1. The Applicant is a 31-year-old citizen of Sudan.[3]
2. The Applicant first arrived in Australia on 15 September 2006,[4] when he was 12 years old. The Applicant has remained in Australia since his arrival.
3. On 5 July 2006, the Applicant was granted the Visa.[5]

1. The Applicant's criminal history is set out in a Nationally Coordinated Criminal History Check Results Report by the Australian Criminal Intelligence Commission run on 21 August 2024.[6]
2. Between 2013 and 2022, the Applicant was convicted of a number of offences including 'disorderly behaviour in public', 'damaged property by graffiti', 'no authority to drive' and 'exceed 0.08g alcohol per 100ml of blood.' Notably:[7]

(a) On 4 May 2018, the Applicant was convicted of 'disorderly behaviour in a public place, breach of bail undertaking and give false detail to police. This followed an incident whereby two persons who the Applicant was with (one being the Applicant's brother) were arrested, the Applicant becoming aggravated, swearing at the police and giving a false name when asked.[8] > > (b) On 8 August 2018, the Applicant was convicted on three counts of 'damaged property by graffiti,' which all occurred on 17 April 2018. The Applicant claimed that he had used a lot of drugs and alcohol that night and did not have a full recollection of the events.[9] > > (c) On 17 November 2021, the Applicant was convicted of 'no authority to drive - cancelled.' > > (d) On 11 March 2022, the Applicant was convicted of 'no authority to drive - suspended' and 'exceed 0.08g alcohol per 100ml of blood.'

3. On 25 July 2024, the Applicant was convicted of '(Att) Sexual Penetration Without Consent' (the index offending). The Applicant was sentenced to a term of imprisonment of 2 years and 6 months.[10]
4. The index offending arose out of an incident on 16 January 2022 whereby the victim was asleep and highly intoxicated. As summarised by the sentencing Judge:[11]

...Firstly, the victim was - as I have found - vulnerable at the time you offended against her, and she was vulnerable for the following three reasons. > > Firstly, she was asleep - I find, and I have found - when you woke her, lying behind her, naked with your erect penis, moving around her vagina. Secondly, she was alone in a strange house at the time you entered the room. And thirdly, she was highly intoxicated at the time you offended against her, and the evidence of her state of intoxication is compelling. > > Secondly, so the second factor that makes your offending more serious if that your conduct was persistent. There was an element of persistence to it. So when you first woke the victim by touching her upper thigh, she told you, "No", before she fell back to sleep. You disregarded her expressions of "No", and you disregarded the fact that she told you "No", and to stop. > > And you then continued your sexual contact with her. Her underwear was removed. I've got no hesitation in finding that it was you who removed her underwear and you did so while she was in that vulnerable state, namely, her state of intoxication, being alone and while she was asleep. She told you, "No", on at least three occasions and you ignored that. > > You then pushed her dress up and you'd taken steps to remove your own clothing such that you were, as her sister described, fully naked lying behind the complainant. So there's a degree of persistence in your offending. So they are the two factors that makes your offending more serious. > > Now, in terms of the victim, no victim impact statement has been received from the complainant, [name], in this matter. Now, I'm told by the State that that is because she found it too distressing or found it too difficult to provide a victim impact statement. > > I watched her and heard her give evidence. She's a very quietly spoken, shy young woman who was clearly, throughout the evidence, visibly distressed and upset. And you know, that wasn't a nice experience for her to have to come to court and talk about such intimate matters in a court environment, and she was clearly embarrassed, upset and distressed at having to do so. > > ... > > So, taking into account all the circumstances of your offending, it is a very serious example of offending of this type... > > ... > > [W]hen you were interviewed by the psychologist, which was on 23 May this year, you continued to deny that you'd offended and you continued to effectively victim blame and victim shame for your offending, and you externalised blame to the victim and to a degree, her sister. > > And that was not going to be in your favour at all, but I am told this morning by [the Applicant's counsel] that you now admit that you did, in fact, offend and that something did happen that night consistent with you having offended, and you're no longer denying that the offence occurred. And so what that tells me is that albeit very late in the day, you've finally come to the point where you have admitted that you did the wrong thing. > > So that's a really big factor in your favour, because it tells me that you do accept what you did... > > ... > > I am not able to find that you're genuinely remorseful, but at least now you've accepted what you did, and so I'm going to sentence you on that basis... > > ... > > ...And conduct of that kind [of the index offending] involved an abject disregard by an offender for the victim's dignity as a human being, for their autonomy and their bodily integrity.

1. On 14 August 2024, the Delegate cancelled the Applicant's visa under s 501(3A) of the Migration Act on the basis that the Applicant had a substantial criminal record within the meaning of ss 501(6)(a) and 501(7)(c), with him serving a sentence of imprisonment of 12 months or more on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State, or Territory (the 'Cancellation Decision').[12] The Applicant was notified by letter of the same date, which he received by hand delivery to Casuarina Prison.[13]
2. On 12 September 2024, the Applicant made a request for revocation of the Cancellation Decision under s 501CA of the Migration Act.[14]
3. On 17 September 2025, the Delegate found that they were not satisfied that there was 'another reason' to revoke the Cancellation Decision, therefore the power under s 501CA(4) was not enlivened and the Delegate made the Reviewable Decision.[15] The Applicant was notified of the Reviewable Decision on 25 September 2025, which he received by hand delivery to Casuarina Prison.[16]
4. On 26 September 2025, the Applicant lodged an application for review in the Tribunal, for review of the Reviewable Decision.[17]

(a) whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and

(b) if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is 'another reason' why the Cancellation Decision should be revoked.[18]

Migration Act

1. The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
2. These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is 'another reason' that the decision to cancel or refuse a visa should be revoked.
3. The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:

1. For the purposes of this section, a person does not pass the character test if:

(a) the person has a substantial criminal record (as defined by > > subsection (7)); ...

1. A 'substantial criminal record' is relevantly defined by s 501(7)(c) of the Migration Act as follows:

1. For the purposes of the character test, a person has a substantial criminal record if: ...

(c) the person has been sentenced to a term of imprisonment of > > 12 months or more; ...

1. Under s 501(3A) of the Migration Act, the Minister must cancel the Visa of certain persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
2. Additionally, under s 501(3A) of the Migration Act, the person must be 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 a Territory.
3. If a visa is cancelled under s 501(3A) of the Migration Act, the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[19] If the person makes representations in accordance with the invitation, the Minister may revoke the Cancellation Decision under s 501CA(4) if satisfied that the person passes the character test or that there is 'another reason' why the original decision should be revoked.
4. Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is 'another reason' why the Cancellation Decision should be revoked.[20]

1. The hearing was held on 2 December 2025 at the Tribunal's Perth Registry. The Applicant was self-represented. The Respondent was represented by Mr Ashley Burgess of the Australian Government Solicitor. The parties appeared in person.
2. At the hearing, the Applicant gave evidence and was cross-examined. No other witnesses were called.
3. The Tribunal marked the Joint Hearing Book prepared by the Respondent as an exhibit (Exhibit R1).
4. At the hearing, the Tribunal provided the opportunity for the parties to respond to matters put by the Member, directed at matters relevant to 'Direction no. 110 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA' ('Direction no. 110'), in their oral closing submissions.

1. As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a 'substantial criminal record', as defined by s 501(7).
2. Relevant to the Applicant's case, a person has a 'substantial criminal record' if they have been 'sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more'.[21] Failure to pass the character test arises as a matter of law.[22]
3. As noted above, on 25 July 2024, the Applicant was sentenced to 2 years and 6 months' imprisonment in relation to the index offending.[23]
4. As the Applicant has been sentenced to a total term of imprisonment of 12 months or more, he does not pass the character test by operation of s 501(7)(d) of the Migration Act. At the hearing, the Applicant did not dispute this is the case.

1. As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine, having regard to the primary and other considerations contained within Direction no. 110, whether there is 'another reason' why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is 'another reason' why the Cancellation Decision should be revoked.[24]
2. The Tribunal is required to form a state of satisfaction as to whether there is 'another reason' why the Cancellation Decision should be revoked, reasonably, and on a correct understanding of the law. By reason of s 499(2A) of the Migration Act, in doing so, the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.

1. On 7 June 2024, the Minister made Direction no. 110 under s 499 of the Migration Act, which commenced operation on 21 June 2024. This Direction replaced the previous Direction no. 99.[25]
2. An objective of Direction no. 110 is to guide decision-makers in exercising powers under

ss 501 or 501CA of the Migration Act.[26] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction

no. 110 where relevant to the decision.[27] 3. Paragraph 5.1 of Direction no. 110 sets out '[o]bjectives', including paragraph 5.1(3) which provides that:

Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full­time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.

4. Paragraph 5.2 of Direction no. 110 sets out '[p]rinciples' which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles 'provide the framework within which decision-makers should approach their task of deciding whether to ... revoke a mandatory cancellation under s 501CA' and are expressed as follows:
   1. Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non­citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
   2. The safety of the Australian Community is the highest priority of the Australian Government.
   3. Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
   4. The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
   5. Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
   6. With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
   7. Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non­ citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
   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.
5. In making a decision under s 501CA(4), the 'primary considerations' to be taken into account by the Tribunal are:[28]
   1. protection of the Australian community from criminal or other serious conduct;
   2. whether the conduct engaged in constituted family violence;
   3. the strength, nature and duration of ties to Australia;
   4. the best interests of minor children in Australia; and
   5. expectations of the Australian community.
6. The 'other considerations' that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[29]

(a) legal consequences of the decision;

(b) extent of impediments if removed; and

(c) impact on Australian business interests.

1. Further guidance as to how a decision-maker is to apply the considerations in

Direction no. 110 can be found in paragraph 7, which provides that: 1. In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. 2. The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations. 3. One or more primary considerations may outweigh other primary considerations.

IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?

1. The Applicant made no specific contention as to why the Cancellation Decision should be revoked, other than to emphasise that he has nowhere to go if he is returned to Sudan and that he has been in Australia for longer than he has been 'back home.'
2. The Respondent contended that there is not 'another reason' why the Cancellation Decision should be revoked and submitted that the seriousness of the Applicant's offending, along with the expectations of the Australian community weight heavily against revocation of the Cancellation Decision.[30]

1. The first primary consideration, paragraph 8.1(1), focuses on the protection of the Australian community.
2. Direction no. 110 requires decision-makers to keep in mind that 'the safety of the Australian community is the highest priority of the Australian Government' and to that end 'the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens'.[31] In this respect, the Tribunal is directed to have particular regard to the principle that:

entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[32]

3. Paragraph 8.1(2) of Direction no. 110 then provides that decision-makers should also give consideration to:

(a) the nature and seriousness of the non-citizen's conduct to date; and

(b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

1. The Respondent contended that the protection of the Australian community is the highest priority of the Australian Government and should outweigh the countervailing considerations.[33]

1. The Tribunal must consider the nature and seriousness of the Applicant's criminal offending and other conduct to date[34] by having regard to specific types of crimes or conduct which are 'viewed very seriously' by the Australian Government and the Australian community. The direction also provides that certain other crimes or conduct are considered to be serious. While there are categories of conduct to be considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.[35]
2. Paragraph 8.1.1(1) of Direction no. 110 provides:

1. In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:

(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community: > > > (i) violent and/or sexual crimes; > > > > (ii) crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed; > > > > (iii) acts of violence, regardless of whether there is a conviction for an offence or a sentence imposed; > > (b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious: > > > (i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed; > > > > (ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties; > > > > (iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c)); > > > > (iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention; > > (c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes; > > (d) the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness; > > (e) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness; > > (f) the cumulative effect of repeated offending; > > (g) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending; > > (h) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour); > > (i) where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

3. When asked about his substance use, the Applicant said he used to drink on weekends, to get away from what he went through when he was younger. The Applicant said that he tried drugs ('weed and meth') in high school but he never liked them.
4. When taken to the statement of material facts in relation to his 'damaged property by graffiti' offences,[36] the Applicant said he had consumed a lot of red wine in the park that evening and he does not know why he told the police he had been using drugs that evening when he cannot recall having done so.
5. The Applicant said that back then, he did not know that he had a problem with alcohol, but looking back, he sees that alcohol was 'getting to him.'
6. Regarding his drink driving offence, the Applicant said that he was depressed and frustrated at the time, as he had just been charged with the index offences, so he started drinking more alcohol.
7. When taken to the record in his prison assessment of his advice that he was 'in the process of appealing his conviction, asserting his innocence and confirming ongoing discussions with his legal representatives,[37] the Applicant said he is still finding a lawyer as he is 'appealing the whole case.'
8. Regarding the findings of fact made by the sentencing Judge in relation to the index offending, the Applicant said he did not say to the victim 'come and sleep in the bedroom,' rather she got up and went to the bedroom at 6am when the Applicant's housemate came home. The Applicant said he was in the lounge room and did not go to the bedroom. The Applicant said that the events that followed as recorded by the sentencing Judge as findings of fact never occurred as he never went to the bedroom.
9. When asked why the victim and her sister would lie about these events, the Applicant said the victim and her sister's uncle is married to his (the Applicant's) older sister and the victim and her sister's older brother used to date the Applicant's younger sister during COVID. When asked, the Applicant said he did not tell his lawyer about this and did not ever tell his side on the story. The Applicant said that what actually occurred was that he had slapped the victim's older sister when she came at him with a bottle.
10. As to the Applicant's counsel having stated at the commencement of sentencing that he had spoken to the Applicant, the Applicant had admitted he had done what he was accused of and the sentencing Judge having taken that into account during sentencing,[38] the Applicant said this did not occur. The Applicant said that he had been present in court on the morning his counsel had reportedly stated this but did not recall him having said it because he was 'just sitting there, not paying attention.'
11. The Respondent suggested to the Applicant that on the day he was sentenced, he was told that the psychologist's report had stated he was not remorseful and this would look bad for him and that he then told his lawyer to go into the sentencing hearing and state on the Applicant's behalf that the events as charged did occur. The Respondent put to the Applicant that the reason for his having done this was that he thought he would get a lesser sentence. The Applicant said this did not occur and was not the case.
12. The Tribunal has considered the evidence and the parties' related submissions in relation to the nature and seriousness of the Applicant's offending conduct by reference to matters or considerations raised in paragraph 8.1.1 of Direction no. 110.[39]
13. The Applicant's index offending is very serious in nature, was considered by the sentencing Judge as such and is one of the types of conduct that falls squarely within the conduct referred to in paragraphs 8.1.1(1)(a)(i) and 8.1.1(1)(a)(ii) of Direction no. 110. The victim was also a vulnerable member of the community for the reasons stated by the sentencing Judge, which also goes to the seriousness of the index offending.[40]
14. The Applicant's offending involved conduct for which he was ultimately sentenced to a term of imprisonment. This conduct forms the basis of the finding that the Applicant did not pass the character test,[41] and is, in the Tribunal's view, probative of the overall seriousness of that offending conduct, noting that sentences involving terms of imprisonment are the last resort in the sentencing hierarchy.[42]
15. While there is no victim impact statement before the Tribunal regarding the index offending, it is reasonable to infer from the sentencing Judge's remarks that the impact on the victim was significant, noting the victim was observed to be embarrassed, upset and distressed when she gave her evidence.[43]
16. The Applicant has a history of offending from 2018 to 2024,[44] including driving offences, damage to property and disorderly behaviour.
17. In relation to the frequency of the Applicant's offending and whether there is any increasing trend in seriousness,[45] the Tribunal takes into account that the Applicant's overall offending has been frequent over time, with a trend of increasing seriousness culminating in the index offending.[46]
18. The Tribunal considers that the cumulative effect of repeated offending is serious as it demonstrates a continuing disregard for the laws of Australia and the safety of the Australian community.[47]
19. There is no evidence or claims made that the Applicant provided false or misleading information to the Department,[48] was given a formal warning,[49] or committed an offence in another country[50] or in relation to any of the matters set out in paragraphs 8.1.1(1)(b)(i) or (iv) of Direction no. 110.
20. Overall, the Tribunal finds that, applying Direction no. 110, the Applicant has a significant criminal record as evidenced by the terms of imprisonment ordered, the total effective sentence imposed, and the serious nature of the offences committed, the index offending being identified as 'very serious' by Direction no. 110 by its very nature.
21. Therefore, having regard to the evidence of which paragraph in 8.1.1 of Direction no. 110 is relevant, and the comments and assessment on the offending in sentencing and by the courts generally, the Tribunal considers the Applicant's offending conduct to be very serious and weighs very heavily against revoking the Cancellation Decision.

Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

1. The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of Direction no. 110 states, in part:[51]

1. In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. 2. In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and > > (b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account: > > > (i) information and evidence on the risk of the non­citizen re-offending; and > > > > (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). ...

This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[52] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[53]

There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[54]

1. In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the Australian community, should the Applicant reoffend.
2. The Applicant made no particular claim regarding the nature of the harm caused should he reoffend.
3. The Respondent submitted that should the Applicant reoffend, the nature of the harm that would be caused to the Australian community would be very serious and includes serious psychological harm.[55]
4. The Tribunal notes the Applicant has at no time apologised or accepted responsibility for any of his offending behaviour, including the index offending (which he continues to deny occurred). The Applicant also disputes that prior to sentencing he admitted to his index offending in order to appear more favourably before the sentencing Judge.
5. Should the Applicant commit further similar offences, this would further result in very serious harm that may cause considerable psychological and emotional harm to members of the Australian community.

Likelihood of the non-citizen engaging in further criminal or serious conduct

1. In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[56]
2. The Applicant said that he had completed any rehabilitation courses and that he was ineligible for a sexual offenders course because of his visa status. The Applicant said he had attended Alcoholics Anonymous on one occasion in the previous week and had attended Narcotic Anonymous thinking he had 'ticked the box' for Alcoholics Anonymous.
3. The Respondent put to the Applicant that his parole had previously been denied (in May 2025) on the basis of his serious offences and the fact he had behaved poorly in prison. When taken to the records of those prison incidents and outcomes,[57] the Applicant said they were inaccurate.
4. When taken to Reverend Mark Arney's letter of support dated 15 April 2025, which stated that the Applicant had no charged or negative notes recorded against him during his incarceration,[58] the Applicant said he did not tell the Reverend this and accepted that this was incorrect given that all of the prison incidents occurred prior to Reverend Arney providing his letter.
5. The Applicant made no particular submission regarding his risk of reoffending other than to state that he is not going to commit the same offences in future.
6. The Respondent, however, is of the view that the Applicant presents a real and unacceptable risk of reoffending, with a moderate to high likelihood of this occurring.[59]
7. The Tribunal has reviewed the Respondent's comprehensive submissions on the Applicant's risk of reoffending, which addressed the areas of the sentencing judge's remarks, the psychologist report before the Court[60] and the Applicant's lack of rehabilitation efforts and remorse.[61] Having done so, the Tribunal makes the following remarks and findings:

(a) The psychologist report before the Court considered the Applicant was at a moderate to high risk level for reoffending, having regard to his lack of positive social influences, impulsivity and potential for poor compliance with supervision. > > (b) The sentencing Judge considered the Applicant's acceptance of responsibility, albeit late into the criminal proceedings, demonstrated a degree of insight moderating the risk level espoused by the psychologist but was still limited to the extent that the Applicant engaged in what was described as victim blaming and shaming. The Tribunal considers this moderating factor is made obsolete with the Applicant's continued denial of his offending. > > (c) The Applicant was involved in a number of incidents in prison. The Tribunal does acknowledge, however, that the Applicant was transferred from a maximum security prison to a minimum security prison in November 2025. > > (d) In his letter of support, Reverend Arney stated the Applicant is deeply remorseful. The Tribunal struggles to reconcile this with the fact the Applicant continues to deny his index offending and that Reverend Arney was unaware of the Applicant's incidents in prison. Indeed, the sentencing Judge described the Applicant's remorse as 'none' and 'zero,' a view which remains relevant to the present proceedings where the Applicant continues to deny his offending. > > (e) In the same vein, the Applicant's continued denial of his offending stands in contrast with his acceptance of responsibility before the sentencing Judge, which the Applicant denies was to minimise his sentencing outcome, a fact that he also denies any awareness of on the basis he was not paying attention during sentencing and never discussed his aside of the story with his then legal representative. Given the sentencing Judge's remarks on this matter, the Tribunal accepts the Applicant did in fact instruct his solicitor at the time to tell the Court that he accepted he committed the index offence and that he knew it was important to do so in relation to his impending sentence. > > (f) In any event, the Tribunal cannot go behind the Applicant's convictions.[62] The Applicant gave evidence that he intends to appeal the whole case, however there is no evidence at this time that any appeal has been lodged. > > (g) The Applicant has not undertaken any rehabilitation courses or otherwise taken any steps to address his alcohol use. The Tribunal notes with agreement the Respondent's submission that this is not surprising in circumstances where the Applicant continues to deny his offending. The Applicant does not appear to regard alcohol as being a significant problem for him, just that it was 'getting to him.' This leaves the Tribunal in a position where it is unclear what caused the Applicant to offend and the Applicant in a position where he has unmet treatment needs (whatever those needs might be). > > (h) There is no corroborated evidence before the Tribunal regarding the Applicant's accommodation options if released and whether his family holds any concerns of him being an ongoing risk to the community. The Applicant was living with family at the time he offended so it cannot be said that him returning to live with family if released would serve as a protective factor. Similarly, the Applicant had been gainfully employed for a considerable period (other than just prior to his offending, by his own evidence) and an active member of the church therefore these are not factors which serve to reduce his risk of offending as they did not prevent him from offending in the past.

8. In light of the above, the Tribunal finds that there is a high risk that the Applicant will reoffend in a similar manner. The Tribunal considers this risk is unacceptable in circumstances where the harm to the community presented by the types of offending or other serious conduct the Applicant has engaged in is significant.

Conclusion on the protection of the Australian community

1. Having regard to the nature and seriousness of the Applicant's offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that the protection of the Australian community consideration weighs very heavily against revocation of the Cancellation Decision.

1. There is no evidence before the Tribunal to suggest that the Applicant has engaged in acts of family violence. Accordingly, the Tribunal considers that this consideration is not relevant to the Applicant's case and weighs neutral.

The strength, nature and duration of ties to Australia

This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant's ties to Australia. Paragraph 8.3 of Direction no. 110 provides that:

1. Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2. Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and

(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community

(b) 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.

1. The Applicant said that his mother, four brothers and two sisters all live in Australia. The Applicant said his younger brother Bak lives with their mother, that his sister lives with her three children, he has a brother that lives in Melbourne and an older sister that lives with their older brother.
2. When asked, the Applicant said he could not recall if any of his siblings had been to prison, but maybe one of his older brothers had been.
3. The Applicant said that if he were able to remain in Australia, he would live with his mum and younger brother.
4. The Applicant said that at the time of his index offending, he was living with his older sister. The Applicant said that his mother did not know of his index offending at the time, or of his prior offending, other than police bringing him home on one occasion having been in a fight after school. The Applicant said he had since told his mother 'about the charge', as she knows the victim's family.
5. The Respondent submitted that while there is nothing in the Applicant's statements that say his mother, brother or other family members would be adversely affected if he was removed, it accepts that this factor would weigh in favour of revocation of the Cancellation Decision, but not such as to outweigh other countervailing considerations in this case.[63]
6. In relation to the strength, nature and duration of the Applicant's ties to Australia, the Tribunal is required to consider any impact of the Applicant's immediate family members in Australia, where those family members are Australian citizens, permanent residents of Australia or have an indefinite right to remain in Australia.[64] The Tribunal is also required to consider the strength, nature and duration or any other ties that the Applicant has to the community.[65]
7. Having considered the available evidence and the parties' submissions on the matter, the Tribunal finds that the strength, nature and duration of ties consideration weighs slightly in favour of revocation of the Cancellation Decision for the following reasons:

(a) The Applicant has lived in Australia since 2006, arriving at the age of 12. > > (b) The Applicant began offending in 2018 and continuously to 2024. Therefore, the Applicant has not, for approximately six of the years he has spent in Australia, been contributing to the community in a positive manner. > > (c) The Applicant has been employed in Australia in the past, however there is no evidence he has a job available to him if he were to remain in Australia. > > (d) The Applicant claims to have been involved in the church, which while the Tribunal accepts is a positive contribution, there is no evidence before it to how strong or enduring his involvement was. > > (e) The Tribunal accepts the Applicant has familial ties to Australia, being his mother, siblings and their children. The Tribunal also accepts that the Applicant has a close relationship with his mother and his younger brother Bak, noting the hardships and trauma they have been through together, the assistance the Applicant provided to his mother prior to his incarceration.[66]

Best interests of minor children in Australia affected by the decision

1. Paragraph 8.4 of Direction no. 110 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under paragraph 8.4, the Tribunal 'must make a determination about whether cancellation or refusal under s 501... is, or is not, in the best interests of' children who are under the age of 18 at the time the decision is expected to be made.[67] Where there are 'two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ'.[68]
2. Paragraph 8.4(4) of Direction no. 110 goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant. Those factors include:[69]

(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any court orders relating to parental access and care arrangements;

(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;

(e) whether there are other persons who already fulfil a parental role in relation to the child;

(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; [and]

(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

1. The Applicant has three minor age nieces and one minor age nephew. The Applicant has provided no evidence of their surnames, dates of birth, no claims or evidence regarding his relationship with each of these children or corroborating evidence of the same, other than to say he assists with their sporting activities and sees them fortnightly.[70] The Applicant has also not provided any evidence as to how each of these children would be affected by his removal.[71]
2. In any event, the Applicant's relationship with these children is non-parental, has been marked by his absence while in prison,[72] the extent to which the Applicant is likely to play a positive parental role is questionable.[73]
3. Having considered the available evidence against the relevant factors in paragraph 8.4(4) of Direction no. 110 (to the extent possible, given this evidence is extremely limited in nature), the Tribunal finds that the best interests of minor children consideration weighs slightly in favour of revocation.

1. The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of Direction no. 110 provides that:

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

2. Paragraph 8.5(2) of Direction no. 110 directs that:

... visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of [particular kinds].

3. The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen's visa if they raise serious character concerns through specific conduct listed in paragraphs 8.5(2)(a)-(f) of Direction no. 110. Those particularised types of harm generally reflect the types of conduct identified in paragraphs 8.1.1(a)-(b) as conduct which is considered 'very serious' or 'serious'.
4. Paragraph 8.5(3) of Direction no. 110 further confirms that the stated 'expectations apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community'. In doing so, paragraph 8.5(3) arguably further qualifies the 'norm' expressed in paragraph 8.5(1), which refers to the 'unacceptable risk' of conduct being engaged in. This makes it clear that a 'measureable [sic] risk' of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the person's conduct or offending.[74]
5. Paragraph 8.5(4) of Direction no. 110 directs that:

[t]his consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above [in para 8.5], without independently assessing the community's expectations in the particular case.

6. This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached, or if there is an unacceptable risk that it may be breached in the future.
7. However, it remains for the Tribunal to determine the appropriate weight to be given to this consideration. This will depend on the Tribunal's assessment of the totality of the relevant considerations including the primary and other considerations.
8. In weighing this consideration, the Tribunal is also guided by the principles in paragraph 5.2 of Direction no. 110.

(a) Paragraph 5.2(2) states that 'the safety of the Australian Community is the highest priority of the Australian Government';

(b) Paragraph 5.2(3) directs that the Applicant, having engaged in criminal conduct, 'should expect to... forfeit the privilege of staying in Australia';

(c) Paragraph 5.2(4) expresses a principle similar to paragraph 8.5(3) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community;

(d) Paragraph 5.2(5) states that Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time; and

(e) Paragraph 5.2(6) states that, 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.

1. In relation to the expectations of the Australian community, the Respondent submitted that the Applicant has committed a very serious offence and the Australian community would expect that his visa would remain cancelled.[75] The Tribunal agrees.
2. The Applicant's offending comprises 'serious crimes'[76] as that is the term used in Direction no. 110, including at paragraph 8.5(2)(c), being ones that raise serious character concerns and bringing the expectation of the Australian community that the offending person should not continue to hold a visa.
3. In light of the objective seriousness of the Applicant's offending, the Tribunal finds that the expectations of the Australian community consideration weighs very heavily against revocation of the Cancellation Decision.

Legal consequences of decision under section 501 or 501CA

1. The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia's non-refoulement obligations in respect of unlawful non-citizens.[77]
2. While this consideration in Direction no. 110 refers to non-refoulement obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a decision not to revoke the cancellation of an applicant's visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:

(a) Unlawful status; > > (b) The likelihood of becoming subject to detention and/or removal;[78] > > (c) Refusal of other visa applications and cancellation of other visas;[79] > > (d) A prohibition on applying for other visas;[80] and > > (e) Periods of exclusion and special return criteria may apply.[81]

3. Generally, if a visa is cancelled, its former holder becomes an unlawful non-citizen immediately after cancellation.[82] Under s 189 of the Migration Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198.[83]
4. The Applicant arrived in Australia on a Global Special Humanitarian (Class XB) (subclass 202) visa. The Applicant claims that if he returns to Sudan he will face significant threats to his freedom and his life.
5. The Tribunal accepts that if these claims were proven, Australia's non-refoulement obligations would be engaged.
6. That being said, the Applicant is not presently the subject of a protection finding, nor has he applied for a protection visa. It remains open for the Applicant to do so and if he did, he would be in a position to provide further and more detailed evidence regarding his claims.
7. The Tribunal has identified the Applicant's claims. Beyond this, it is most appropriate for the Tribunal to defer consideration of the Applicant's non-refoulement claims to any future application for a protection visa. It is further to this protection visa application that these claims could be assessed in more detail.
8. The Tribunal also pays regard to the matters raised by the Respondent in paragraph 49 of its Statement of Facts, Issues and Contentions[84] and further agrees that any claims regarding the hardship the Applicant might face in returning to Sudan and reestablishing himself there should be addressed under the extent of impediments if removed consideration.
9. As such, the Tribunal finds that in the present matter, the legal consequences if removed consideration weighs slightly in favour of revocation of the Cancellation Decision.

1. Paragraph 9.2 of Direction no. 110 provides that, taking into account the matters identified in paragraphs 9.2(1)(a)-(c) of Direction no. 110, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country.
2. The matters identified under paragraphs 9.2(1)(a)-(c) are:

(a) the [Applicant's] age and health; > > (b) whether there are substantial language or cultural barriers; and > > (c) any social, medical and/or economic support available to [the Applicant] in their country.

3. The Applicant has not claimed to have any diagnosed health concerns or issues, however he does claim to suffer from PTSD from witnessing his father and other family members being killed in Sudan when he was younger. There is no medical evidence before the Tribunal in this regard. The Applicant also claimed that he has nowhere to go if he returns.
4. The Tribunal accepts that the Applicant has lived in Australia for a significant proportion of his life, and indeed some of his formative years and all of his adult life. The Tribunal also accepts that the economic, welfare, health and social support available to him in Sudan would not be comparable to that available in Australia and he would also likely experience some language and cultural barriers.
5. Overall, the Tribunal is satisfied that the consideration of the extent of impediments if removed weighs moderately in favour of revocation of the Cancellation Decision.

1. Paragraph 9.3 of Direction no. 110 states:
   1. Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
2. The Applicant did not suggest that his removal from Australia would adversely impact Australian business interests. Similarly, the Respondent contended there did not appear to be any impact on the interest of Australian businesses.[85]
3. There is no evidence the Applicant is involved in the delivery of a major project or important service in Australia that would impact any Australian business interests.[8]
4. As such, the Tribunal considers this consideration weighs neutral in the Applicant's case.

1. The Applicant does not pass the character test under s 501(6) of the Migration Act.
2. The Tribunal has therefore considered whether there is 'another reason' why the Cancellation Decision should be revoked, having regard to the primary and other considerations in Direction no. 110.
3. Paragraph 7 of Direction no. 110 sets out the way in which the relevant considerations are to be taken into account and weighed.
4. There has been extensive judicial consideration on how the exercise of balancing and weighing the considerations contained in the relevant Ministerial Directions is to be undertaken (considering a number of Ministerial Directions preceding Direction no. 110).
5. Relevantly, the Full Court of the Federal Court considered the operation of Direction no. 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138. While the Court was considering Direction no. 90, its observations would apply to Direction no. 110. The Court found that the Tribunal must weigh the various primary and other relevant considerations outlined in the Direction (in this case Direction no. 110) against each other and undertake an evaluation of whether there was 'another reason' why the Cancellation Decision should be revoked.
6. In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction no. 110. The Tribunal has ascribed weight to each of the primary and other considerations under Direction no. 110 and explained the basis upon which it has assessed the weight to be given to each consideration.
7. The Tribunal has gone on to compare and balance all of the considerations to determine whether the Cancellation Decision should be revoked.
8. The Tribunal found that the protection of the Australian community consideration weighs against revocation of the Cancellation Decision and affords the consideration very heavy weight in the Applicant's circumstances.
9. The Tribunal found that the consideration of family violence weighs neutrally in the Applicant's case.
10. The strength, nature and duration of the Applicant's ties to Australia consideration weighs in favour of revocation of the Cancellation Decision. The Tribunal finds slight weight should be afforded to that consideration in the present matter.
11. The best interests of the minor children identified as being impacted by the decision weigh in favour of revocation. Overall, the Tribunal considers slight weight should be afforded to this consideration in the Applicant's circumstances.
12. The expectations of the Australian community consideration weighs against revocation of the Cancellation Decision and the Tribunal finds this consideration should be afforded very heavy weight in the Applicant's case.
13. In relation to the relevant 'other considerations' identified in Direction no. 110, the Tribunal finds that:

(a) the legal consequences of the decision consideration weighs slightly in favour of revocation of the Cancellation Decision; > > (b) the extent of impediments if removed consideration weighs moderately in favour of revocation of the Cancellation Decision; > > (c) the impact on Australian business interests consideration weighs neutrally, > > for the reasons given.

14. Having weighed the considerations, the Tribunal finds that:

(a) The first and fifth primary considerations each weigh very heavily against revocation of the Cancellation Decision; > > (b) The second primary consideration, and the impact on Australian business interests consideration each weigh neutrally; > > (c) The strength, nature and duration of ties consideration, the best interests of minor children consideration and the legal consequences of a decision consideration weigh slightly in favour of revocation of the Cancellation Decision; and > > (d) The extent of impediments if removed consideration weighs moderately in favour of revocation of the Cancellation Decision.

15. Paragraph 7(2) of Direction no. 110 states that primary considerations should generally be given greater weight than the other considerations. Further, it states that primary consideration 8.1 (protection of the Australian community) is generally to be given greater weight than other primary considerations.
16. Nothing before the Tribunal would cause it to find that that general principle should not apply in the Applicant's case.
17. Having weighed the primary and other considerations against each other, the Tribunal is satisfied that appropriate weight has been assigned to each of them.
18. Particularly, the Tribunal is satisfied that the circumstances of the Applicant's case warrant the very heavy weight placed on the first and fifth primary considerations. Those circumstances being:

(a) the serious view taken by the Australian Government and the Australian community in relation to sexual crimes generally along with crimes of a sexual nature against women;[86] and > > (b) that the Australian community expects the Australian Government to cancel the visas of those persons who do not obey Australian laws.[87]

19. Therefore, while the considerations weighing in favour of revocation of the Cancellation Decision are greater in number than those weighing against revocation, the Tribunal is satisfied that the very heavy weight afforded to the first and fifth primary considerations gives the result that they carry, overall, far greater weight than the considerations weighing in the favour of revocation.
20. In summary, having regard to all of the primary and other considerations in Direction no. 110, the Tribunal is not satisfied that there is 'another reason' why the Cancellation Decision should be revoked.
21. The correct or preferable decision is to affirm the Reviewable Decision.

1. For the reasons given above, the Tribunal's decision dated 11 December 2025 was:

The decision of the Delegate of the Respondent dated 17 September 2025 to exercise the discretion not to revoke the mandatory cancellation of the Applicant's Global Special Humanitarian (Class XB) (subclass 202) visa under s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.

I certify that the preceding 145 (one hundred and forty-five) paragraphs are a true copy of the reasons for the decision herein of General Member L M Gallagher

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

Ashley Burgess, Australian Government Solicitor

[3] Exhibit R1, Document HB1, pp 52, 53 and 76.

[11] Exhibit R1, HB1, pp 32 to 34 and p 39.

[12] Exhibit R1, Document HB1, pp 77 to 83.

[14] Exhibit R1, Document HB1, pp 47 to 50.

[15] Exhibit R1, Document HB1, pp 11 to 14.

[17] Exhibit R1, Document HB1, pp 4 to 7.

[18] See Migration Act s 501CA(4).

[19] Migration Act s 501CA(3).

[20] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121, 136 [66].

[21] Migration Act s 501(7)(d).

[22] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666, 685 [63].

[24] Migration Act s 501CA(4)(b)(ii).

[25] Direction no. 110, paragraphs 2-3.

[26] Direction no. 110, paragraph 5.1(4).

[30] Exhibit R1, Document HB3(a) [59].

[31] Direction no. 110, paragraph 8.1(1).

[32] Direction no. 110, paragraph 8.1(1).

[33] Exhibit R1, Document HB3(a) [59]. The countervailing considerations being, in the Respondent's submission, the strength, nature and duration of ties consideration and the best interests of minor children consideration.

[34] Direction no. 110, paragraph 8.1(1).

[35] Direction no. 110, paragraph 8.1.1(1)(a).

[36] Exhibit R1, HB3(a), pp 146 to 146.

[37] Exhibit R1, Document HB3(c), S3, p 169.

[38] Exhibit R1, Document HB3(c), S4, p 191.

[39] Exhibit R1, Document 1 [40] to [54] and Document 2 [17] to [25].

[40] Direction no. 110, paragraph 8.1.1(1)(b)(ii).

[41] Direction no. 110, paragraph 8.1.1(1)(b)(iii).

[42] Direction no. 110, paragraph 8.1.1(1)(c). Noting that crimes of a sexual nature against women are considered serious regardless of whether a conviction or sentence is imposed in any event.

[43] Direction no. 110, paragraph 8.1.1(1)(d).

[44] Direction no. 110, paragraph 8.1.1(1)(e).

[45] Direction no. 110, paragraph 8.1.1(1)(e).

[46] Direction no. 110, paragraph 8.1.1(1)(e).

[47] Direction no. 110 paragraph 8.1.1(1)(f).

[48] Direction no 110, paragraph 8.1.1(1)(g).

[49] Direction no. 110 paragraph 8.1.1(h).

[50] Direction no. 110 paragraph 8.1.1(i).

[51] See also Direction no. 110 paragraph 8.1(2)(b).

[52] Direction no. 110, paragraph 8.1.2(2)(a).

[53] Direction no. 110, paragraph 8.1.2(2)(b).

[54] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] (Moshinsky J); Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] (Kenny J).

[55] Exhibit R1, Document HB3(a) [28].

[56] Direction no. 110, paragraph 8.1.2(2)(b).

[57] Exhibit R1, Document HB3(c), S4, p 183.

[59] Exhibit R1, Document HB3(a) [33] and orally at hearing.

[60] Exhibit R1, Document HB3(c) S4.

[61] Exhibit R1, Document HB3(a) [29] to [32] and HB3(b) [8] to [15].

[62] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121 at [190].

[63] Exhibit R1, Document HB3(a) [36] to [38] and orally at hearing.

[64] Direction no. 110 paragraph 8.3(1).

[65] Direction no. 110 paragraph 8.3(2).

[67] Direction no. 110, paragraph 8.4(1)-(2).

[68] Direction no. 110, paragraph 8.4(3).

[69] Direction no. 110, paragraphs 8.4(4)(a)-(h).

[71] Direction no. 110, paragraph 8.4(d).

[72] Direction no. 110, paragraph 8.4(a).

[73] Direction no. 110, paragraph 8.4(b).

[74] The Tribunal is also guided by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (2019) 272 FCR 454 and Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208, [86]-[87].

[75] Exhibit R1, Document HB3(a) [42].

[76] Direction no. 110, paragraph 8.5(2)(c).

[78] Migration Act, ss 189, 196, 197C, 198.

[79] Migration Act, s 501F.

[80] Migration Act, s 501E.

[81] Migration Act, s 503; Special Return Criteria 5001.

[82] Migration Act, s 15.

[83] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305, [112]-[122] to find the Applicant's detention had at all times been lawful.

[85] Exhibit R1, Document HB3(a) [58].

[86] Direction no. 110, para 8.1.1(1)(a).