community in [town], regularly participating in community events, fundraising efforts and assisting others who needed help. The Tribunal also accepts that the applicant is involved in the Fijian queer community in Australia and has attended queer Fijian events in Wagga and greater Sydney.
Considered in isolation, the Tribunal finds that the applicant's family and social links with Australian citizens, permanent residents and/or people who have an indefinite right to reside in Australia (such as P and DT) and his positive contributions to the Australian community weigh moderately in favour of revocation. However, it has afforded less weight to these factors due to the relatively brief period the applicant has spent contributing positively to the Australian community (namely from 2022, when he commenced work, until his incarceration in May 2025), and the fact that he began offending soon after he arrived in Australia.
Overall, the Tribunal finds that this consideration weighs slightly in favour of revocation.

[65]

Paragraph 8.5(1) of the Direction states that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that 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 would not allow them to enter or remain in Australia.
Paragraph 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. This includes an expectation that a visa should be cancelled if they raise serious character concerns because of certain specified acts (none of which are relevant in the present case).[76]
Paragraph 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
The expectations of the Australian community as a whole are to be considered. The Direction directs that 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: paragraph 8.5(4) of the Direction. It is not for the Tribunal itself to determine such expectations.[77] A decision maker can take into account the personal circumstances of an individual insofar as they are relevant to another primary consideration or one of the other considerations and adjust the relative weight to be given to each of the considerations accordingly.[78]
In RCLN the Federal Court of Australia held that the assessment of community circumstances is not a matter of evidence and does not turn on the personal circumstances of the individual non-citizen. The Court held that a decision maker can take into account the personal circumstances of an individual insofar as they are relevant to another primary consideration or one of the other considerations and adjust the relative weight to be given to each of the considerations accordingly.[79]
The applicant's representative has acknowledged that the expectations of the Australian community 'is regarded as presumptively against the applicant', but submits that in light of all the circumstances of this case, this consideration should not outweigh the other compelling considerations in the applicant's favour.[80]
The respondent has submitted that the applicant has engaged in serious offending for the majority of his short stay in Australia, and in doing so has breached the community's expectation that non-citizen's will obey Australian laws[81] and the principle that the Australian community has a low tolerance with respect to offenders who have only participated in the community for a short period of time.[82]
On the evidence before it, the Tribunal finds that the applicant has continually failed to obey laws while in Australia. In particular, the Tribunal finds that the applicant's repeated driving offences constitutes serious conduct in breach of the Australian community's expectations, and accordingly that the Australian community, as a norm, would expect the Government not to allow the applicant to remain in Australia, regardless of the risk he actually poses.[83] However, in attributing the weight to be afforded to this consideration, the Tribunal accepts that the applicant's conduct does not include the serious character concerns specifically identified in paragraph 8.5(2) of the Direction.
Overall the Tribunal considers the expectations of the Australian community weighs moderately against revocation.

[66]

The Tribunal is required to consider the legal consequences of a decision on a non-citizen pursuant to paragraph 9.1 of the Direction. This includes having regard to Australia's non refoulement obligations in respect of unlawful non-citizens, where relevant.
Generally, if a visa is cancelled, its former holder becomes an unlawful non-citizen immediately after cancellation. Under s 189 of the Act, the applicant must be detained and removed as soon as reasonably practicable under s 198.[84]
The applicant is not presently subject to a protection finding but has raised claims capable of enlivening Australia's non-refoulment obligations. By reason of this fact the provisions of paragraph 9.1.2 of the Direction are enlivened.
Paragraph 9.1.2(1) of the Direction provides that claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding in seeking revocation of the mandatory cancellation of their visa under s 501CA of the Act. Where such claims are raised, they must be considered.
Paragraph 9.1.2(2) provides that where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. Paragraph 9.1.2(2) also provides that having considered the person's representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
At the hearing, the applicant gave evidence that he identified as a transgender, but when living in Fiji he had felt pressured to dress and act in a more masculine manner for his own safety.[85] Living in Australia had given him the confidence to celebrate himself, his sexuality and his lifestyle publicly, including by dressing and acting in a more feminine manner. The applicant had 'come out' as queer in Australia, including publicly posting photos of himself in more feminine clothes to Facebook,[86] which he believes would have been seen by people back in Fiji. The applicant feared that if he had to return to Fiji he would be discriminated against because people would be aware that he had 'come out' in Australia. Amongst other things, he was concerned about being able to get a job, as employment in the hospitality sector (where he had previously worked as a barman and barista) was largely based on the recommendations of others. The applicant claimed that people would refuse to help him find work if he were to seek employment in Fiji because he had come out as queer in Australia.
The applicant's representative has submitted that as an LGBTQI+ individual, the applicant faces a risk of discrimination and violence in Fiji. He has lodged an application for a protection visa which is awaiting processing by the Department, which the Tribunal should regard in his favour.[87] The applicant submits that the Tribunal should take into account the 'real and tangible' consequences of its decision, including the potential for removal to a third country other than is country of origin and the associated hardships, when assessing his case.[88]
The respondent has submitted that the applicant's protection related claims should attract only limited weight in favour of non-revocation,[89] and that it would be speculative for the Tribunal to find that the applicant may be removed to a third country, as it must apply the Direction to by reference to the facts and circumstances that presently exist,[90] and there was currently no indication that the applicant would be removed from Australia pursuant to an agreement with a third country.[91] The respondent states that the appropriate course for the Tribunal would be to note and consider the applicant's representations, but to defer any detailed assessment of non-refoulement issues to the protection visa process, consistently with the reasoning in Plaintiff M1/2021.[92]
In a limited setting such as this, which is an expedited hearing, the task of the Tribunal is difficult. There are significant barriers to reaching a concluded view on the nature of Australia's international non-refoulement obligations towards the applicant on the limited material before it. In these circumstances, and as the applicant has lodged a protection visa application which is yet to be determined by the respondent, the Tribunal considers that it should defer further consideration of whether the applicant is owed any international non-refoulement obligations in accordance with the decision of the High Court of Australia in Plaintiff M1. Such an application would, as the respondent contends, involve a more comprehensive assessment of whether the applicant is owed protection obligations, and would enable him to place before the decision-maker far more extensive material that would enable a properly informed decision to be reached.
Given that the applicant's protection visa application remains undetermined, the Tribunal accepts that if it were to affirm the decision under review, the applicant would be ineligible for a bridging visa[93] and accordingly would likely remain in immigration detention until a decision is made to grant or refuse the protection visa.
On the evidence before it, the Tribunal accepts that the applicant identifies as transgender, and that his claims to fear discrimination in Fiji on the basis of his sexuality will be assessed before consideration is given to any character or security concerns. As the respondent has submitted that there is currently no indication that the applicant would be removed from Australia pursuant to an agreement with a third country, the Tribunal agrees with the respondent's submission that the applicant's possible removal to a third country is speculative. In particular, the Tribunal accepts the respondent's submissions that there is currently no indication that the applicant would be removed from Australia pursuant to an agreement with a third country pursuant to the provisions of Subdivision B of Part 1, Division 8 of the Act.[94]
However, the Tribunal also accepts that if it were to affirm the decision under review, the applicant may be held in immigration detention until his character and security were assessed as part of the protection visa application, even if he were to be found to be owed non-refoulement obligations, and that this assessment may be protracted. Whilst the Tribunal accepts that the applicant's protracted detention follows 'as a matter of statutory construction and it may be said that Parliament intended them to follow for so long as the person has the status of an unlawful non-citizen',[95] it also notes that Parliament also intended that the statutory consequences would not befall applicants' visas which are revoked under s 501CA(4) of the Act, and that there is no presumption that Parliament has evinced a preference for a decision that the cancellation should not be revoked.[96]
The Tribunal acknowledges the personal hardship the applicant may experience as a result of the above legal consequences if the cancellation of his visa were not revoked, and accordingly finds that this consideration weighs moderately in favour of revocation.

[67]

Paragraph 9.2(1) of the Direction provides that decision makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, which in the applicant's case is Fiji. The Direction states in doing so decision makers should take into account the applicant'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.
The Tribunal accepts that the applicant lived in Fiji from birth until he was 31 years old, and accordingly finds there are no substantial language or cultural barriers as an impediment if removed. Nor is there any evidence that the applicant would face any impediments in re-establishing himself in Fiji based on his age or health.
At the hearing, the applicant gave evidence that his mother and 2 of his siblings still reside in Fiji. One of his siblings is hospitalised with a mental illness, and the applicant was the primary carer for her child (his nephew) before he moved to Australia. The applicant's nephew now lives with the applicant's mother, but as his mother is elderly and does not work, the applicant has been financially supporting them with his savings.
As noted above, the applicant has claimed that he will be discriminated against if he were required to return to Fiji because of his sexuality, including by being unable to find a job to support himself and his family members. JB gave evidence at the hearing that she would struggle to financially support the applicant if he were not permitted to remain in Australia, as she had just had a baby and her husband had to provide for his family members. JB also claimed that the applicant's brother would be unable to support him as he had his own family to care for. She claimed that things were currently quite bad for her family financially, to the extent that the electricity to their mother's home was recently disconnected as her mother had used all of her money to pay for their other sister's medical care.
On the evidence before it, the Tribunal accepts that the applicant would have limited social and economic support if he returned to Fiji due to his limited family support and the employment discrimination and social ostracism he will likely face due to his transgender profile. Information in the DFAT Report provided by the applicant[97] indicates (at [3.64]) that transgender people report high levels of discrimination and abuse in Fiji, and that while some transgender women are seen and may even be accepted as 'entertainers', they may find it difficult to find mainstream employment. The Tribunal accepts that if the applicant were unable to find employment (which it considers likely), he would struggle to establish himself and maintaining basic living standards in Fiji.
The Tribunal considers the extent of impediments if removed weighs heavily in favour of revocation.

[76]

Paragraph 7 of the Direction sets out the way in which the relevant considerations are to be taken into account and weighed. The Tribunal is required to bring together the relevant considerations in this matter and consider, as part of a single evaluation, their relative significance in terms of whether it is ultimately satisfied that there is 'another reason' why the original decision should be revoked. The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations, and the primary considerations should generally be given greater weight than the other considerations.[101]
In FHHM,[102] the Full Court considered s 8.4 of Ministerial Direction 79, which also stated that primary considerations should generally be given greater weight than other considerations. O'Callaghan and Colvin JJ, Derrington J agreeing, referred to remarks made by Colvin J in Suleiman,[103] stating (at [34]) that 'particular circumstances may pertain that may justify greater weight being to one or more of the other considerations than one or more of the primary considerations'.
Applying the court's reasoning in FHHM, the Tribunal considers that:
- the use of the word 'generally' in paragraphs 7(1) and 7(2) of the Direction indicates that the decision maker is not bound to apply those paragraphs rigidly when conducting the weighing exercise; and
- there may be circumstances which justify affording greater weight to one or more of the 'other' considerations than one or more of the primary considerations.
In conducting the weighing exercise, the Tribunal has had regard to the significance the Direction places on the principles that the safety of the Australian community is the highest priority of the Australian government, and that Australia has a low tolerance of any criminal or other serious conduct by visa applicants holding a limited stay visa or who have been participating in and contributing to the Australian community only for a short period of time.[104] In this case, the applicant has committed numerous driving offences over the brief period he has resided in the Australian community as a temporary visa holder. Balanced against this, the applicant has demonstrated remorse for his conduct, undertaken rehabilitation since his last offence, has been assessed as a low risk of reoffending, has established ties with the Australian community (including in the queer community), has applied for a protection on the basis that he would experience significant discrimination in Fiji because of his sexual orientation, and has given evidence that he would experience significant impediments if removed from Australia to Fiji.
The Tribunal considers that in the circumstances of the present case, substantial weight should be afforded to the 'primary' consideration of the strength, nature and duration of ties and the 'other' considerations of the legal consequences of the decision and the extent of impediments if removed when weighing up all of the factors relevant to the exercise of its' discretion.
Having weighed up these factors, the Tribunal is satisfied there is another reason why the visa cancellation of the applicant's visa should be revoked.

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Judgment (131 paragraphs)

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Legislation Cited (2)

Cases Cited (18)

LKMN and Minister for Immigration and Citizenship (Migration) [2026] ARTA 315 (6 March 2026)