Migration Act 1958 (Cth)

Administrative Review Tribunal Act 2024 (Cth)

Direction No 110 - Migration Act 1958 - Direction under section 499 - Visa Refusal and Cancellation under section 501 and revocation of mandatory cancellation of a visa under section 501CA

1. The Applicant, Mr Burke, is a 39-year-old citizen of the United Kingdom. He first arrived in Australia on the 28 October 2019 as the holder of a Temporary Skill Shortage (subclass 482) visa for the purpose of employment with his approved sponsor Janssen-Cilag Pty Ltd in the skilled occupation of Economist.[1]
2. On 16 October 2020 the Applicant was convicted of Assault Occasioning Actual Bodily Harm - Domestic Violence related.[2] He was sentenced to a Community Corrections Order of 12 months. A revised unsupervised Community Correction Order was issued on 20 October 2020.[3]
3. On the 27 July 2021 a delegate of the Minister cancelled the Applicant's visa under s. 116(1)(g) of the Migration Act on the basis that the Applicant was convicted of criminal conduct.[4] The Applicant sought review of the decision to cancel his visa at the former Administrative Appeals Tribunal (AAT) and on 2 June 2022 the Tribunal set aside the delegate's decision and substituted for a decision not to cancel his visa.[5]
4. On the 15 February 2023 the Applicant, applied for an Employer Nomination (Permanent) (Class EN) visa.[6] On 6 February 2025, a delegate of the Minister for Immigration and Multicultural Affairs, refused his application for an Employer Nomination (Permanent) (Class EN) visa on the basis that the Applicant does not pass the character test in s 501(6) of the Migration Act 1958 (Cth) (the Act) by operation of s 501(6)(d)(i) that should he be allowed to stay in Australia there is a risk he would engage in criminal conduct.[7]

1. The Applicant seeks review of this decision. He submits that he does not fail the character test by operation of s501(6)(d)(i) of the Migration Act 1958 (Cth) ('the Act'). Additionally, and, in any event, he argues there are reasons why the visa refusal should be revoked in accordance with Direction 110.

1. The Tribunal has jurisdiction to review a decision to refuse to grant a visa under s 501(1), where the application for review is lodged within nine days after the decision is notified: s 500(6B).[8] In this case, a delegate refused to grant the visa, and the Applicant was notified on 21 February 2025. The application for review of that decision was lodged on 27 February which is within nine days after the decision was notified. The Tribunal therefore has jurisdiction to hear and determine the application.

1. Section 501(1) of the Act states that the Minister may refuse to grant a visa to a person if the Minister is not satisfied that the person passes the character test.
2. The character test is defined by subsection 501(6) which sets out a range of grounds on which a person is said to not satisfy the character test.
3. The Minister under section 499 of the Act issued a Direction dated 7 June 2024 - Direction No.110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA - which made directions to which decision makers must comply in the exercise of power under section 501 and 501 CA of the Act.
4. Relevant to this matter, Annex A of the Direction 110 provides the following additional clarifications on the operation of s501(6)(d). These are that:

(2) The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.

(3) it is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.

1. Annex A of the Direction further indicates that the reference to criminal conduct in s501(6)(d) (i) must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.
2. The Direction sets out overarching principles which decision makers must consider in determining matters under s 501. These are that:

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non­citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2) The safety of the Australian Community is the highest priority of the Australian Government.

(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

(5) Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non­citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

1. The primary considerations referenced in the overarching principles are:

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

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

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

(4) the best interests of minor children in Australia; and

1. The other considerations which must be taken into account where relevant include, but are not limited to:

1. The Tribunal has considered all the documents in the parties' joint tender bundle in the Hearing Book and in addition the Respondents Further Tender Bundle and documents submitted at the hearing.
2. In determining its decision, the Tribunal has specifically considered the following evidence and submissions:

(a) The Applicant's Statement of Facts Issues and Considerations. > > (b) The Respondent's Statement of Facts Issues and Considerations. > > (c) The Australian Federal Police Check dated 21 January 2025, which outlines the details of the offence. > > (d) All the provided versions of the Statutory Declaration for the Applicant. It is noted that there are four provided versions, with the most recent dated 26 March 2025. > > (e) A Support letter from Mr Burke's employer - dated 7 March 2025. > > (f) The Statutory Declaration from Mr Burke's current supervisor Brandon Jones dated 7 March 2025. > > (g) The Psychotherapist reports dated the 13 October 2020, 30 October 2023 and 03 January 2025 from White Star Therapy. > > (h) Community Correction Order dated 16 October 2020, and a revised Community Correction Order dated 20 October 2020. > > (i) A letter of completion of community service hours dated 4 February 2021. > > (j) The sentencing assessment report by NSW Corrections Services pertaining to the offence dated 6 October 2020. > > (k) The certificate of completion of ENGAGE intervention by Baptist Care dated 5 September 2020. > > (l) Particular weight has been given to the report from forensic psychologist, Ms Delphine Bostock. Paragraphs 56-58, 60 and 61 where the discussion of Mr Burke's risk of reoffending is discussed. The paragraphs are as follows: > > 1. Risk assessment is a process by which the likelihood of a person committing further offences is determined. This determination is typically based on the evaluation and consideration of two types of risks - historical (static) factors; and dynamic factors. Static risk factors are unlikely to change (e.g. age at first offence) whereas dynamic risk factors are typically considered areas of treatment need (e.g.: poor problem-solving skills; use of drugs etc.). > 2. Risk assessment can be a limited process dependent on the type and quality of information available at the time, as well as sensitive to fluctuation in changes of dynamic factors. Actuarial tools can be used in this process and involve specific calculation of the presence of static risk factors that are then summed into a total score and placed into broad category range of risk (eg - low, moderate, high) based on comparison to individual or group norms. > 3. Mr Burke was assessed using the Level of Service/Case Management Inventory (LS/CMI; Andrews, Bonta & Wormith, 2004). The LS/CMI assessment is a quantitative survey of offender attributes and situations that provides information about the level of risk/need across eight domains. It is widely used to assess risk by corrections departments both nationally and internationally and has demonstrated internal consistency; inter-rated and test-re-test reliability as well as predictive validity. > 4. Mr Burke's overall score on the LS/CMI was 0 which placed him in the Very Low risk of reoffending. His score was below 100% of incarcerated male offenders and 99.3% of community-based male offenders in the North American normative sample. > 5. Mr Burke was assessed as Low risk by Corrective Services NSW in 2020 on the Level of Service Inventory Revised (LSI-R), an earlier version of the LS/CMI. > > (m) A manual explaining the Level of Service/Case Inventory (LS/CMI) risk assessment. (Andrews, Bonta and Wormith (2004)) (titled 'Source 1'). > > (n) A corrective service NSW manual on the Level of Service - inventory Revised (LSI-R) Assessment within NSW Correctional Environments by Ian Watkins (titled 'Source 2').

3. In addition, the Tribunal has considered the Applicant's oral evidence and that of his witnesses and oral submissions from the Applicant's and Respondent's legal representatives.

1. The first task for the Tribunal is to determine whether the Applicant does not pass the character test by operation of s 501(6)(d)(i) as there is a risk that he would engage in criminal conduct in Australia.
2. As set out above Annex A of Direction 110 the assessment of risk needs to be no more than minimal and remote but cannot derive solely from the fact that a person has engaged in criminal conduct in the past; there needs to be evidence over and above the past criminal conduct.
3. This is not to say, however, that past criminal conduct is not relevant as Direction 110 stipulates in the overarching principles, criminal conduct involving family violence is serious such that even though a non-citizen does not pose a measurable risk strong countervailing considerations may be insufficient to justify not refusing a visa.
4. The Respondent's position is that the Applicant has committed a crime of family violence, a serious crime for which the Australian community has zero tolerance. In the context that the Applicant is applying for a permanent stay visa and the serious nature of his past criminal offence mean that the risk assessment of future criminal conduct needs to be stringently made.
5. The Respondent submits that that there is a risk that the Applicant would engage in future criminal conduct because of the serious nature, that is family violence, of the offence and the Applicant's failure to sufficiently engage in appropriate rehabilitation programs.
6. In particular the Respondent submits that the Applicant has failed to sufficiently engage in rehabilitation programs directed towards domestic violence and that there is little evidence of rehabilitation in relation to alcohol consumption or any evidence indicating his current alcohol use.
7. The Respondent noted that the Applicant continues to consume alcohol and relies only on self-monitoring to ensure that his intake his at an acceptable level. As alcohol played a part in the Applicant's offending then his ongoing alcohol dependency means that there is more than a remote or minimal risk that he will engage in future criminal activity
8. As noted in Direction 110 matters of family violence are always taken to be serious and therefore the assessment of risk of future criminal conduct should be stringent.
9. The Applicant does not dispute that his past criminal conduct was an act of family violence and serious by nature. However, the Applicant submits that it was a singular event and out of character. Alcohol played a part but there were other contributing factors. It took place during the COVID lockdown and the accumulation of stressors including social isolation during that period, the recent death of his grandmother and inability to attend her funeral, and work stressors may have had some impact. He does not suggest that these factors in anyway justify his action by they were so to speak a one-off set of circumstances.
10. The Tribunal accepts the Applicant's evidence as to the circumstances in which the offending took place. The Tribunal also accepts the Applicant's oral evidence to the Tribunal and his statutory declaration that he is remorseful. His written and oral evidence demonstrate both remorse and insight into the seriousness of his actions as well as the impact of his actions on his former partner and the community at large.
11. The Tribunal notes that there are varying interpretations as to whether the Community Corrections Order required the Applicant to undertake specific rehabilitation courses, which he has failed to do. There are two Orders. One made on the 16 October 2020 and a revised Order made-on 20 October 2020.
12. The Tribunal notes the Community Correction Order of 16 October 2020 under the heading standard conditions, in addition to requiring 100 hours of community service also requires the Applicant to "participate in any programs, treatment, intervention or related activity in the order or by a Corrections Officer for the period of the order. It then states Rehabilitation/treatment - Domestic Violence and alcohol.
13. The revised Community Correction Order dated 20 October 2020 suspends the condition requiring supervision of the Applicant's community service and no mention is made of specific rehabilitation conditions under the heading standard conditions.[9]
14. Regarding whether the Applicant has engaged in appropriate and sufficient rehabilitation following his offence, the Applicant provides evidence that he has undertaken the following rehabilitation courses. He has undertaken rehabilitation programs through participation in the Baptist Care ENGAGE module on 5 September 2020 and has ongoing counselling at White Star Therapy, Abundant Life Health Care Centre with Ms Desiree Gawronski and has done so since August 2020.[10]
15. The Applicant rejects the Respondent's position that these courses were not specifically targeted to domestic violence. The Applicant also rejects that alcohol dependency was relevant to his offending or that he has alcohol dependency disorder and notes that Ms Bostock in her expert opinion indicated that alcohol played a part in offending but that the Applicant does not have an alcohol dependency issue.
16. The Tribunal is of the view on the evidence before it that the Applicant has engaged in targeted rehabilitation course and notes that he has participated in rehabilitation courses such as ENGAGE but also in terms of his voluntary and long-term engagement in counselling and psychotherapy with Ms Gawronski.[11]
17. More importantly in his oral evidence to the Tribunal, the Applicant demonstrated that since his offending he has developed strategies and awareness to better identify stressors, and methods of dealing appropriately with them and managing social drinking.
18. The Tribunal accepts the Applicant's evidence that his conviction and the consequential cancellation and refusal of his visas and thereby uncertain migration status over the past five years have acted as significant deterrent to any such future conduct for which a criminal conviction could be recorded.
19. In terms of other evidence before the Tribunal in assessing the risk that the Applicant would in the future engage in criminal conduct the Tribunal considers the following.
20. The Applicant received a non-supervised (revised) 12-month Community correction Order and completed 100 hours of community.[12] The Sentencing assessment report by of Corrective Services NSW indicates that as of 6 October 2020 he was assessed as low risk for reoffending according to the Level of Service Inventory (LSI_R.).[13]
21. Both of these factors indicate that the risk of the Applicant engaging in future criminal conduct was assessed in October 2020 by the relevant authorities to be low. Whilst the low risk assessment and unsupervised community correction order are relevant to indicate a low risk of the Applicant engaging in future criminal conduct, they do not of themselves establish that the Applicant is no more than a remote or minimal risk of future criminal conduct.
22. The Applicant submits it is now five years since his past criminal conduct and he has not in that period of time engaged in criminal conduct. Relevantly in March 2025 the Applicant underwent a risk assessment by a Forensic Psychologist, Ms Bostock, who has provided to the Tribunal a detailed report of this assessment and who in her expert opinion has formed the view that the Applicant is a very low risk of engaging in future criminal conduct. In her oral evidence she suggested that the assessment of very low risk could be considered analogous to remote or minimal risk.[14]
23. As set out above the Applicant was placed as 0 on the LS/CMI score as very low risk of reoffending with 0-4 as the range for very low risk.[15] On the ODARA (Ontario Domestic Assault Risk Assessment) he scored a 1 representing a low risk of reoffending.[16]
24. The Tribunal places weight on the Expert Opinion of Ms Bostock oral evidence that the Applicant's risk of engaging in future criminal conduct is no more than a remote or minimal risk. The Respondent has not provided any countervailing opinion to that of Ms Bostock nor any submission to suggest that the Expert Opinion should be given little weight or disregarded.

1. In these circumstances, on all the evidence before it, the Tribunal is not satisfied that the Applicant fails the character test by operation of s 501(6) (d)(i) of the Act.

1. Pursuant to Section 105 (c) of the ART Act 2024 (Cth) the Tribunal sets aside the decision under review and remits the matter for reconsideration.

[1] 2025.04.16 Applicant's Statement of Facts, Issues and Contentions filed 3 April 2025 at [1].

[2] Section 501G 'G' Documents, G2, p. 23-37; Hearing Book, HB2, filed 3 April, 63.

[8] Migration Act 1958 (Cth) s 500.