1. After a series of brief visits in 2003 and 2009, Mr Felstead travelled to Australia on a working holiday visa in February 2012.[6]
2. In 2014, he held a student visa and was completing a carpentry apprenticeship in Perth.[7] During this period, he met an Australian citizen, Ms J, and they commenced an intimate relationship.[8] They have three children: Master JR (9), Master JV (7) and Master HJ (3).[9]
3. In July 2016, Mr Felstead made application for a partner visa, with Ms J as his sponsor.[10] He was granted a temporary partner visa on 10 January 2017.[11]
4. The temporary partner visa was cancelled by a delegate of the Minister on 16 March 2021 under s 116(1) of the Migration Act due to the Applicant's conviction for arson in August 2020.[12]
5. A delegate of the Minister refused to grant Mr Felstead the permanent partner visa on 13 October 2022 because he did not hold a temporary partner visa, which is, for all intents and purposes, a mandatory criterion for the grant of that visa.[13]
6. The Applicant sought review of the permanent partner visa refusal in the former Administrative Appeals Tribunal on 1 November 2022. This Tribunal (differently constituted) must now finalise that review in a manner that it considers is efficient and fair (the Part 5 review).[14]
7. The Part 5 review was constituted in May 2025 and is part-heard by General Member Judd. The Tribunal adjourned the substantive hearing of that application pending the determination of this Part 9 review, given that I am required, by force of s 500(6L) of the Migration Act, to determine this application by 15 October 2025.
8. The Applicant was granted a related bridging visa C in August 2016, but this was also cancelled under s 116(1) of the Migration Act, in November 2024, due to the Applicant's criminal history.[15]
9. The Tribunal was told by the Minister's counsel on 9 October 2025 that there was an issue with the notification given to the Applicant under s 127 of the Migration Act regarding both visa cancellation decisions. However, any failure to give proper notification under that section does not affect the validity of the cancellation decisions.[16]
10. The Applicant was detained under s 189(1) of the Migration Act on 17 April 2025 and is presently being held at Yongah Hill Immigration Detention Centre.[17]
11. On 27 April 2025, Mr Felstead made application for the BVE online and as a self-registered user.[18] In that application, he falsely declared that he did not have a criminal record. However, that dishonesty is of no real moment.
12. On 29 May 2025, the delegate sent the Applicant a notice of intention to consider refusal of his BVE under s 501(1) of the Migration Act (NOICR).[19]
13. Following that NOICR, the Applicant engaged a legal practitioner to represent him in respect of both the BVE application and the Part 5 review (in the later respect, from 16 June 2025).[20] The practitioner, Ms Rosa Maghsoodi Nobarani of Zest Legal, provided undated written submissions to the delegate.[21]
14. The delegate decided to exercise the discretion to refuse to grant the BVE under s 501(1) of the Migration Act on 14 July 2025.[22]
15. The Applicant was notified of the delegate's decision by email sent to Ms Maghsoodi Nobarani on 23 July 2025.[23]
16. On 1 August 2025, the Applicant, through Ms Maghsoodi Nobarani, sought review of the delegate's decision under s 500(1)(b) of the Migration Act.[24]
17. The Tribunal held a case management hearing on 21 August 2025, where it programmed the matter to a substantive hearing on 6 October 2025 with a potential second day on 9 October 2025.
18. The Tribunal was told by the Applicant on 6 October 2025, when it enquired about the absence of any evidential material sought to be relied upon by the Applicant (beyond that provided to the delegate), that the Applicant had been advised by his lawyer not to worry about this application and to focus upon the Part 5 review. The Tribunal explained the nature of this proceeding and its potential significance for his migration status. It also identified relevant material in the parties' possession which had not been included in the Joint Hearing Book, which it intended to rely upon. The Applicant adduced further evidence on 9 October 2025 and was invited to address the Tribunal on each of the relevant factors for consideration.
19. The Tribunal notes that the written submissions drafted by Ms Maghsoodi Nobarani demonstrate a complete failure to grapple with the terms of the Migration Act and the Applicant's circumstances. They are factually misleading in several respects. The practitioner ceased to act for the Applicant in this application (but not the Part 5 review) on 18 August 2025. Accordingly, the Tribunal did not decide whether it was necessary to refer her conduct to the Legal Practice Board of Western Australia. However, the Tribunal would reiterate that legal practitioners have a duty to deliver legal services competently,[25] and that they should not accept instructions to act in this highly technical and complex area of the law unless they have some familiarity with it.

1. The parties appeared before the Tribunal on 6 and 9 October 2025. The Applicant was self- represented. The Respondent was represented by Mr Lucas Roosendaal of Sparke Helmore Lawyers.
2. The following documents were marked as exhibits:

(a) Joint Hearing Bundle, including the parties' written submissions (342 pages) (Exhibit 1); > > (b) Extract of the database containing information kept for the purposes of the Migration Act in relation to the entry of persons into, and departure of persons from, Australia (movement records) relevant to the Applicant dated 8 May 2025 (five pages) (Exhibit 2); > > (c) History for Court - Criminal and Traffic dated 26 August 2025 (four pages) (Exhibit 3); > > (d) Police Certificate for Immigration Purposes (UK) dated 21 September 2016 (two pages) (Exhibit 4); > > (e) Indictment, State of Western Australia v Kieran James Felstead (District Court of Western Australia, GER 110 of 2019, 13 January 2020) (Exhibit 5); > > (f) Amended Statement of Material Facts, State of Western Australia v Kieran James Felstead (District Court of Western Australia, GER 110 of 2019, 13 January 2020) (Exhibit 6); > > (g) Transcript of Proceedings, State of Western Australia v Kieran James Felstead (District Court of Western Australia, GER 110 of 2019, 28 November 2019, 29 November 2019, 17 January 2020, 3 February 2020, 1 May 2020, 11 August 2020) (28 pages) (Exhibit 7); > > (h) Certificate of Final Outcome of Charge, State of Western Australia v Kieran James Felstead (District Court of Western Australia, GER 110 of 2019, 11 August 2020) (Exhibit 8); > > (i) Conditional Suspended Imprisonment Order, State of Western Australia v Kieran James Felstead (District Court of Western Australia, GER 110 of 2019, 11 August 2020) (two pages) (Exhibit 9); > > (j) Application for migration to Australia by a partner dated 11 July 2016 (27 pages) (Exhibit 10); > > (k) Notification of cancellation of temporary partner visa under s 116 of the Migration Act dated 16 March 2021 (10 pages) (Exhibit 11); > > (l) Decision record for partner visa refusal dated 13 October 2022 (36 pages) (Exhibit 12); > > (m) Notification of cancellation of bridging visa C dated 25 November 2024 (21 pages) (Exhibit 13); > > (n) Extract from the Department of Home Affairs' Case Management and Detention Portal (CCMD), confirming the Applicant's detention from 17 April 2025 (Exhibit 14); > > (o) Movement records for the Applicant's mother dated 26 August 2025 (Exhibit 15); > > (p) Undated and unsigned letter from Mr Connar Tottman (Exhibit 16); and > > (q) Bundle of photographs (Exhibit 17).

3. At the substantive hearing of the review, the Applicant was advised, in simple terms, of his right to invoke the privilege against self-incrimination prior to his giving evidence.[26]
4. The Tribunal took oral evidence from the Applicant, his mother, step-father and Ms J.
5. The Minister filed and served written submissions on the legal consequences of the Tribunal's decision on 14 October 2025.

1. The question for determination by the Tribunal is whether the decision to refuse to grant the Applicant a BVE is the 'correct or preferable' decision on the material before the Tribunal.[27]
2. In reviewing decisions of this kind, the Tribunal must comply with Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction)[28] given by the Minister under s 499(1) of the Migration Act.[29] This is a legislative constraint on the Tribunal's process of reasoning.[30] However, as the Full Court identified in Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46; (2023) 296 FCR 582,[31] the principles stated in Drake (No 2)[32] regarding the application of governmental policy, and the Tribunal's ability to depart from it where appropriate remain applicable.
3. The Direction indicates, at cl 5.1(2), the trite proposition that the Tribunal must consider the specific circumstances of the case in deciding whether to exercise the discretion to refuse to grant the visa.
4. Informed by the principles set out in cl 5.2 of the Direction, the Tribunal must 'take into account' the factors identified in cls 8 and 9 of the Direction (where relevant) in deciding the application.[33] In this review, those relevant factors are:

(a) the protection of the Australian community from criminal or other serious conduct; > > (b) whether the conduct engaged in constituted family violence; > > (c) the strength, nature and duration of ties to Australia; > > (d) the best interests of minor children in Australia; > > (e) the expectations of the Australian community; > > (f) the legal consequences of the decision; and > > (g) the extent of impediments if removed.

1. The Tribunal must decide whether the Applicant passes the character test as defined by s 501 of the Migration Act.[34] Failure to pass the character test arises as a matter of law.[35]
2. Section 501(6)(a) of the Migration Act sets out that a person does not pass the character test if 'the person has a substantial criminal record (as defined by subsection (7))'.[36] The term 'substantial criminal record' includes when 'the person has been sentenced to a term of imprisonment of 12 months or more_'_[37] and when they have been 'sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more'.[38]
3. The Applicant was sentenced to 9 months' imprisonment (conditionally suspended for 9 months) by the District Court of Western Australia on 11 August 2020,[39] and 7 months' imprisonment (conditionally suspended for 12 months) by the Magistrates Court of Western Australia on 11 October 2022.[40]
4. The Tribunal finds that Mr Felstead does not pass the character test because he has a 'substantial criminal record' as defined in s 501(6)(a), read with s 501(7)(d), of the Migration Act.
5. The Tribunal is therefore satisfied that the discretion to refuse to grant the BVE is enlivened.

1. The Tribunal is required to consider whether the Australian community requires protection from harm said to have arisen from the criminal activity or other serious conduct engaged in by the Applicant to date, and from any risk of such harm arising in the future.[41] This is a two-stage process, requiring consideration of both the nature and seriousness of conduct to date, and the risk to the community if further offences are committed or the Applicant engages in other serious conduct.[42]
2. It should be noted at this juncture that the Tribunal is not sentencing Mr Felstead for his past deeds. That has already happened. Rather, the Tribunal must assess whether the Applicant's 'continued presence here would be opposed to the safety and welfare of the nation'.[43]
3. The concept of 'risk', and whether it is 'unacceptable', under cl 8.1 of the Direction is not the same thing as the 'likelihood of the non-citizen engaging in further criminal or other serious conduct'.[44] For this purpose, an 'unacceptable risk' is a risk which the Tribunal considers to be 'unacceptable' having regard to a variety of considerations, including:

(a) the nature and seriousness of the Applicant's criminal offending and other conduct to date (including the sentences imposed by the courts for a crime or crimes); > > (b) the likelihood of the Applicant engaging in further criminal or other serious conduct; and > > (c) the nature of the harm that could be caused by further offending.

4. In the context of the discretionary refusal of a BVE, the Tribunal must consider whether the risk of harm may be affected by the duration and purpose of the visa, the conditions that may apply to it and whether there are strong or compassionate reasons for granting the temporary visa.[45]
5. The Direction informs the Tribunal's risk assessment, at cls 5.2, 8.1(1), 8.1.1(1) and 8.1.2(1), by reiterating, amongst other things, that the Executive Government:

(a) is committed to 'protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens'; > > (b) considers identified types of conduct to be 'very serious' or 'serious'; and > > (c) considers that 'the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.'

6. It follows that the 'risk' referred to in the balancing exercise contemplated by those clauses of the Direction is not any risk that an applicant may commit further criminal or other serious conduct but is calibrated towards the Tribunal's assessment of the nature and degree of the harm said to be in prospect in the case at hand.

Nature and seriousness of the conduct to date

1. The Tribunal is required to assess for itself the nature and seriousness of an applicant's conduct to date, and the weight which should be attributed to this factor.[46]
2. The Applicant's criminal history is set out in Exhibit 3. It ranges between November 2018 and December 2024. The Applicant has a traffic infringement history between 2012 and 2019, which is generally for speeding but there is one infringement for driving under the influence of alcohol in January 2015.[47]
3. There is a juvenile history from the UK but that is of no real moment.[48]
4. The Applicant's criminal history primarily consists of drug, traffic and property offences. The offences of real seriousness are his convictions for criminal damage by fire (arson) committed in July 2019 and aggravated assault occasioning bodily harm committed in June 2022, for which he received the two CSIOs. There was also a concerning return to offending last year, including driving under the influence of methylamphetamine and cannabis,[49] and shoplifting from Big W.[50]
5. The Applicant was in State custody between 10 July 2019 and 8 August 2019, and between 29 November 2019 and 3 February 2020.[51]
6. The arson involved setting fire to a stolen vehicle on the beach. Judge Gillan in the District Court in August 2020 referred to the Applicant's long and entrenched history of cannabis use from a young age, the initial breakdown of his relationship leading to methylamphetamine use and the fact that his criminal history was consistent with that use.[52] The Applicant was reported to have poor emotional regulation and a poor attitude towards authority.[53] He had been on a pre-sentence order prior to sentence and her Honour was prepared to suspend conditionally suspend the order of imprisonment with programme and supervision requirements.
7. Magistrate Mahon dealt with the aggravated assault occasioning bodily harm in October 2022.[54] His Honour considered the offending to be serious, and the Tribunal notes that it involved actual violence to Ms J, including keys into the face and punching to the ribs. His Honour was nevertheless prepared to conditionally suspend the imprisonment order, primarily on the basis that the Applicant was not 'habitually violent' and that he had work to do in the form of family violence counselling and alcohol and drug counselling.
8. The Direction identifies at cl 8.1.1(1)(a) that the Australian Government and the Australian community views acts of family violence as very serious. The Tribunal agrees with that assessment. The Applicant engaged in a serious example of family violence in June 2022. It was clear that this offence had an impact on Ms J, as well as their children and extended family. Nevertheless, Ms J remains supportive of the Applicant, and they have been back together for a couple of years without reported further acts of family violence. The Tribunal was told, and accepts, that excessive alcohol consumption was a contributing factor.
9. The Minister sought to make something of the Applicant's conviction for obstructing police officers in March 2022.[55] However, the Statement of Material Facts for this charge indicates that it relates to the Applicant refusing to let go of cannabis in his hand, and being generally uncooperative, as the police conducted a warrantless search of his house.[56] After he was handcuffed because of that resistance, the Applicant is reported to have lashed out with his right leg in a motion towards an officer. There was no contact. He was restrained and then released after he calmed down. 'Obstruct' is defined in s 172(1) of the Criminal Code (WA) to include 'prevent, to hinder and to resist'. It is clear from the facts that the Applicant was resisting the seizure of the cannabis in his possession and the police officers' directions as to where he stand whilst they were searching the house. The Tribunal does not consider this to be a serious example of conduct against public officials in the performance of their duties.
10. The Applicant has generally received financial penalties for his conduct to date. As at 25 August 2025, he owes the State over $5,000 in unpaid fines.[57] He did cut out some of his previous debts whilst in prison in early 2020.[58]
11. The Applicant's criminal offending was frequent between November 2018 and July 2019, with further offences committed in March 2022, June 2022, April 2024 and December 2024. The conduct to date is cumulatively significant (including when considered with the traffic history, which dates to November 2012).
12. There has been repeated provision of false and misleading information to the Department regarding the Applicant's criminal history. However, the Tribunal is satisfied that this was not sophisticated dishonesty, and that the Applicant primarily relies on his relatives to complete paperwork.
13. For the above reasons, the Tribunal finds the nature and seriousness of the Applicant's criminal offending and other serious conduct to date to be serious.

Risk to the Australian community should the Applicant engage in further conduct

1. The Tribunal is required to have regard to the future risk that may be posed by the Applicant to the Australian community by considering, cumulatively, the nature of the harm to individuals or to the community should the Applicant engage in further criminal or other serious conduct, and the likelihood of the Applicant engaging in such conduct.[59]
2. There is no statutory constraint on the way that risk is assessed by the Tribunal other than that there must be a rational and probative basis for the assessment.[60]
3. The BVE, if granted, will be in effect until the Applicant is granted the permanent partner visa or 35 days after the Tribunal makes its decision on that Part 5 review.[61] The Minister has discretion to impose a series of visa conditions.[62] The Tribunal has made recommendations about those potential visa conditions above.

Nature of harm to individuals or the community should the Applicant engage in further criminal or other serious conduct

1. The Minister identified the 'very serious' nature of further violent conduct being repeated by the Applicant,[63] and submitted that any risk of its repetition was 'unacceptable'.[64]
2. Turning to the Applicant's property offences, the Tribunal accepts that the assessment of the seriousness of such conduct does not involve a singular focus on the amount stolen, and that attention must be given to all of the relevant facts and circumstances, including the reasons for the offending, the use to which the offender puts what has been stolen, the effect of the offending on the victim and whether the offending involved a breach of trust.[65] The harm that can be caused by such conduct is fact dependent. The primary victims of the Applicant's theft in the past were commercial businesses such as Big W and several service stations. The harm caused in those circumstances was relatively low-level economic harm. The harm associated with further offending of that kind has similar potential.
3. Turning to harm caused by driving under the influence of alcohol or drugs, in RQRP v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 266, McKerracher J observed that:

[48] It may also be accepted that there is a degree of separation in the committing of certain offences between the criminal act and any potential harm. Such offences encapsulate conduct that does not necessarily require an element of harm to another person to attract criminal sanction and can be distinguished from other crimes such as those involving direct violence where the harm arises immediately upon the doing of the act. It is clear that child pornography and drink-driving offences fall into the former category. However the critical feature of these acts is that they attract criminal sanction because committing them creates a greater risk that much more serious conduct that does cause direct and significant harm could result. ... In the case of drink-driving, the act poses an unacceptable risk to the life and wellbeing of other road users.

4. Like the harm associated with drink driving, arson has varying potential for harm, particularly in Western Australia's largely arid and Mediterranean climate. The seriousness of arson is reflected by the maximum available penalty of life imprisonment.[66] The Court of Appeal have indicated that 'among the considerations relevant to the seriousness of an arson offence is the motive with which the offence was committed, the extent of the damage caused by the offence, the extent to which the offence endangered human life, and the nature of the property damaged.'[67] In July 2019, the Applicant stole a hire vehicle from a relative and then set fire to it on the beach.[68] The fire was spotted and reported to the authorities and the Applicant detained nearby.[69] There is clearly an unknown backstory to this offence. However, repetition has similar potential for harm to property and to life.
5. The National Domestic and Family Violence Bench Book (August 2025) indicates that actual or threatened physical violence or harm is among the range of behaviours that characterise domestic and family violence ([3.1.1]). Nearly one quarter of women report experiencing violence by an intimate partner. It is noted in this section of the Bench Book that:

A perpetrator may intend to intimidate and induce fear in the victim through physical violence or harm yet cause minor or no visible signs of injury on the victim's body. Victims may be kicked, slapped, bitten, or punched with a fist. They may be pushed, grabbed, or have their arm twisted or hair pulled. They may be hit with an object or have an object thrown at them. They may be burned or scalded, or threatened with a gun, knife or other weapon. The perpetrator may strangle or suffocate them. (Note that non-fatal strangulation may cause a brain injury due to lack of oxygen to the brain). The perpetrator may drive dangerously when the victim or children are passengers in the car, or smoke in the home knowing the victim has a respiratory condition, or lock the victim outside the house during the night. > > A perpetrator may also commit physical violence or harm in ways that are intended to cause obvious or serious physical injury or death. A number of factors may increase a victim's risk where: > > • the perpetrator displays generally high levels of aggression, and patterns of controlling and emotionally abusive behaviour (sometimes identified as coercive control) towards the victim > > • the perpetrator misuses alcohol or drugs > > • there are multiple episodes of physical violence or harm experienced by the victim or family members > > • the victim's children are exposed to physical violence or harm > > • the perpetrator strangles the victim > > • the victim fears their life is endangered > > • the victim is aged between 18 and 24 years. > > Domestic and family violence may affect the victim's physical health and functioning in acute and chronic ways, even after the violence has stopped. Apart from direct physical injuries, including traumatic brain injury, victims may experience a range of chronic health conditions for example, muscular and joint pain, headache, stomach cramping, vaginal bleeding and pain during sexual intercourse, heart failure, asthma, poor hearing and sight, allergies, malnutrition, hair loss and fatigue. These symptoms may also be mediated through a victim's experience of high levels of stress, reduced healthy behaviours, and limited agency in making healthy lifestyle choices. In addition, domestic and family violence may disrupt a victim's cognitive faculties for processing and coping with trauma resulting in a sense of personal failure and loss of control over their life situation, which may, over time, contribute to mental ill health. > > Physical violence and harm may be one aspect of a complex pattern of behaviours engaged in by perpetrators in order to control another person, sometimes referred to as coercive control.

6. It follows from the above, that the nature of potential harm should the Applicant engage in further criminal or other serious conduct is variable and serious.

Likelihood of engaging in further criminal or other serious conduct

1. There was no current risk assessment before the Tribunal.
2. Gillan DCJ referred to both a psychological pre-sentence report, and pre-sentence report, in her Honour's sentencing remarks, where the point was made that the Applicant was 'at the lower end for fire-based offences, but they both noted that really how [he goes] forward depends on how [he] cope[s] with the things that have happened to [him] in the past.'[70]
3. It can also be inferred that Magistrate Mahon took the view that there was a relatively low risk of re-offending, in a violent manner, subject to completion of family violence and drug & alcohol counselling.
4. The Applicant was assessed for engagement in the 'Connect and Respect' family and domestic violence programme on 24 November 2022.[71] He completed that programme between 8 February 2023 and 10 May 2023.[72] At that stage, the Applicant and Ms J had resumed their relationship and were reported to be 'in a good, happy place' albeit not one without some risk.[73] Mr Felstead was concurrently attending drug and alcohol counselling.[74] The programme facilitators considered him to be an active and engaged participant.[75] The Tribunal notes the contents of their assessment at Exhibit 1, pp 333-139. Their Summary and Recommendations was as follows:

[Mr Felstead's] treatment needs were identified at the time of this assessment and were as follows; increasing perspective taking, developing accountability and responsibility taking skills, understanding FDV and its impacts towards his children and his partner's cousin, developing assertive communication and safe conflict resolution skills, increasing consequential thinking skills, addressing issues surrounding jealousy and his use of power and control, increasing emotional awareness and developing regulation skills. > > Mr Felstead's ongoing issues with alcohol consumption and drug use presents as high-risk behaviours which may lead Mr Felstead to re-engage with abusive behaviours. His routine of finishing work with colleagues and consuming alcohol together presents as a high-risk behaviour; Mr Felstead is aware that this is a potential risk for his family and is an unhelpful coping strategy to deal with the stress of his perceived financial issues. > > Mr Felstead would be considered as having made gains within the areas of increasing perspective taking, understanding FDV and its impacts on his partner and children, increasing consequential thinking skills, developing safe conflict resolution skills, addressing issues surrounding jealousy and his use of power and control, increasing emotion awareness, and developing emotion regulation skills. > > Mr Felstead would benefit from continued engagement with AOD counselling, engaging in personal therapy and engagement with a similar community-based program to address the outstanding treatment needs of developing assertive communication skills and developing accountability and responsibility taking skills.[76]

5. The Tribunal does consider that the Applicant has outstanding treatment needs, which appear to stem from childhood trauma and long-standing illicit substance use. This is reflected in the assessment quoted above.
6. The Applicant has the capacity to live a law-abiding life, which is indicated by his successful completion of a carpentry apprenticeship and by periods where he has not engaged in criminal conduct (though his traffic record confirms the consistent theme of a general disregard for the law).
7. The Applicant told the Tribunal that he had been sober since he was detained in April 2025. There is no evidence to the contrary. Moreover, it was clear to the Tribunal that the Applicant appreciated the consequences of further criminal or other serious conduct on his ability to remain in this country, and his ability to be with his three children and partner. The Applicant is pursuing the right to remain here in the Part 5 review.
8. The Tribunal put to the Applicant the potential visa conditions that may be imposed on a BVE and considers that he will likely comply with the conditions that it recommends be imposed. Of course, if he does not comply with them, the bridging visa could be cancelled.
9. For the above reasons, the Tribunal considers that there is an appreciable likelihood of re-offending. It is not able to properly quantify it. However, it must be said that it has been reduced by the Applicant's completion of programmatic intervention and his abstinence from alcohol or drugs. However, in the Tribunal's view it is more than a remote possibility.

Conclusion on protection of the Australian community

1. The Tribunal finds the Applicant to pose a risk to the Australian community. It has found that:

(a) Mr Felstead has engaged in criminal and other serious conduct which should be viewed as serious; > > (b) The risk of harm associated with further conduct of that kind is variable and potentially very serious; > > (c) Mr Felstead poses an appreciable risk of re-offending notwithstanding that he has participated in programmatic intervention and has been sober since April 2025.

2. The question that arises then is whether that risk is 'unacceptable'?
3. The Minister argued that it was. However, the Tribunal considers that the risk is moderated by the potential conditions of the BVE, which will only be in force for a short period of time (pending the outcome of the Part 5 review). It considers that the Applicant will likely comply with the visa conditions, and that the community can be protected by cancellation under the general cancellation power (found in s 116 of the Migration Act) if he does not.
4. There are strong or compassionate reasons for granting the BVE pending that outcome. Those compassionate reasons remain notwithstanding the view the Tribunal takes about the prospects of success in that application (discussed below).
5. For those reasons, the Tribunal finds that this primary consideration weights in favour of refusal but not determinatively.

Whether the conduct engaged in constituted family violence

1. The Minister endorsed the Tribunal's summary of principles in Re MBBG and Minister for Immigration and Multicultural Affairs [2025] ARTA 53 at [80]-[86].
2. This consideration is relevant because of the Applicant's conviction for aggravated assault occasioning bodily harm in respect of Ms J.
3. The Minister separately raised a police incident report from 22 April 2015 as being relevant (Incident 220415 1530 15439).[77] The Applicant and Ms J were not cross-examined on this incident report. That was a forensic choice properly made by the Minister's counsel, though he continued to rely on this report as being relevant in closing submissions. The report refers to a member of the public notifying police of witnessing a male assaulting a female on the street. Police then attended and found the Applicant and Ms J, who each denied the reported assault occurred. Police record that they did not observe any visible injuries or marks on Ms J which would coincide with the reported assault. It is recorded that Ms J's appearance and demeanour did not suggest that she had been the victim of a violent incident and that she did not appear to be in fear of the Applicant. It was noted that a police order was considered but in the absence of corroborative evidence it did not issue. The Tribunal is not satisfied that this incident report constitutes information or evidence from an independent source indicative of the Applicant's involvement in the perpetration of family violence. Moreover, it adds nothing to the Applicant's more recent conviction for conduct of that kind.
4. The Tribunal notes that there was other material before the Tribunal suggestive of prior acts of family violence with a former partner, including the grant of a restraining orders which have been revoked or expired.[78] The Applicant was not cross-examined on these records. They were however referred to in the Minister's Statement of Facts, Issues and Contentions. In the absence of cogent evidence about those reported events, these records added little to the assessment of the seriousness of the Applicant's prior family violence.
5. In assessing the seriousness of the family violence engaged in by Mr Felstead, the Tribunal notes that it appears to have been a one-off incident, committed three years ago and that the Applicant has participated in family violence counselling (described above). As the authors of the various reports note, the Applicant does not completely accept responsibility for his conduct. However, he has made some treatment gains and the conduct has not been repeated. He remains in a committed relationship with the victim.
6. The Government's concerns about conferring the privilege of being in the Australian community on the Applicant as a perpetrator of family violence are engaged. His prior family violence was serious. However, those concerns are moderated by the nature of this visa and the rehabilitation achieved to date. This consideration weighs in favour of refusal but not determinatively.

Strength, nature and duration of ties to Australia

1. The Tribunal is required to consider any impact of the decision on the Applicant's immediate family members in Australia.[79]
2. The Applicant's 'immediate family members'[80] comprise:

(a) His partner, Ms J; > > (b) His three sons; and > > (c) His mother and step-father.

3. Each of these family members are Australian citizens.
4. Ms J presently lives in Perth with two of their sons. She is currently studying. The middle child, Master JV, lives with his maternal grandmother and is a participant of the National Disability Insurance Scheme. He gained access to the NDIS as part of the early intervention requirements and the Tribunal was provided with a copy of his statement of participant supports from last year.[81]
5. Ms J testified that the Applicant's sons think highly of their father and that their mental health has deteriorated since he has been detained. She told the Tribunal that the June 2022 assault was out of character, and largely the result of alcohol. It was the steps he took on the CSIO which convinced her to continue with their relationship. The Tribunal was provided with recent photographs demonstrating the continuing relationship.[82]
6. The Applicant's mother and step-father testified by video-link from Kununurra. They are presently working in Halls Creek and live in Geraldton when they are not working in the far north. They testified that they had a close relationship with the Applicant. His mother indicated that she felt some guilt because the Applicant's offending was potentially related to witnessing his father's violent alcoholism in the UK. She thought he had changed since being in detention and that he now wanted to put his kids and partner first. The step-father testified that it is heartbreaking that the Applicant may be removed from Australia and that he considered that the Applicant had done all that was required by the courts, and in his view it the Applicant did seem to understand the need to change his behaviours and appears to have done so.
7. It was the Applicant's intention, supported by his family, that if he was to be granted the BVE he would live and work in Geraldton (at his parents' address) until he had settled himself back into the Australian community.
8. The Minister properly accepted that the impact of an adverse decision on the Applicant's immediate family weighed in favour of not refusing to grant the BVE but submitted that this was not outweighed by the adverse factors.[83]
9. This consideration weighs heavily in favour of not refusing to grant the visa.

1. The Tribunal is required to consider the best interests of minor children in Australia that are affected by the decision.[84] As there are three relevant minor children in this application, the Tribunal is required to give their interests separate consideration to the extent that their interests may differ.[85] Clause 8.4(4) of the Direction outlines the factors that the Tribunal must consider when determining the best interests of a child affected by the decision.
2. The Tribunal has already summarised some of the evidence before it concerning the children in the context of the Strength, nature and duration of ties primary consideration. It was accepted by the Minister that the best interests of each child weighed in favour of revocation.[86]

1. In considering the best interests of Master JR, the Tribunal has had regard to:

(a) The nature and duration of the father-son relationship, including that it has continued whilst the Applicant has been in immigration detention; > > (b) Master JR is 9 years of age and the Applicant is likely to play a positive parental role into the future if he remains abstinent; > > (c) Master JR misses his father and his mental health has reportedly deteriorated since he was detained. The Tribunal was told that he had been acting out at school and home since his father was detained; > > (d) Ms J is fulfilling a parental role for Master JR (as his mother) but she is reportedly struggling to raise him and his siblings in Mr Felstead's absence; and > > (e) Whilst Master JR was exposed to family violence in June 2022, there is no evidence that he has been abused or neglected by the Applicant.

1. In considering the best interests of Master JV, the Tribunal has had regard to:

(a) The nature and duration of the father-son relationship, including that it has continued whilst the Applicant has been in immigration detention; > > (b) Master JV is 7 years of age and the Applicant is likely to play a positive parental role into the future if he remains abstinent; > > (c) Master JV misses his father and his mental health has reportedly deteriorated since he was detained; > > (d) Master JV lives with his maternal grandmother because his mother is reportedly struggling to cope with his behaviour, and to parent his two siblings, without the Applicant; and > > (e) Whilst Master JV was exposed to family violence in June 2022, there is no evidence that he has been abused or neglected by the Applicant.

1. In considering the best interests of Master HJ, the Tribunal has had regard to:

(a) The nature and duration of the father-son relationship, including that it has continued whilst the Applicant has been in immigration detention; > > (b) Master HJ is 3 years of age and the Applicant is likely to play a positive parental role into the future if he remains abstinent; > > (c) Master HJ misses his father and his mental health has reportedly deteriorated since he was detained; > > (d) Ms J is fulfilling a parental role for Master HJ (as his mother) but she is reportedly struggling to raise him and his siblings in Mr Felstead's absence; and > > (e) Whilst Master HJ was exposed to family violence in June 2022, he was only two months old at the time and there is no evidence that he has been abused or neglected by the Applicant.

2. For the above reasons, the Tribunal finds that revocation would be in the best interests of all three children. Their interests are hard to distinguish and are clearly inter-related. Cumulatively, the best interests of relevant minor children weigh heavily in favour of revocation.

1. This primary consideration is a 'kind of deeming provision',[87] which requires the Tribunal to consider the Minister's articulation of community expectations.[88] Clause 8.5(1) of the Direction provides that 'the Australian community expects non-citizens to obey Australian laws while in Australia'. The Direction goes on to state that:[89]

[w]here 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 such a non-citizen to enter or remain in Australia.

2. Clause 8.5(2) then adds to that first 'norm_'_ and indicates that visa refusal may be appropriate in a particular case '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'. It specifies identified kinds of conduct, committed in Australia or elsewhere, as attracting that further expectation,[90] including 'acts of family violence'.[91]
3. The norms identified in the Direction 'apply regardless of whether the [Applicant] poses a [measurable] risk of causing physical harm to the Australian community'.[92]
4. The Tribunal is commanded to 'proceed on the basis of the Government's views as articulated' in the Direction, 'without independently assessing the community's expectations in the particular case'.[93]
5. The Tribunal adopts the approach to this primary consideration identified by Justice Horan in RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876 at [50]- [59].
6. The Tribunal finds that this primary consideration weighs in favour of refusal and will weigh this against the other relevant considerations.

1. The Tribunal is required to consider the legal consequences of its decision.[94] That is, the Tribunal must have regard to the statutory framework in which the power to refuse to grant the visa exists, including the direct and immediate consequences of an exercise of the power (including any decision under s 105 of the ART Act).
2. There are three major consequences of visa refusal or cancellation under s 501 and related provisions:

(a) a prohibition, within the migration zone, on applying for other types of visas under s 501E of the Migration Act (other than a protection visa or a bridging (removal pending) visa);[95]

(b) refusal/cancellation of other visa applications/visas under s 501F of the Migration Act; and

(c) the possible application of periods of exclusion and special return criteria under s 503 of the Migration Act and SRC 5001 and 5002 in Sch 5 to the Migration Regulations. This includes permanent exclusion where SRC 5001 applies unless the Minister acts personally to grant a permanent visa to the person under s 195A.

1. These adverse consequences can each be avoided by a positive decision not to exercise the discretion to refuse to grant the visa, and it should not be assumed that Parliament has evinced any preference as to the outcome of the review.[96]
2. The Tribunal asked the Minister to address how s 501F(2) of the Migration Act operated in circumstances where the Applicant had made another visa application, namely for the permanent partner visa, which had not been 'finally determined'.[97] In other words, this appeared to be another visa application (which was not for a protection visa or a prescribed bridging visa, which are respectively not affected), which had 'neither been granted nor refused' under the Migration Act. It would only be 'determined' (that is, granted or refused) once the Part 5 review was concluded.
3. The Minister submitted that s 501F did not apply to the partner visa application but did not convincingly explain why this was the case, and why it could not be said to be 'another visa application.'
4. If the Tribunal was to affirm the BVE refusal, the consequential refusal wrought by s 501F(2) would potentially affect any remittal that might be made by the Tribunal in the Part 5 review (effectively prohibiting the grant of that visa). The Tribunal accepts that if the Tribunal in the Part 5 review was to affirm the partner visa refusal than it would have no work to do. However, in the Tribunal's view, the prospect of consequential refusal should carry some weight in favour of not exercising the discretion to refuse to grant the BVE.
5. However, the Tribunal did raise with the parties a more obvious problem with the Part 5 review, namely that it appears to have no reasonable prospect of success because the Applicant does not hold a temporary partner visa. The Tribunal put to the parties that the futility of the Part 5 review may inform the discretion to refuse to grant the BVE, sought to be granted in association with it.
6. The Applicant accepted that this might be the case but argued for compassionate reasons why he should be allowed into the community to be with his family, even if that is only a small amount of time.
7. The Minister argued that the legal and other consequences of the Tribunal's decision should be given neutral weight because the Applicant already has the status of an 'unlawful non-citizen' because of the cancellation of his previous temporary visas.
8. The Tribunal considers that the legal and other consequences of its decision in this matter favour not exercising the discretion to refuse to grant the BVE.

1. The potential for the Applicant's removal technically does not arise because of the grant or refusal of a BVE. Rather, it would arise in consequence of the refusal of the substantive partner visa application.[98] However, because of the view the Tribunal takes with respect to the futility of the Part 5 review, the Tribunal has decided to consider this other consideration as being relevant to the review.
2. The Applicant is 33 years of age. He has a trade qualification in carpentry. Mr Felstead told the Tribunal that he is 'relatively healthy' and suffers from asthma.
3. The Applicant emigrated in February 2012 at 19 years of age. The Tribunal finds that there are not substantial language or cultural barriers.
4. The Applicant's two older sisters also remain in the UK. He speaks with his oldest sister monthly. The younger sister of the two was reportedly living in a women's refugee.
5. The Minister submitted that there were some impediments to the Applicant being able to establish himself and maintain basic living standards in the UK, but that they were not 'insurmountable'. Specifically, the Minister identified that the Applicant would have the same access to social, medical and economic support as other British citizens.[99] It was also observed that the Applicant's mother had routinely returned to the UK to visit her daughters and grandchildren.[100]
6. The Tribunal accepts that the Applicant would be able to access the National Health Service in the UK upon providing information confirming that he no longer resides in Australia.[101] Those available public health services would be able to adequately treat the Applicant's health conditions.
7. The Applicant identified the financial constraints that might prevent his partner and children from accompanying him to the UK. He also identified that his partner and children are Aboriginal and that 'forcing them to leave Australia to remain with [him] would sever [their] deep ancestral bond' to country and community'.[102]
8. The Tribunal finds that the Applicant can likely re-establish himself and maintain basic living standards. However, the Tribunal considers that the Applicant will be personally and deeply affected by any removal to the UK. His children and partner are also going to be deeply affected by such a course. The devasting consequence of that removal, and the potential for a choice to be made for his children to leave their country to be with their father should not be lightly cast aside. Overall, this other consideration weighs against refusal of the BVE under s 501(1) of the Migration Act.

1. The Tribunal is required to consider the Applicant's circumstances and each of the relevant considerations in this matter, as part of a single evaluation, in deciding whether it should exercise the discretion to refuse to grant the BVE.
2. Clause 7(2) of the Direction states that the primary consideration in cl 8.1 (protection of the Australian community) is 'generally to be given greater weight than other primary considerations', and that, otherwise, the relevant 'primary considerations should generally be given greater weight than the [relevant] other considerations.' This guidance is consistent with the principle articulated at cl 5.2(2), that 'the safety of the Australian community is the highest priority of the Australian government'.
3. The Tribunal considers there to be 'good reason' to depart from that policy in this case.[103] First, the Applicant poses an acceptable risk in the context of a temporary bridging visa. Further, the above policy guidance does not mean that the other considerations are secondary to the primary considerations, or that they should always be given less weight.[104]
4. The Tribunal has found that the Applicant poses an acceptable risk of re-offending. His previous conduct was serious, but the risk of its repetition is tolerable. The protection and expectations of the Australian community primary considerations weigh in favour of refusal, and the Government's concerns about conferring the privilege to remain here on the perpetrators of family violence are enlivened though they are proportionate to the seriousness of the conduct engaged in. These considerations collectively weigh moderately in favour of refusal. Against this, it was clear that an adverse decision would detrimentally impact the Applicant's family, particularly his partner and young children. These two primary considerations, when taken together, point strongly in favour of not exercising the discretion adversely. The other considerations add to that calculus.
5. In summary, the Tribunal has considered the relevant considerations in this matter and determined that it should not exercise the discretion to refuse to grant Mr Felstead a BVE. The correct decision is therefore to set aside the reviewable decision and substitute it with a decision that the visa is not to be refused on this ground.

1. The reviewable decision, dated 14 July 2025, to refuse to grant the Applicant a Class WE Subclass 050 Bridging E (temporary) visa under s 501(1) of the Migration Act, is set aside. In substitution for that reviewable decision, the Tribunal determines that the discretion should not be exercised.
2. The Applicant should be cognisant of the fact that further offending may result in the cancellation of his visa, and that it may adversely impact the exercise of any future discretion, including the potential exercise of ministerial intervention relevant to his ongoing status in this country.

I certify that the preceding 130 (one hundred and thirty) paragraphs are a true copy of the reasons for the decision herein of General Member J Papalia

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

[3] Re Kieran James Felstead and Minister for Immigration and Citizenship (Administrative Review Tribunal, 2216043, commenced 1 November 2022).

[4] See Minister for Immigration and Multicultural Affairs v Perth City Mission [2000] FCA 397, [23]; Administrative Appeals Tribunal Act 1975 (Cth) (repealed), s 43(1)(c)(ii); Administrative Review Tribunal Act 2024 (Cth) (ART Act), s 105(c)(ii).

[5] As to which see Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; (2016) 257 CLR 42, 97 [132]-[133].

[13] See Exhibit 12; Migration Regulations 1994 (Cth) (Migration Regulations), Sch 2, cls 801.22(1), 801.221(a), 801.221(2A)(a), 801.221(3), 801.221(4), 801.221(5)(a), 801.221(6)(a), 801.221(6AA) and 801.221(6AB).

[14] See Administrative Review Tribunal (Consequential and Transitional Provisions No 1) Act 2024 (Cth), s 2(1) and Sch 16 item 24.

[16] See Migration Act, s 127(3).

[25]See Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (WA), r 4.1.3.

[26] See Bainbridge v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080, [64]-[65].

[27] See ART Act_,_ ss 9, 54, 56(1)(a).

[29] Direction, cl 5.1(4); Migration Act s 499(2A).

[30] See LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610, [33].

[31] Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46; (2023) 296 FCR 582, [23], [81].

[32] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; (1979) 2 ALD 634.

[34] Direction, cl 5.1(3) and Annexure A; See also Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 652, [40] (not disturbed on appeal, [2025] FCAFC 78).

[35] See Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666, [63].

[36] See also Direction, Annex A, ss 1(1)-(5), 2(1)

[37] Migration Act, s 501(7)(c).

[38] Migration Act, s 501(7)(d).

[43] See Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 262 CLR 333, [94].

[44] See Re RRRB and Minister for Immigration and Multicultural Affairs [2025] ARTA 471, [74].

[46] See BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCAFC 14; (2025) 307 FCR 150, [107].

[48] This conduct is not excluded from consideration by virtue of Crimes Act 1914 (Cth), ss 85ZZH(c)-(d).

[52] See Exhibit 7,11 August 2020, p 9.

[60] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68]; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41].

[61] See Migration Regulations, Sch 2, cl 050.5.

[62] See Migration Regulations, Sch 2, cls 050.617 and 050.618.

[65] See Dutton v State of Western Australia [2017] WASCA 169, [49].

[66] See Aung v State of Western Australia [2022] WASCA 175, [39]-[41].

[67] Aung v State of Western Australia [2022] WASCA 175, [39].

[70] See Exhibit 7, 11 August 2020, p 9.

[78] Exhibit 1, pp 269-270; see also pp 204-210

[80] As to which see Re Anane and Minister for Immigration and Multicultural Affairs [2025] ARTA 822, [82]-[85].

[87] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, [76].

[94] Direction, cl 9.1(1). See also NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1, [3], [9]-[10]; Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146, [84], [88].

[95] See also Migration Act s 46(1)(d).

[96] See Stoneley and Minister for Immigration and Multicultural Affairs [2025] FCA 143, [36].

[97] See Migration Act, s 11A.

[98] See Migration Act, s 198.

[101] See https://www.gov.uk/guidance/using-the-nhs-when-you-return-to-live-in-the-uk; https://www.nhs.uk/nhs-services/mental-health-services/; https://www.prisonersabroad.org.uk/Pages/FAQs/Category/resettlement-related-helpfulorganisations.

[103] See Clive Elliot Jennings & Co Pty Ltd v Western Australian Planning Commission [2002] WASCA 276, [25]-[26].

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