CRNL v Minister for Immigration, Citizenship and Multicultural Affairs | Case summary | Zoe

CTHARTA

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs

austlii:cth/ARTA/2025/2652

ARTA|2025-07-30

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Source facts

Court

ARTA

Decision date

2025-07-30

Source

Original judgment source is linked above.

Judgment (196 paragraphs)

[1]

The Applicant, who was born in 1992, is a 32-year-old citizen of Sri Lanka. The Applicant first came to Australia on 12 July 2009 as an unauthorised maritime arrival when he was 16 years of age. He was granted a Subclass 866 Protection visa on 24 March 2010 and, subsequently, a Subclass 155 visa on 9 June 2018.
On 10 October 2024, the Applicant was convicted of 2 counts of Entering dwelling and commit, 3 counts of Fraud - Dishonestly Gain Benefit/Advantage and 1 count of Using carriage service to menace, harass or cause offence and other offences in relation to which he was sentenced to a head sentence of 2 years imprisonment (and a number of other sentences to be served concurrently), with a parole release date of 31 March 2025.[1]
On 9 December 2024, the Applicant's Subclass 155 visa was mandatorily cancelled pursuant to subsection 501(3A) on the basis that he had a substantial criminal record and, at the time of the decision, he was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or Territory (the original decision). The Applicant was notified of the cancellation decision and invited to make representations about revoking the original decision.[2]
On 12 December 2024, the Applicant requested revocation of the mandatory cancellation of his visa and made representations in that regard.[3]
On 7 May 2025, a delegate of the Minister decided not to revoke the mandatory cancellation of the Applicant's visa with that decision notified to the Applicant and a Statement of Reasons provided on the same date.[4] That is the reviewable decision before the Tribunal.
On 8 May 2025, the Applicant applied to the Administrative Review Tribunal (the Tribunal) seeking review of the reviewable decision.

[21]

(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 non-citizens 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 noncitizens 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.

[46]

The Respondent raised as a preliminary issue the regard that the Tribunal may have to previous offences where no conviction has been recovered. The Respondent relied upon the reasoning of Kiefel J in Hartwig v PE Hack [2007] FCA 1039 (Hartwig) and submitted that, while subsection 85ZR(2) of the Crimes Act 1914 (Cth_)_ (the Crimes Act) and subsection 12(3) of the Penalties and Sentences Act 1992 (Qld) (the PSA Act) both address the treatment of non-convictions, the provisions operate independently. It was submitted that the Commonwealth provision does not incorporate or rely upon state-based non-recording provisions such as subsection 12(3) of the PSA Act. In support of this distinction, the Respondent referred to the reasoning in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17, which held that the provisions of the Youth Justice Act 1992 (Qld) could engage subsection 85ZR(2) of the Crimes Act but distinguished the reasoning in Hartwig. In the present matter, there is no suggestion that the Applicant's non-convictions arose under the Youth Justice Act 1992. Accordingly, the Respondent submitted that the Tribunal is entitled to have full regard to the Applicant's non-convictions in assessing the matter and to have full regard to the underlying offending, notwithstanding that no convictions were recorded in respect of those matters.
The Applicant in their written reply submitted that a finding of guilt without a recorded conviction under section 12 of the PSA Act does not constitute a conviction for legal purposes, stating that this view was supported by R v Wickham (1988) 164 CLR 316, where the High Court distinguished between a finding of guilt and a formal conviction. The Applicant further submitted that courts have recognised that the absence of a recorded conviction must be properly considered in administrative and character-related decisions, an approach consistent with the rehabilitative objects underlying section 85ZR(2) of the Crimes Act which prohibits disclosure of a spent conviction. Accordingly, it was argued that a judicial discretion not to record a conviction should carry significant weight in decision making under the Act.
Having considered the parties' submissions and the relevant authorities, I accept that subsection 85ZR(2) of the Crimes Act is intended to operate broadly and applies in the context of this Tribunal's functions under the Act. I consider the reasoning adopted by Deputy President Burford in Heathcote v Minister for Immigration and Multicultural Affairs [2025] ARTA 131 to be persuasive. In that case, the Tribunal concluded that subsection 85ZR(2) of the Crimes Act requires full effect to be given to a State law under which a person is to be regarded, for any purpose, as never having been convicted of an offence, and that this includes for the purpose of determining whether a visa cancellation should be set aside under subsection 501CA(4). This reasoning in Heathcote appropriately applies the principles in Thornton and Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6. Although those cases involved juvenile offending, I am satisfied that subsection 85ZR(2) of the Crimes Act extends to offending generally where no conviction is recorded. I therefore adopt the approach taken in Heathcote, and in doing so, I have not had regard to any offending for which the Applicant was found guilty with no conviction recorded. In any event, I am satisfied that the nature of the conduct underlying those offences is of a minor nature that would weigh in my consideration. This conduct comprised relatively minor matters, such as contravening a direction, failing to appear and comparatively low-level conduct underlying stealing and unlawful possession charges, where the sentencing authority did not consider a conviction was warranted.
The circumstances of the charges dealt with by the Court on 10 October 2024 are referred to in paragraphs 27 and 30 of the Respondent's SFIC as including, based upon the Court Briefs of the Queensland Police Service, the Applicant sending numerous voice messages with threats including that the Applicant was going to rape the victim's wife and daughter, come to the victim's home and stab and kill him, sending hundreds of text messages to the victim, including sending multiple photos of a dilapidated female vagina to the victim and, further, entering the dwelling of a further victim and stealing their property on two occasions.
As regards the circumstances of the convictions against the Applicant on 10 October 2024, the sentencing remarks of Acting Magistrate Bain (the magistrate) included as follows:

[77]

At hearing, in response to questioning, the Applicant said that another friend also used his car and would leave their licence in his car, he didn't realise his licence was suspended and he just needed to get to work. When queried as to what he thought would happen when he used a false name to the police, he said he wasn't really thinking and he understands now he should not have done what he did.
Submissions on behalf of the Applicant,[13] included that whilst not excusing his conduct, the Applicant's actions were motivated by panic and fear, not malice or premeditation, demonstrating an emotional response rather than criminal intent.
The Respondent submitted that the Applicant's repeated traffic offences included not stop at red light, learner driver not display "L" plates as required, learner not accompanied by driver/police officer/tester and not give particulars to other drive_r are not any less serious merely because they are traffic offence and reveal not only a disregard for lawful authority in Australia but also a casual disregard for the safety and well-being of other road users, as recognised by Senior Member Tavoularis as relevant in relation to traffic offences in Bartlett and Minister for Immigration and Border Protection [2019] AATA 1561._
At hearing, the Applicant recognised the Respondent's submissions in relation to the traffic offending and noted that the traffic offences must not be trivialised but stated they did not involve injury, damage or high-range dangerous driving and noted that the Applicant has since taken steps to regularise his conduct and understand road safety obligations. It was submitted on behalf of the Applicant that the Direction does not elevate minor regulatory breaches to the same level as predatory criminal behaviour in the Applicant's circumstances. It was further submitted on behalf of the Applicant that the public safety risks posed by the infringements were situational, not systemic, and are not ongoing, as evidenced by the Applicant's now driving status and compliance post-release.

[107]

I have had regard to each of the subparagraphs in paragraph 8.1.1(1) of the Direction to the extent relevant.
The nature of the Applicant's conduct is as has been outlined in the preceding paragraphs.
The Respondent made various submissions in relation to the seriousness of the Applicant's conduct as regards each relevant paragraph of 8.1.1(1). The Respondent contended that the Applicant's history of offending ought to be viewed as serious offending, having regard to the 8.1.1(1) factors.[20] Further, as already noted, the Respondent submitted that the Applicant's offending is serious when viewed in isolation and especially serious when viewed cumulatively.[21]
The Applicant acknowledged that the Applicant's criminal history is concerning but submitted it must be evaluated in the context of his rehabilitation efforts and absence of further criminal history, matters I will address in turn.
As regards the nature and seriousness of the Applicant's conduct to date, I have outlined the nature of the conduct. I acknowledge the Applicant's evidence, and submissions, as to the background circumstances of the offending, including the Applicant's personal stressors at the relevant times. I further note the Applicant's account of how the carriage offence came about including the Applicant's and his brother's contention in evidence that the victim was the initial perpetrator of similar conduct towards the Applicant. Further, regarding the August and September 2023 offences, I acknowledge the Applicant's evidence in relation to the background circumstances, albeit that the Applicant's evidence was inconsistent and confusing at times as to what his intended purpose or understanding was in receiving the jewellery from his friend. Nonetheless I am unable to go behind the fact of the conviction for this offence, and having had regard to all matters, including the as relevant the various paragraphs of 8.1.1(1) of the Directions, I find that the Applicant's conduct to date is serious.

[113]

The Respondent submitted that the harm that would be caused to the Australian community should the Applicant continue to engage in offending of the same manner to be serious and could cause significant psychological and physical harm to victims and could cause the community to feel unsafe.[22] With respect to traffic offences, such continued conduct could place the safety of other road users at serious risk.
The Applicant stated that, while serious, the Applicant's past offences were non-violent and not of a predatory, sexual or systemic nature.[23] These submissions continued on to address the importance of considering the nature of the offending, and harm, in the context of risk, which I will address further on in these Reasons.
I accept that the harm to the individuals and the Australian community from the Applicant's offending and conduct to date has not, fortunately, been of a physical nature. However, this does not downplay the significance of psychological, emotional and other impacts. I am satisfied that the nature of the harm to individuals, should the Applicant engage in further conduct similar to that in his past, could nonetheless be significant. Further, although the Applicant's traffic offences to date have not resulted in physical harm to anyone, traffic rules by their nature exist for the safety and protection of individuals and the community and if breached, can, depending upon the circumstances, lead to possibly minor but also possibly catastrophic consequences.
I also observe that harm would also likely be occasioned to the Australian community if the Applicant engaged in further criminal or other conduct of the nature previously engaged in of a consequential nature, given the likely further demand upon police, legal and court resources, correctional facilities, parole and possibly other community resources.
Overall, I find that the nature of the harm which would be caused to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct of a similar nature to his past conduct to be significant and potentially, depending upon the circumstances, very significant.

[135]

The Respondent acknowledged the submissions of the Applicant as to risk, including but not limited to, for example, the Applicant's remorse, the wake-up call of being in jail, the reminders of obeying the law at each of his parole visits, his linking to psychology services and him awaiting rehabilitation courses, the obtaining of a drivers' licence, securing fulltime employment since his release in to the Australian community in May 2025 and the support of his brother, partner and employer.[27]
The Respondent further acknowledged that the Applicant was classified as a low security classification by Queensland Corrective Services effective 14 November 2024 but noted that the Applicant's Risk of Reoffending Prison Version (ROR-PV) score, assessed as part of that classification, was 8 such the Applicant posed a moderate risk of reoffending (although noted this did not consider the Applicant's risk of violent offences).
The Respondent's oral submissions noted that Ms Shea's report referred to the Applicant being under the influence of alcohol at the time of his offences and acknowledgement that his behaviours were wrong, whereas the Applicant's evidence at hearing provided a different set of circumstances. The Respondent submitted that the Applicant's cessation of alcohol had not been adequately tested in the Australian community. The Respondent further submitted that the protective factors outlined by Ms Shea did not adequately mitigate the Applicant's risk of reoffending in circumstances where the Applicant's evidence at different points in the hearing was, for example, that he had offended in the past when he was in stable employment, and yet that did not prevent previous offending. Further, the evidence was the Applicant had always had a close relationship with his brother, with his brother's evidence also being that he was aware of the Applicant's personal stresses at the time of the offending, and that did not prevent the Applicant from offending at the time. The Respondent further submitted that in circumstances where the Applicant's partner currently resides in Australia on a temporary basis, the level of support that she may be able to provide from overseas, where she is expected to return, might be limited. In this context of possible upcoming relationship stressors, a factor said to be relevant to the previous offending, it was submitted that the asserted protective factors should be afforded limited weight. It was also submitted that the Applicant had not demonstrated strategies to mitigate issues including difficulties with emotional regulation and impulsive behaviours.
The Respondent noted that the Applicant had continued to offend despite previous monitoring of misconduct when he was on parole in 2019 and submitted that the Tribunal cannot be satisfied that the Applicant's risk factors will be monitored on an ongoing basis.

[143]

I have addressed the parties' positions in relation to risk in reaching a conclusion as to likelihood of the Applicant engaging in further criminal conduct or other serious conduct, noting the overlap that can arise in discussion of 'likelihood' and 'risk'.
In addition, however, as regards risk, I invited both parties at the commencement of the hearing on 21 July 2025 to address the Tribunal as to the possible difference in risk assessment overall depending upon whether the reviewable decision is affirmed or set aside. It was not disputed that the Applicant had previously been granted a Protection visa on 24 March 2020, based on a finding that he was owed protection from Sri Lanka, his country of origin. As such, he is a person to whom NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37, 280 CLR 137 (NZYQ) applies. As a member of the NZYQ cohort, the Applicant would remain in the community for the foreseeable future regardless of the Tribunal's decision, due to constitutional constraints on detention established in NZYQ.
I discussed with the parties at hearing that if the reviewable decision is affirmed, the Applicant would remain the holder of a Class WR Bridging R Subclass 070 visa (a BVR), the visa he currently holds, with the conditions of that visa as advised to the Applicant (or similar) upon grant on 7 May 2025 and set out at pages 19 to 21 of Exhibit R2. If the reviewable decision is set aside, the Applicant would again be the holder of a Subclass 155 visa, on the basis as advised to the Applicant (or similar) upon grant on 9 June 2016 as set out at pages 254 to 256 of Exhibit R1. I invited the parties to make submissions based on those two possible eventualities.
I note that this approach has since been recognised as appropriate in the Federal Court case of DVRL v Minister for Immigration and Citizenship [2025] FCA 876 (DVRL), a decision handed down on 1 August 2025, which was after I made my decision in this matter on 30 July 2025 but prior to finalisation of my Reasons. DVRL had no part to play in my decision making, however I note that the approach I adopted and discussed with the parties is consistent with Bromich J's findings. In DVRL, the Honourable Justice acknowledged that Direction 110 was not specifically tailored to the NZYQ cohort but affirmed that the Tribunal was still required to assess risk in light of the Applicant's presence in the community regardless of visa outcome. DVRL distinguished the position from that arising in Mizen v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 84 (Mizen), noting that Mizen did not involve the NZYQ context, as visa refusal (or relevantly to this matter non-revocation of cancellation of the visa) typically results in immigration detention; whereas the applicant in DVRL, as would also be the case for the Applicant here, would remain in the community regardless of the outcome. It was held that the Tribunal was required to assess the relative risk between the two realistic outcomes. The applicant in DVRL, submitted before the Tribunal that being granted a protection visa would reduce his risk of reoffending by addressing his criminogenic needs, alleviating financial stress, improving financial stability and housing access, increasing opportunities for community integration and enhancing access to medical treatment. In contrast, it was argued that holding a BVR would increase his risk of reoffending due to factors such as financial hardship, heightened risk of homelessness, social isolation, limited access to health benefits and the impact of curfew and electronic monitoring conditions.[31]
In closing submissions on 22 July 2025, I asked the Respondent's representative if there was any difference to the assessment of risk in relation to the Applicant reoffending depending upon whether he was in the community as the holder of a BVR or a Subclass 155 visa. It was submitted that the additional conditions applicable to the BVR, including for example, monitoring of the Applicant's behaviour and requiring reporting as directed, would contribute to the ongoing assessment of the Applicant's good behaviour in the community but that otherwise the Respondent's representative had no submissions in relation to the issue.
Similarly, I invited the Applicant's representative to make submissions on the issue. The Applicant's representative noted that the Applicant, as the holder of a Subclass 155 visa, would continue to be subject to his current parole conditions until June 2026, not dissimilar to the protective benefits of the conditions of the BVR. It was further submitted on behalf of the Applicant that any greater control, for want of a better word, that might be afforded by the conditions on a BVR (as opposed to a Subclass 155 visa) would be offset by the protective benefit of the certainty that a Subclass 155 visa would give to the Applicant including in terms of his mental health. In that regard I note that Ms Skea in her report noted that acute risk factors that should be monitored to reduce the Applicant's risk of re-offending included disengagement from intervention, stability in relationships, finances and psychological functioning, and also alcohol consumption; factors that could be appropriately managed by court-ordered parole and psychological intervention.
There are limited submissions (and also limited evidence) before me as to the differences in risk between the Applicant being in the community as the holder of a BVR as opposed to being the holder of a Subclass 155 visa. Ms Skea detailed protective factors in relation to risk and addressed the risk of reoffending commenting on the value of court-ordered parole and psychological intervention as noted, but otherwise made no distinction between the situation as being the holder of either a BVR or a Subclass 155 visa.[32]
Absent any tangible evidence as to the difference in risk to the Australian community between the Applicant being in the community as the holder of a BVR compared to being the holder of a Subclass 155 visa, I am unable to find that there is a discernible difference.
I have cumulatively had regard to the nature of the harm to individuals or the Australian community, should the Applicant engage in further criminal or other serious conduct of a similar nature to his past conduct (which I have found is significant and possibly very significant), and the likelihood of the Applicant engaging in further criminal or other serious conduct (in circumstances where I have found that there is an least some likelihood of that occurring), in assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct. I consider there is a risk of future harm given the assessed possible likelihood of the Applicant engaging in further criminal or serious conduct. I consider that the risk to the Australian community, should the Applicant commit further offences on engage in other serious conduct, is both a real and significant risk.
The Respondent submitted that, overall, Primary consideration 1 ought to weigh heavily against revocation of the cancellation decision.[33]
The Applicant's submissions included that the primary consideration of protection of the Australian community weighs against cancellation of the Applicant's visa.[34] Upon clarification at hearing, and upon my questioning if, in making that submission, the Applicant was submitting that Primary consideration 1 weighed in the Applicant's favour, the Applicant's representative withdrew the submission and confirmed that whatever weight is against the Applicant on account of Primary consideration 1, the other relevant considerations weighed more heavily in the Applicant's favour. It was further submitted on behalf of the Applicant that, whilst it is acknowledged that the Applicant's offending has been serious and inappropriate, his conduct was non-violent and opportunistic and occurred during a period of psychological distress following which there has been acknowledgment of wrongdoing and service of a custodial sentence.
I have had regard to the relevant considerations in the Direction, as I have canvassed in the preceding paragraphs. I accept that the more stringent conditions attaching to a BVR, including reporting conditions, may afford some additional protection to the community, particularly as compared to the position of the Applicant on a permanent visa once parole conditions cease and, on that basis, find that Primary consideration 1 must weigh against revocation of the original decision to mandatorily cancel the Applicant's visa. However, absent evidence of a discernible and significant difference in risk between the Applicant being in the community as the holder of a BVR compared to a permanent visa, I only attach moderate weigh against revocation on the basis of this consideration.

[148]

Paragraph 8.3(1) of the Direction requires me to consider any impact of the decision on the Applicant's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
The Applicant's request for revocation, and a Schedule of the Applicant's immediate and extended family and network in Australia provided to the Tribunal, listed one immediate family member in Australia, the Applicant's brother, a permanent resident of Australia.
I am satisfied that the Applicant's older brother, who is approximately 4 years older than the Applicant, is the Applicant's only immediate family member in Australia, and that he is a permanent resident of Australia.
I had regard to the Applicant's brother's statement dated 4 June 2025 and his oral evidence at hearing. The Applicant and his brother both arrived in Australia as unauthorised maritime arrivals when the Applicant was aged 16, seeking protection in relation to their country of origin, Sri Lanka, with both subsequently being granted protection visas. The evidence is that they have not seen the remainder of their immediate family: their father, mother, sister and other brother, since their arrival in Australia and that the remainder of the family is now located in France. The Applicant's brother's evidence included that he has previously resided with the Applicant and has again resided with the Applicant since his release from imprisonment.[35] He stated that having his brother by his side made the transition to Australia a lot easier, that his brother is one of his strongest support systems in Australia with his brother being someone he can rely upon, his emergency contact (including for an admission to hospital in 2021), and also a financial support whenever required. The Applicant's brother's evidence further included that, having not seen the rest of his family since 2009, he essentially considers only his brother, the Applicant, as family and that he cannot imagine not being able to see him. He said in evidence that there are no words to describe what it would mean to him if his brother had to move from Australia.

[150]

As regards paragraph 8.3(2)(a) of the Direction, I must have regard to how long the Applicant has resided in Australia, including whether he arrived as a young child, noting that:
1. less weight should be given where the Applicant began offending soon after arriving in Australia; and
2. more weight should be given to time the non-citizen has spent contributing to the Australian community.
As the Applicant arrived in Australia as a child of 16, about to turn 17, and will soon turn 33, the Applicant has now been residing in Australia for nearly half of his life. His offending did not commence soon after his arrival and the evidence shows that the Applicant has been almost continuously gainfully employed during his adult years in Australia.
As regards paragraph 8.3(2)(b) of the Direction, I must have regard to 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.
As regards other family links, in addition to immediate family already canvassed, the Applicant initially referenced a permanent resident uncle as being another family member in Australia, however in oral submissions it was conceded that the Applicant did not have significant ties with that person (who it was suggested was not necessarily a blood relative). I have therefore not had regard to that person.
I note and accept the Applicant's evidence that he also has ties to the cricket and church communities in Australia.
I am satisfied based on the evidence that in addition to the impact of the decision on the Applicant's brother, the Applicant has long-standing social links to Australian, particularly as regards his employment, as evidenced by letters of support from his employer in evidence, but also as regards his cricket and church communities.
The Respondent accepts that a non-revocation decision would have a negative impact on the Applicant's brother, of an emotional and practical nature.[36]
The Applicant's submissions included that visa cancelation would adversely affect his biological brother who is a permanent resident of Australia and the loss of the Applicant would derive the brother of his only familial support network in Australia, causing substantial emotional harm and loss of critical practical assistance.[37] No evidence was led, or submissions made, despite invitation by the Tribunal, as to the difference in impact for the Applicant's brother of the Applicant being present in the Australian community as the holder of a BVR compared with being in the Australian community as the holder of a Subclass 155 visa. It therefore might be contended that there is minimal impact of that decision on the Applicant's only immediate family member in Australia. Although there is ostensibly little difference in impact to the Applicant's brother of the decision, given the Applicant's continuing presence in Australia for the foreseeable future as either the holder of a BVR or a Subclass 155 visa, I do however recognise that there would likely be some impact of continued uncertainty of the Applicant's migration status in Australia for the Applicant's brother. I accept this would be more heightened in the circumstances of the previous uncertainty of the Applicant and his brother following a tumultuous journey to Australia, their extended separation from any other immediate family, and their application for and grant of protection status. On this basis I am satisfied that Primary consideration 3 weighs moderately in favour of revoking the original decision to cancel the Applicant's visa.
The Applicant further submitted that, although remote, I should also have regard to the impact upon the Applicant's brother if there were a negative decision and the Applicant was to be removed from Australia in the future. It was submitted that, however remote, this circumstance remains a possibility if a negative decision is made for the Applicant. I acknowledge and accept that, although remote, this remains a possibility, however this does not change the weight I place upon this consideration.
I conclude that Primary consideration 3 weighs moderately in favour of revoking the original decision to cancel the Applicant's visa.

[162]

I recognise the matters raised by the Applicant in Reply and acknowledge that the Applicant has been living in the Australian community for almost half of his life; however, he has not lived in Australia for most of his life. I further note that, having arrived in Australia at the age of 16, the Applicant arrived at a young age but I do not find this to be a very young age.
I reject the factors raised by the Applicant such as 'the length and quality of the Applicant's residence, together with the degree of integration into the Australian community', having spent one's 'entire adult life' in Australia, notions of 'fairness, rehabilitation and second chances' and 'balancing of humanity consideration including the opportunity for reintegration' as being relevant to assessment of this consideration in the context of the expectations prescribed by paragraph 8.5 of Direction 110 or stated within paragraph 5.2 of the Direction. Neither paragraph raises these types of considerations. This does not mean that these factors are necessarily of no relevance; rather in my view they do not fall to be considered in relation to Primary consideration 5. I will instead have regard to these matters in the context of whether there are any other relevant considerations later in these Reasons.
Given that I have found the Applicant engaged in serious conduct in breach of Australian laws, I find that the Australian community would expect the Government not to allow such a non-citizen to remain in Australia. As previous noted, the Applicant is nonetheless, likely to remain in Australian for the foreseeable future, either as the holder of a BVR or a Subclass 155 visa. However, I do not consider that this outcome detracts from the Australian community's expectations outlined in paragraph 8.5 of the Direction. Even if the decision not to revoke the mandatory cancellation were affirmed, the Applicant would likely remain in the Australian community as the holder of BVR until removal from Australia is practicable within the reasonably foreseeable future, rather than being permitted to stay in Australia permanently as would occur if the cancellation were set aside.
The Applicant has not engaged in any offences of the kind that paragraph 8.5(2) of the Direction details. Nor has the offending caused physical harm to the Australian community, but notably paragraph 8.5(3) of the Direction provides that the expectations apply regardless of whether physical harm has been occasioned.
The Applicant has breached the Australian community's expectation that non-citizens obey Australian laws while in Australia. I have found that the Applicant engaged in serious conduct in breach of this expectation.
I find that the Australian community expects that the mandatory cancellation of the Applicant's visa is not revoked. I conclude that Primary consideration 5 weighs heavily against revocation of the original decision to mandatorily cancel the Applicant's visa.

[166]

As previously addressed, affirming the non-revocation of the mandatory cancellation of the Applicant's visa is likely to nonetheless result in the Applicant remaining in the Australian community for the reasonably foreseeable future as the holder of the BVR, until such time as his removal is practicable. At that point, he would be detained for removal. As noted by the Respondent, the Applicant was granted a protection visa on 24 March 2010.[41] Removal could only occur if future assessment determines that the Applicant is no longer a refugee and he can be removed to Sri Lanka or if arrangements are made by the government for his removal to a third country. The Respondent accepts that there is presently no real prospect of removal becoming practicable in the reasonably foreseeable future.[42]
If the Applicant were eventually to be removed, he would not be able to satisfy a necessary Special return criterion set out in Criterion 5001 of schedule 5 of the Migration Regulations 1994 thereby preventing the grant of most, if not all, visas permitting return to Australia. As removal is unlikely in the reasonably foreseeable future, the Applicant is expected to remain in the community as the holder of a BVR, subject to the conditions (or similar) as advised on grant on 7 May 2025 and set out at pages 19 to 21 of Exhibit R2.
Conversely, a decision to set aside the mandatory cancellation of the Applicant's visa has the legal consequence that the Applicant will be allowed to remain in Australia permanently as the holder of a permanent visa with a possible pathway to citizenship and subject only to the more limited conditions (or similar) attaching to that permanent visa, as advised upon grant on 9 June 2016 as set out at pages 254 to 256 of Exhibit R1. I further observe that, as the holder of a permanent visa, the Applicant may be able to sponsor certain other visa applications, noting that the Applicant's current partner is a citizen of Indonesia and there was at least some suggestion that the option of the Applicant being able to sponsor his partner's visa would be an important consideration for the Applicant and his partner.
The Respondent submitted that, given the possibility of the Applicant's removal from Australia in the circumstances being entirely remote and speculative, only nominal weight, if any, should be given to that possibility.[43]
The Applicant's submissions in relation to legal consequences centred around the harsh and disproportionate consequences for the Applicant of permanent removal from Australia, including the impediments faced upon removal, when weighed against the Applicant's 16 years of residence in Australia, positive engagement with protective authorities and positive steps taken towards rehabilitation.
The Applicant's oral submissions included that, however remote, there is still a possibility that the Applicant may be permanently removed from Australia which should be taken into account in affording weight in favour of the Applicant to Other consideration 1.
Having considered all matters, I am satisfied that the legal consequences of a negative decision for the Applicant are not insignificant, in that he will be subject to significantly more conditions as the holder of a BVR compared to the conditions to which he would be subject as the holder of a permanent visa. Whilst there was limited evidence of the exact differences, I accept that they include differences in the level of reporting and/or monitoring that may be required of the Applicant (particularly once his parole period ends), possible differences in access to some services and jobs and a difference as regards, for example, future citizenship and migration (including sponsoring others) options. I also recognise the possible differences to the mental health of the Applicant between being the holder of BVR and a permanent visa. Although remote, I further recognise the possibility of future permanent removal from Australia, if the Applicant was to remain the holder of a BVR.
The Respondent accepted that Other consideration 1 weighs to a moderate extent in favour of the Applicant.[44]
Having had regard to all matters, I find that Other consideration 1 weighs moderately in favour of revoking the original decision to cancel the Applicant's visa.

[170]

It was submitted by both parties that the Applicant, having been granted protection in relation to his home country of Sri Lanka, had no prospect of being returned to his home country. The Respondent therefore submitted that this consideration is not relevant.[45] However, there is at least some possibility that the Applicant's status as a refugee may be reassessed in the future and in event Direction 110 requires assessment of the extent of impediments the Applicant would face if removed to his home country taking into account his age and health, whether there are any substantial language or cultural barriers and any social, medical and/or economic support available to the Applicant in his home country.
The Applicant is a 32-year-old man with no apparent health issues. He previously resided in Sri Lanka until the age of 16. However, I am satisfied given his now extended absence from Sri Lanka, that there may be some language or cultural barriers if he returned. Further, I am satisfied there may be limited social, medical and/or economic support available to the Applicant in Sri Lanka, particularly given the evidence that none of his immediate family remain living in Sri Lanka. On that basis that the Direction requires consideration of these matters, notwithstanding the remote prospect of removal to the Applicant's home country occurring, I find that Other consideration 2 weighs minimally in favour of revoking the original decision to cancel the Applicant's visa.
Both parties made submissions in relation to the extent of impediments if removed elsewhere than to the Applicant's home country. Whilst those submissions were made in the context of Other consideration 2, as discussed at hearing, I do not consider the submissions relevant to Other consideration 2 as they do not relate to the Applicant's home country. Nevertheless, the submissions are still relevant matters, albeit not directly referable to any of the Considerations specified by Direction 110, and I will consider those submissions in that context later in these Reasons.

[172]

Paragraph 9.3 of the Direction requires me to consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Respondent in submissions acknowledged the letter of support provided by the Applicant's employer, which stated that the Applicant has been employed since 2021 as a bond cleaner for her company and that he is a hard-working and dedicated employee. The Respondent recognised that Other consideration 3 is capable of being engaged by any impact on Australian business interests (as recognised in QXNS v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1369) but submitted that any loss of the Applicant's employment by his employer could be remediated by the engagement of another employee and that the evidence does not demonstrate that the loss of the Applicant's employment would significantly compromise the delivery of a major project, or delivery of an important service.[46] It was therefore submitted that Other consideration 3 should be of neutral weight.
I note that two letters of support have been provided by the Applicant's employer, dated 15 January 2025[47] and 4 June 2025,[48] and note that the latter letter confirms re-employment of the Applicant after release from imprisonment in May 2025 and echoes previous comments as to the Applicant's honesty, professional attitude and performance and hard work. Whilst the letters attest to the Applicant's positive qualities as an employee, no mention is made as to the impact upon the business if the Applicant was not allowed to remain in Australia. Notably, as already canvassed, the Applicant will nonetheless remain in Australia for the reasonably foreseeable future in any event, either as the holder of a BVR or a permanent visa and given the Applicant's current employment as the holder of a BVR visa, it would appear that there would be no discernible difference from his employer's point of view as to which visa he holds.
I again recognise the possibility, albeit remote, of the Applicant's possible removal from Australia at some future point in time. However, balancing the remoteness of that possibility and the avenue of his employer to continue to operate by engaging another employee (as probably occurred during the Applicant's imprisonment), I am not satisfied that any weight should be afforded to this consideration and find that Other consideration 3 is of neutral weight in terms of a decision to revoke cancellation of the Applicant's visa.

[175]

As already canvassed, I do not consider these matters directly relevant to assessment of Primary consideration 5. I nonetheless recognise all of these matters.
Further, as already canvassed, a further consideration is the extent of impediments if the Applicant is removed to a third country. For the reasons I have canvassed earlier, this is not a relevant consideration in relation to Other consideration 2 but remains a relevant consideration generally and I have assessed the submissions of each party in that regard, ostensibly made in relation to Other consideration 2, as a further relevant consideration.
It was submitted on behalf of the Applicant that he would suffer substantial impediment if removed from Australia, because he and his brother will suffer significant emotional distress.[49] It was also submitted that the Applicant had become accustomed to life in Australia (living in Australia for over 16 years), and it is not clear at this point which country he might be resettled in if that did happen but that there is a risk of being exposed to substantial language or cultural barriers.[50] It was further submitted that the Applicant faces significant and disproportional hardship if removed, including the absence of support networks overseas, risk of homelessness and marginalisation, and severe psychological harm from family separation.[51]
The Respondent submitted that no third country has been identified as a potential recipient country for the Applicant such that the Tribunal is not able to make an informed view on the possible extent of impediments the Applicant may face if removed to a hypothetical third country. The Respondent therefore submitted that this ought to be afforded neutral weight.
I accept that there is only a remote possibility that the Applicant will be removed from Australia. Nonetheless it cannot be said that there is no such possibility. I further accept that the Applicant may face significant impediments if removed to a third country, including possibly having no support system in the country, the severance of ties, at least to some extent, with his brother and others in Australia, the risk of unemployment and marginalisation, possible language and cultural barriers and other related issues. Although remote, given this is a possibility, I nonetheless accept and recognise the possibility of these and other related impediments.
I have had regard to all of the future considerations noted and together conclude that some weight, albeit minimal, should be given to other identified further considerations in favour of the Applicant.

[182]

The Respondent in written submissions contended that, to the extent that Primary consideration 3 and any of the Other considerations are found to weigh in favour of the Applicant, they are outweighed by Primary considerations 1 and 5.[56]
I have had regard to the eight principles set out in paragraph 5.2 of the Direction and note that the safety of the Australian Community is the highest priority of the Australian Government. I have had regard to clause 7 of the Direction and have taken into account that Primary consideration 1 (protection of the Australian community) is generally to be given more weight than other primary considerations and that, otherwise, primary considerations should generally be given greater weight than other considerations and that one or more primary considerations may outweigh other primary considerations. I note that the process of assigning greater weight to Primary consideration 1 over the other primary considerations does not require me to automatically assign greater weight to Primary consideration 1 and that the other primary considerations can in fact be given greater weight than Primary consideration 1. I also note that the weight to be attributed to considerations is a matter for the decision-maker and requires that the individual facts and circumstances of the case be taken into account.
I have weighed and balanced the various Primary and Other considerations outlined in the Direction and other relevant considerations against each other. I find that the Primary consideration of the Applicant's ties to Australia, the Other consideration of legal consequences of the decision and the other relevant considerations combine to outweigh the protection of the Australian community and the expectations of the Australian community.
It follows that I am satisfied that there is another reason why the original decision should be revoked such that subparagraph 501CA(4)(b)(ii) is met. I have previously found earlier in these Reasons that subparagraph 501CA(4)(a) is met. It follows that subsection 501CA(4) is met overall and the original decision not to revoke the mandatory cancellation of the Applicant's visa is set aside and revoked pursuant to subsection 501CA(4).

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs

At a glance

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Decision date

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Judgment (196 paragraphs)

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Legislation Cited (3)

Cases Cited (20)

VQJD and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2652 (30 July 2025)