The applicant's Class XB Subclass 202 Global Special Humanitarian visa is restored.

......................[sgd]..................................................

Migration Act 1958-cancellation of visa under s 501 (2) - character test - applicant does not pass the character test - exercise of discretion pursuant to s 501 (2) - reviewable decision set aside - the applicant's Class XB Subclass 202 Global Special Humanitarian visa ("the visa") restored.

FYBR v Minister for Home Affairs (2019) 272 FCR 454

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 185 ALD 335

Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396

Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582

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

In this matter the applicant seeks a review of a decision made by a delegate of the respondent Minister on 22 October 2025 cancelling the applicant's Class XB Subclass 202 Global Special Humanitarian visa ("the visa") under s 501 (2) of the _Migration Act 1958 (_Cth) ("the Act") ("the reviewable decision").

There was both documentary and oral evidence before the Tribunal.
The following witnesses gave oral evidence:

(a) The Applicant; > > (b) The Applicant's sister; > > (c) The applicant's brother; > > (d) The applicant's mother; and > > (e) Ms Cokorilo, a registered psychologist.

The documentary evidence comprised a hearing book ("HB") containing all the documents relied on by both parties.

Section 501 (2) of the Act provides as follows:

(2) The Minister may cancel a visa that has been granted to a person if:

(a) the Minister reasonably suspects that the person does not pass the character test; and

(b) the person does not satisfy the Minister that the person passes the character test.

As is evident from the language of s 501 (2) of the Act, two issues arise requiring determination by the Tribunal as follows:

(a) whether the applicant passes the character test; and if he does not, > > (b) whether the discretion to cancel the visa in s 501 (2) should be exercised.

The Applicant does not pass the character test. He does not do so by operation of s 501(6)(a) and s 501(7)(c) of the Act, as he has a substantial criminal record, having been sentenced to a term of imprisonment of 12 months or more. He was convicted in the District Court of South Australia on 5 November 2010 for one count of aggravated causing serious harm to another and sentenced to a term of imprisonment of 2 years and 9 months, with a non-parole period of 15 months.[1] Further, on 27 November 2013 he was convicted in the Magistrates' Court of Victoria at Sunshine of recklessly causing injury, indecent assault, affray (common-law), intentionally causing injury and failure to answer bail. He was sentenced to an aggregate term of 15 months imprisonment, to be served concurrently, with a non-parole period of 7 months.[2]

Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2A) of the Act, comply with a relevant direction.
In determining whether the discretion to cancel the visa in s 501 (2) should be exercised, the Tribunal as decision-maker is required to apply the provisions of the appropriate Ministerial Direction. Currently, the applicable direction that the Tribunal as decision-maker must apply, made by the Minister on 7 June 2024, is Direction No. 110 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA ('Direction 110').[3]
At the outset it is appropriate to refer to several of its provisions which guide decision-makers such as the Tribunal, and to note the considerations to be taken into account as articulated in Direction 110 when determining whether there is another reason why the decision to cancel the visa should be revoked. This overview is of course in no way exhaustive, and no substitute for careful consideration of the language used in each of its provisions. Several of those provisions warrant mention at this stage of the process.
Paragraph 4 "Interpretation" provides a definition of several expressions or terms that are referred to in the "primary" and "other" considerations that the Tribunal is obliged to apply.
Paragraph 5.1 "Objectives" articulates the objectives of the relevant provisions of the Act. Amongst other things, the objectives include:

(a) To regulate, in the national interest, the coming into, and the presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa; > > (b) Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision maker must consider the specific circumstances of the case in deciding whether to exercise that discretion; > > (c) The purpose of this Direction is to guide decision makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

Paragraph 5.2 "Principles" provides the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under s 501CA of the Act. These Principles include the following:

(d) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law-enforcement framework, and will not cause or threaten harm to individuals or the Australian community. > > (e) The safety of the Australian community is the highest priority of the Australian Government. > > (f) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia. > > (g) The Australian community expects that the Australian Government can and should cancel non-citizens visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. > > (h) 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. > > (i) 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 revoking a mandatory cancellation. > > (j) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify 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.

Paragraph 6 "Making a decision" provides that, informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 7 "Taking the relevant considerations into account" provides that:

(a) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. > > (b) 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. > > (c) One or more primary considerations may outweigh other primary considerations.

Paragraph 8 "Primary considerations", provides that in making a decision under, amongst others, s 501CA(4), the following are primary considerations:

(a) 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) expectations of the Australian community.

Paragraph 9 "Other considerations", provides that in making a decision under, amongst others, s 501CA(4), the considerations below must also be taken into account, where relevant. These considerations include (but are not limited to):

(a) legal consequences of the decision; > > (b) extent of impediments if removed; > > (c) impact on Australian business interests.

PARAGRAPH 8.1 OF DIRECTION 110 - PROTECTION OF THE AUSTRALIAN COMMUNITY

Paragraph 8.1(1) of Direction 110 provides that when considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that 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.
Paragraph 8.1(2) of Direction 110 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.

Paragraph 8.1.1 of Direction 110 - The nature and seriousness of the Applicant's conduct

Paragraph 8.1.1(1) of Direction 110 mandates that 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, amongst other things, the types of crimes or conduct viewed very seriously by the Australian Government and the Australian community include: > > > (i) violent and/or sexual crimes; > > > > (ii) crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed; and > > > > (iii) acts of family violence, regardless of whether there is a conviction for an offence or 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) 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; > > (c) with the exception of crimes or conduct mentioned in subparagraph (a) (ii), (a) (iii) or (b) (i) 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.

It should be observed at the outset when considering the applicant's offending that he has accepted the very serious nature of such offending.[4]
Details of the applicant's offending are contained in the National Criminal History Check.[5] His offending covers a timespan from early 2006 until October 2015. Apart from some traffic offences which included driving with a middle range prescribed concentration of alcohol, for which he was convicted and fined in 2015 in the New South Wales Local Court at Wagga Wagga, there have been no other offences recorded since he was sentenced in 2013 at the Sunshine Magistrates' Court referred to previously.
For the purposes of addressing this primary consideration concerning the applicant's offending, attention will be paid to the offences committed by him for which he was sentenced in the Sunshine Magistrates' Court in November 2013 and the District Court of South Australia in November 2010.
There was in evidence before the Tribunal a transcript of proceedings at the Sunshine Magistrates' Court on 27 November 2013.[6] As is customary in cases of this kind, where there has been a plea of guilty, a summary of the material facts was read by the police prosecutor to the presiding Magistrate.
The charges of indecent assault and recklessly causing injury for which the applicant was convicted and sentenced occurred on 28 July 2013.
The applicant attended an address in a suburb of Melbourne and had been drinking with his cousin and some of his cousin's friends. Also present at the gathering was the female victim. The female victim was sitting on a couch. The applicant then sat next to her. Once he had taken up that position, he moved closer to her and began touching her breasts which made her feel uncomfortable. She then told the applicant to stop, however, he continued touching her breasts and stomach area. The victim then got up from the couch and walked into an adjacent room to the garage.
The applicant followed the victim and then slapped her with his right hand to her face. He then picked up a Corona beer bottle and attempted to strike the victim on the head with it. The victim defended herself by raising her right arm above her head. The beer bottle broke when it struck the victim's arm causing her to sustain a laceration to the finger. After being struck with the beer bottle as described, the victim then attempted to walk away from the applicant and sought refuge in a nearby bedroom. He followed the victim to the bedroom and a further altercation occurred. The applicant grabbed the victim's breasts and attempted to place his hand under her waistline. She told him to go away. The applicant then punched the victim in the face causing one of her front teeth to come loose and fall out. Another tooth was pushed back towards her throat. The applicant then grabbed the victim by her hair pushing her to the ground before stepping on her. These acts caused the victim further injuries with some of her hair being pulled out. The applicant then left the house.
The next matter for which the applicant was sentenced at the Sunshine Magistrates' Court in November 2013 was for recklessly causing injury and intentionally causing injury, related to events that occurred some years beforehand on 26 June 2008.
The applicant and his victim were in the backyard of a residential property with several other men. A quantity of alcohol had been consumed by all those present. An argument developed between the applicant and his victim concerning money. During the argument the applicant picked up a garden stake that was lying in the backyard and assaulted the victim by hitting him on the top of his head with it. The victim suffered a gash of approximately 10 cm in length.
After being struck with the garden stake by the applicant as described, the victim ran into the house and was pursued by the applicant. When pursuing the victim, the applicant was still holding the garden stake. The victim continued running through the house followed by the applicant. They ran through the kitchen of the house. When doing so the applicant picked up a kitchen knife that was lying on a bench. They moved towards the front door and a further confrontation or altercation occurred. The applicant with the kitchen knife in his right hand in an overhead motion stabbed the victim once in the face. As a result, the victim received a deep cut to his cheek just below the right eye.
The offending that led to the applicant being convicted in the District Court of South Australia of one count of aggravated causing serious harm to another occurred on 12 January 2010.
The applicant and a co-offender were walking on a street both carrying wooden garden stakes. The victim had been talking on his mobile phone when he came into the orbit of the applicant and his co-accused. He was then set upon by them. The victim it would appear was struck with the garden stakes which caused him to suffer a head wound that was bleeding. The applicant took the victim's mobile phone and then he and his co-accused proceeded to continue walking along the street, and both appeared to be walking casually. An observant bystander noticed the applicant and his co-accused before the assault and afterwards. He called the police immediately. Additionally, the bystander followed the applicant for a distance then returned to the injured victim and described what he had observed to the police. The applicant and his co-accused were located and arrested shortly afterwards; the applicant was in possession of the victim's phone which had been stolen from him.
As observed by the trial judge, the applicant caused very serious injuries to his victim. Although the victim was conscious and oriented when admitted to hospital, a CT scan revealed that he had a left-sided extra dural haematoma and a small subarachnoid haematoma in the right temporal lobe. In short, there was bleeding into the space around his brain, a condition which can have fatal consequences. A later CT scan showed that the extra dural haematoma had grown in size. Consequently, the victim underwent an operation called a craniotomy, involving drilling through the skull to relieve the pressure caused by the bleeding into the space around the brain. The victim gradually recovered from this procedure and spent approximately one week in hospital. More will be said about the impact on the applicant's victim later in these reasons. However, it is appropriate to observe that as at the time of sentencing, almost 11 months after the incident, the victim had been unable to work consistently since then. This does highlight the gravity of the applicant's offending on that occasion.
The applicant's offending committed on 28 July 2013 were violent crimes as contemplated by paragraph 8.1.1 (1) (a) i of Direction 110. Additionally, such offending was a crime of a violent and sexual nature against a woman within the meaning of paragraph 8.1.1 (1) (a) ii of Direction 110. Such crimes are viewed by the Australian Government and the Australian community very seriously. It was criminal behaviour that was plainly unacceptable, uncalled for, unprovoked and simply outrageous. Striking a woman with a beer bottle causing it to break, punching her in the face so that one of her teeth came out and then pulling her by the hair so hard that it came out is nothing more than wanton violence and mindless thuggery. They were also unprovoked and wanton acts of violence against a victim who was clearly in a position of disadvantage physically to the applicant. He clearly sought to exploit this position of physical dominance that he had over her in a manner that is just plainly unacceptable. A disturbing feature of the applicant's offending on this occasion, which amplifies its seriousness in the view of the Tribunal, is that on several occasions the applicant's victim told him to stop and further made several efforts to escape from the applicant's presence. Notwithstanding these efforts on her part, the applicant continued to pursue her. It does not reflect well on the applicant whatsoever. There is no suggestion anywhere in the material or in any submissions made to the Tribunal that the applicant did not appreciate the seriousness and gravity of what he did on that occasion.
As for the crimes of recklessly causing injury and intentionally causing injury that occurred on 26 June 2008, that offending also constituted violent crimes within the meaning of paragraph 8.1.1 (1) (a) i of Direction 110. Once again, there is no suggestion that the applicant did not know what he was doing. He clearly did. It was hot-headed tempestuous behaviour that was not in any way called for. Resorting to the use of both a garden stake and a kitchen knife was a serious example of violent offending that was completely uncalled for and cannot be justified in any way. It is all the more disturbing in that his victim was attempting to escape from the applicant but was pursued and ultimately stabbed in the face. The potential for far more serious injuries to have been inflicted on his victim cannot be underestimated. The callous indifference for his victim on that day is remarkable and completely and utterly inexcusable. It is yet another example of the applicant's behaviour which falls within a category of crime viewed very seriously by the Australian Government and the Australian community. Understandably so.
The matter for which the applicant was sentenced in the District Court of South Australia in November 2010 was also a violent crime within the meaning of paragraph 8.1.1 (1) (a) i of Direction 110 and is viewed very seriously by the Australian Government and the Australian community. There are several observations that were made by the sentencing judge, with which the Tribunal completely agrees, in terms of categorising the nature and seriousness of the applicant's offending on this occasion. As the trial judge observed, it was a serious assault, causing very serious injuries to the victim. It was an unprovoked violent attack, and as the trial judge also noted, an impetuous decision to steal the victim's phone, once he and his phone had fallen to the ground, rather than theft being the motivation for the assault. It was, as the trial judge explained, a random act of violence perpetrated against an innocent hard-working man. He also stated, quite understandably, that the sentence must also reflect the public condemnation of such violent acts.
Another disturbing feature of the applicant's offending which occurred with respect to the matters for which he was sentenced in the Sunshine Magistrates' Court in November 2013 and the District Court of South Australia in November 2010 was that several of those offences involve the applicant having resort to the use of various weapons. They were a beer bottle, garden stakes and a knife. Apart from the opportunistic and tempestuous nature of such offending, it reveals a tendency or propensity on the applicant's part to seize upon any object that can be used as a weapon to inflict actual bodily harm on his victims. He clearly knew what he was doing, he clearly knew that it was wrong, but was quite prepared to resort to the use of such weapons knowing full well, as in fact occurred, that he would inflict significant and serious injuries on his victims. This tendency coupled with a callous indifference as to what he might do to his victims reflects poorly on him. It has had significant and serious consequences for those victims. It was simply deplorable conduct with an offensive weapon on each occasion concerned.

Relevant to a consideration of the nature and seriousness of the person's offending, paragraph 8.1.1 (c) of Direction 110 obliges the Tribunal to take into account the sentence imposed by the courts upon the applicant for the crimes he has committed.
Details of the sentences imposed on the applicant by both the Magistrates' Court of Victoria at Sunshine on 27 November 2013 and in the District Court of South Australia 5 November 2010 have already been provided above in the section concerning the applicant's offending.
The applicant on both those occasions was sentenced to 2 significant terms of imprisonment. To deprive a subject of their liberty is a significant, if not drastic step, for a sentencing court to take. As is frequently observed in matters of this type, the imposition of a custodial sentence is the last resort in the sentencing hierarchy. It is not taken lightly.
The maximum penalties for the offences committed by the applicant legislated by the Parliaments of the states concerned, namely Victoria and South Australia, also reflect the seriousness with which such offences are viewed by the legislature. For the South Australian offence of aggravated causing serious harm to another the maximum term prescribed by the South Australian legislature is imprisonment for 25 years. For the Victorian charge of intentionally causing serious injury the Victorian legislature has imposed a maximum sentence of 20 years imprisonment. His other Victorian crimes do carry significant maximum terms of imprisonment.
The observations of the sentencing judge in the District Court of South Australia on the question of sentencing are also highly relevant to this consideration. As already noted, he observed the sentence must also reflect the public condemnation of such violent acts. It is clearly in this setting, with this observation in mind, that both in the District Court of South Australia and the Magistrates' Court of Victoria that the significant terms of imprisonment were imposed. The Australian community denounces the type of offending engaged in by the applicant, it is plainly unacceptable and required the imposition of a significant custodial sentence.
There is another matter that arises in terms of the sentence imposed on the applicant for the offences he committed in January 2010. The sentencing judge observed that deterrence must play a significant role in the sentencing process. In terms of personal deterrence, he further recorded, and the Tribunal agrees, that the sentence must serve to impress upon him the need to eradicate that behaviour from his life from that point onwards. He also noted that the applicant was on bail for offences allegedly committed in Victoria at the time he committed the offences in January 2010. The sentencing judge considered this added to the need for the sentence to serve as a personal deterrent to him. Unfortunately, the sentence did not deter him from offending again, by way of committing an act of violence as he did against a woman in July 2013, as previously described.

Under paragraph 8.1.1(d) of Direction 110 the Tribunal is required to consider the impact of the offending on any victims, where information in this regard is available and procedural fairness has been given to the applicant.
The impact of the applicant's offending on his victims has already to some extent been canvassed above in the section headed "The applicant's offending".
There is limited information available to the Tribunal concerning the impact of the applicant's offending on any of his victims. The transcripts of the sentencing proceedings both in the Magistrates' Court of Victoria at Sunshine and the District Court of South Australia are the only source of information on this question. However, they do provide some information which indicates some impacts on the victim.
Concerning the events of 28 July 2013 there are the physical injuries suffered by the applicant's victim that have already been referred to. It will be recalled she sustained a laceration to her finger when struck by the beer bottle. Additionally, she suffered the injuries to her front teeth, including one falling out. Unquestionably, she would have required significant dental treatment to enable their restoration. This most likely would have been painful, inconvenient and expensive. The victim also suffered having her hair pulled out. The pain and suffering from these injuries cannot be underestimated. Whilst one can only speculate, there may well have been some residual psychological impacts upon her, as often arises from assaults of this nature. There seems little doubt that the experience would have been highly traumatic for the victim of the applicant's offending.
With respect to the events of 26 June 2008, once again, there is the evidence of the physical injuries suffered by the victim. There was the 10-centimetre gash to his head which almost inevitably would have required some form of medical treatment. Similarly, the deep cut sustained to the victim's cheek region just below the right eye, would also have inevitably required a reasonably high-level medical treatment. In addition to any stitches, or like treatment, there may well have been the necessity for plastic or reconstructive surgery with respect to any scarring that would almost inevitably have occurred. Some scarring may well have been permanent. They are significant injuries. Also, as with the applicant's other offending, there is possibility of psychological side-effects suffered by his victims. There is no evidence one way or another that enables the Tribunal to make a definitive finding on this question, however. Either way, it seems also that the experience suffered by the victim would have been traumatic to him.
The reasons of the sentencing judge in the District Court of South Australia in November 2010 provide more detail about the impact of the applicant's offending on his victim. The details outlined above concerning the injuries suffered by the victim and the treatment he underwent are referred to and repeated for the purposes of addressing this subparagraph of Direction 110.[7] Some further observations recorded by the sentencing judge should also be noted. He further observed that the applicant's offending had terrible consequences for the victim in terms of his physical and psychological injuries, his employment, his wife's employment and study, and their relationship with each other.
It was also observed that after being injured the victim's attempts to return to work were hampered by the fact that he easily became tired and continued to suffer psychological problems. This is understandable. Additionally, the financial difficulties experienced by the victim through not being able to work had placed an enormous strain on him and his wife. The sentencing judge described that his wife had been studying full-time, working part-time, and together they were surviving financially and working towards a happy future. Following the incident their finances fell into a terrible state. Further, the victim was always anxious about going out by himself and, from then on, he usually only went out if he was accompanied by his wife. He became far more isolated and found it impossible to seek out and obtain full-time employment. The sentencing judge concluded that the applicant's offending had a terrible impact on the victim and his family. One must completely concur with these observations. It would seem with respect to the victim of the applicant's offending in January 2010 that it is more probable than not that the impacts on him have been life altering. This must count significantly against the applicant.

The frequency of the applicant's offending and whether there is any trend of increasing seriousness

Paragraph 8.1.1(1)(e) of Direction 110 requires the Tribunal to consider the frequency of the applicant's offending and/or whether there is any trend of increasing seriousness.
Prior to his sentencing in the District Court of South Australia in November 2010, whilst the applicant had a number of convictions, predominantly for driving or traffic offences, there was not really a trend of increasing seriousness. The only offences that might be categorised as more serious than the driving or motor traffic offences, was a conviction in the Adelaide Magistrates' Court on 5 August 2008 where he was convicted and fined $150.00 for carrying an offensive weapon. The comparatively minor fine imposed would indicate that it was not a particularly serious example of such an offence.
Clearly, the matters for which he was sentenced in the District Court of South Australia on 5 November 2010 was a significant escalation or part of a trend of increasing seriousness. In terms of timing of course, the events of June 2008 occurred earlier than the matters to which the applicant was sentenced in November 2010. There was a significant delay in the prosecution for these offences being finalised. Then there were the events of July 2013. As is apparent from this analysis, there were three separate occasions where the applicant committed offences with a weapon that actually caused significant injuries to his victims. This does reveal a trend of increasing seriousness over a time span of five years.
On the question of a trend of increasing seriousness of the applicant's offending, it is a concern that having received and served a significant term of imprisonment following the offences he committed in January 2010, upon his release he committed the dreadful assault on his female victim in July 2013. One would have thought, following the significant term of imprisonment and the observations made by the sentencing judge in the District Court of South Australia in November 2010, that he might have taken heed of those observations, reflected carefully on his position and taken positive steps to avoid reoffending. In short, he did not learn his lesson. To this extent the Tribunal considers that the offences he committed on 28 July 2013 reflected until that time a trend of increasing seriousness.
However, one should observe that since being sentenced in 2013 apart from some convictions for motor traffic offences in the Wagga Wagga Local Court of New South Wales he has not reoffended. Certainly, since 2013 he has not in any way engaged in violent offences. More will be said about this later in these reasons.

Paragraph 8.1.1 (1) (f) of Direction 110 requires the Tribunal as decision-maker to have regard to the cumulative effect of repeated offending on the part of the applicant. It is difficult to assess the cumulative effect of repeated offending in many instances because there is limited evidence before the Tribunal to enable it to undertake such an assessment. However, it has to do its best on the material before it.
Apart from the injuries suffered by the applicant's victims, which have been catalogued earlier in these reasons, there are several other impacts that can reasonably be identified.
Each of the applicant's victims of his violent offending for which he was sentenced in the Magistrates' Court of Victoria in November 2013 and the District Court of South Australia in November 2010 required various forms of medical treatment. Apart from what out-of-pocket expenses for such treatment his victims would have incurred, there would inevitably have been the imposition on the healthcare system, be it the public system or the private system. This is a direct effect. Additionally, there was the involvement of the ambulance services, certainly with respect to the offences that occurred in January 2010 in South Australia. It is well-known that ambulance services throughout Australia are in heavy demand. One can only speculate that if for instance, another deserving patient was denied urgent ambulance attention because the nearest ambulance was engaged in treating and transporting his victim, it would be an adverse cumulative effect.
Another cumulative effect of the applicant's offending arises from the application of police, prosecutorial, court and corrective services in the criminal justice system. This is all borne by the long-suffering taxpayer and is all a direct result of the applicant's offences. It must also count against him.

Whether the applicant has reoffended since being formally warned, or since otherwise been made aware, in writing, about the consequences of further offending in terms of his migration status

Paragraph 8.1.1 (1) (h) of Direction 110 requires the Tribunal as decision-maker in considering the nature and seriousness of the applicant's criminal offending to have regard to whether he has reoffended since being formally warned, since otherwise been made aware, in writing, about the consequences of further offending in terms of his migration status.
The offences committed by him on 28 July 2013 occurred after he had received a letter from a delegate of the respondent on 7 April 2011 informing him of a decision not to cancel the visa under section 501 of the Act.[8] That letter also contained a clear and unequivocal warning that visa cancellation may be reconsidered if he committed further offences, or otherwise breached the character test in the future. The letter from the delegate also stated that disregard of the warning would weigh heavily against him if his case were reconsidered. Critically, the applicant signed a written acknowledgement that he had received the notice of decision not to cancel the visa, and that further, he understood that he could be again considered for refusal or cancellation of any visa granted to him if further information of relevance came to the attention of the Department at any time in the future, and if that happened, his past conduct and previous relevant information could also be reconsidered.
There is little doubt that the applicant well understood the warning that he had been given. That he offended after such a loud and clear warning was given to him does not reflect well upon him and must also count against him.
It should also be observed that another Notice of intention to Consider Cancellation of Visa was sent to the applicant on 17 November 2014.[9] It was not altogether clear whether driving offences committed by the applicant for which he was convicted in the Local Court at Wagga Wagga in New South Wales in October 2015 occurred after that warning was served on him. In the absence of definitive evidence answering this question, the Tribunal is not prepared to find that he so committed such offences after that warning had been given to him.

Paragraph 8.1.2 of Direction 110 - The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

Paragraph 8.1.2(1) of Direction 110 provides that 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.
Paragraph 8.1.2(2) of Direction 110 provides that 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 non-citizen reoffending; 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).

Nature of the harm to individuals or the Australian community

Paragraph 8.1.1(2) of Direction 110 requires the Tribunal to have regard to, amongst other things, the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct.
It seems more probable than not that the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct, would be of a similar nature to that which occurred when he committed the several acts of violence as recounted earlier in these reasons in June 2008, January 2010 and July 2013 for which he was sentenced to terms of imprisonment.
Were the applicant to reoffend in the way that he did on those occasions, there must be a risk of physical injury to his victims, psychological or mental health ramifications and potentially financial harm, as was the case with the victim of his offending in January 2010. It will be recalled that the victim of his January 2010 offending was unable to work for a long time. There is of course also the financial harm caused to victims that arises from the need to access medical attention and treatment. In this setting the Australian community may also incur some harm if the public health care system treats any of the applicant's future victims. Should his victims have private health insurance those insurers will also be exposed to meeting the costs of any medical treatment that is necessary as a result of injuries that might be sustained by the applicant's victims were he to reoffend again.
Another category of harm to the Australian community which should not be underestimated arises from the application of the resources of police, prosecutorial authorities and correctional agencies. At the end of the day these resources will be diverted. One can only speculate if such diversion did not occur whether they could be more productively or effectively applied. It is well-known that the costs to the taxpayer of keeping a person in custody are extremely expensive.
In the context of harm, if the applicant were to reoffend along the lines of his most recent offending, reference should also be made to the potential demands on the criminal compensation schemes accessible by victims of crime throughout Australia's states and territories. This is another significant financial burden that is imposed on the taxpayer because of criminal offending.

The likelihood of the applicant engaging in further criminal or other serious conduct

In assessing the likelihood of the applicant engaging in further criminal or other serious conduct he relies on several matters.
The applicant contends that there is very strong evidence establishing reform and rehabilitation on his part. This evidence comes from a variety of sources. There was the applicant's own evidence about which more will be said later. He was a candid witness. There was the evidence of his brother and sister who the Tribunal found to be very impressive, truthful and helpful witnesses. Their evidence was given in a way that was not exaggerated, embellished or reconstructed. Evidence in a similar vein was given by the applicant's mother. She presented as a decent woman who has been presented with a series of significant challenges throughout her life. At all times she has sought to improve the lot of her and her children in every way she can. Her evidence about how the applicant has become a responsible and mature adult is not in any way subject to doubt. To a significant extent, these efforts and devotion to her children was reflected particularly in the calibre of evidence given by the applicant's brother and sister.
Another ground, quite understandably, relied upon by the applicant as establishing that he has reformed and rehabilitated is that he has not offended for well in excess of 10 years. The Tribunal agrees that this is a powerful argument in his favour in terms of establishing this fact. This contention is also buttressed by the fact that since his release from the last period of imprisonment he has worked continuously and contributed to his family responsibly both in a financial and physical sense.
Additionally, the applicant relied upon the evidence of the psychologist Ms Corkorilo. There was both the contents of her report and the evidence she gave at the hearing of the application. More will be said about that later. However, the Tribunal found Ms Corkorilo to be an extremely impressive witness. She understood her role was to assist the Tribunal not to be an advocate for the party who had retained and called her. Her conclusions do support a finding that the applicant has genuinely rehabilitated and reformed and is a low risk of reoffending.
When imprisoned on the last occasion the applicant's evidence was that he reflected deeply on his actions and the predicament that they had placed him in. The consequences of his offending were also the subject of considerable introspection. Critically, for the purposes of this application, the applicant in his evidence stated that he recognised contributing factors to his offending were alcohol abuse or excess alcohol consumption, which frequently arose when he associated with a group or circle of people who frequently consumed large quantities of alcohol. He stated that he felt it was the best thing to leave alcohol alone and stay away from people who regularly drink. Additionally, he recognised that his behaviour had led to his relationship with both his family and his daughter becoming more distant. He was determined to restore a meaningful relationship with them all. It appears that he has done so. The Tribunal accepts this evidence from the applicant and considers that it was genuinely given.
The applicant availed himself of the opportunity to partake in courses in anger management and alcohol awareness. He was unable to recall the precise details of these courses as they occurred many years ago. However, he recalls that he was obliged to undertake those courses as part of his prison sentence. In the reasons for sentence at the Sunshine Magistrates' Court in November 2013 reference was made to the applicant completing two courses at the Melbourne Remand Centre, including a communications skills program. The courses were, the applicant stated, of significant benefit to him and assisted him on the pathway of rehabilitation. Additionally, whilst in custody on the last occasion the applicant undertook several vocational courses including bricklaying and a railway course which prepared him for his subsequent release. He has since his release attempted to obtain further skills and qualifications to assist with his employment prospects. He has done a course in handling dangerous goods and obtained computer skills. The Tribunal accepts this evidence from the applicant. It is apparent that since his release from custody on the last occasion he has moderated his alcohol consumption significantly. This must count in his favour.
He also highlights that he has been in the community for over 10 years without reoffending. Further, he observes that he has consistently held down meaningful employment which has enabled him to support his mother, growing daughter and relatively newborn son.
Mr Oates, a Store Manager of the applicant's employer Redox, an Australian chemical supply company, prepared a written reference of 8 January 2026.[10] He attested to the applicant's qualities as an employee, which it is fair to say he described in very impressive terms. Amongst qualities he identified in the applicant were his good character, reliability and positive contribution to the workplace community. Additionally, he identified the applicant as carrying out his duties with professionalism and dedication. He described the applicant as being punctual, responsible and taking genuine pride in his work, with a strong sense of commitment and accountability. Mr Oates explained that if the applicant is released into the community his job is being held for him. He also attested, based on his experience with the applicant, he is a stable and engaged member of the community. He supported his continuing participation in the Redox workplace and the broader community. One would have to say it was an impressive reference.
The applicant's sister, who the Tribunal noted earlier was an impressive witness, gave comparatively extensive evidence about her observations of the changes that the applicant has undergone since his release from the last term of imprisonment. His sister had a reasonably good knowledge of the applicant's history of offending. She described him as making a number of positive improvements in his life by demonstrating better choices and better ways. She also explained that he has matured during that time. Qualities of stability, responsibility and appropriate behaviour were described by her as now being possessed by the applicant to her knowledge and from her observation. An observation that she also made was that during the period that the applicant was offending he tended to keep things to himself whereas now he does speak to her, his mother and his siblings if there are matters of concern to him. This gives them the opportunity to communicate with him and offer support and guidance where necessary. Another factor identified by the applicant's sister in her evidence was the positive aspects of his current relationship with the mother of his infant son. She said that relationship had been a catalyst for positive change on the applicant's part. Another feature of the applicant sister's evidence was the support that the applicant has given to his mother, which was described in various ways by her, but was of much assistance both to his mother and to his siblings, as it meant the burden of supporting their mother is shared amongst them more equally. With the applicant's other siblings residing in Perth, the applicant being with their mother in Adelaide has been of unquestionable benefit she stated. Another aspect of the applicant's maturity that his sister identified related to what she described as peer group influences. Arriving in Australia without their father meant that in those early years here the applicant did not have an older male influence that could guide him, and he could listen to. She observed that he did associate with people who were not the best influence on him. However, she stated he now seems to have severed ties with peer groups that were detrimental to him and frequently associated with his past offending.
The applicant's brother, who was similarly an impressive and candid witness, described what he had observed of the applicant's endeavours to reform and rehabilitate. He contended that the applicant since his release from the last occasion in prison realised the mistakes he had made and that what he had done was wrong. He expressed the view that the applicant is deeply remorseful for his offending. The applicant, he explained was trying to focus on improving himself and had done so both in his relationships with his immediate family members and by committing himself to work. He echoed his sister's sentiments about the invaluable support that the applicant has provided to their mother since he returned to Adelaide and commenced living with her. It was confirmed by him that the applicant was paying the rent on the premises occupied by the applicant and his mother. Prior to the applicant returning to Adelaide to live with their mother the siblings shared the rent payments for their mother's premises. With the applicant taking on this commitment he explained that it reduced the financial burden that they had faced given that they have families of their own to support. Additionally, he corroborated the evidence given by others that the applicant provided a wide range of support for his mother, apart from paying the rent, including taking her shopping, undertaking various household chores and paying for other items of household expenditure.
The applicant's mother was aware of his offending. He has discussed it with her and the mistakes that he has made. She considers that the applicant has understood the seriousness of what he did and has learned as a result of it. Additionally, she stated that the applicant has expressed his sorrow for what he did. Prior discussions with the applicant and observations of him led her to express the view that she did not think he would reoffend. The Tribunal accepts this evidence from her. She confirmed the details outlined earlier about the financial and other support that the applicant has provided to her since he returned to Adelaide and lived with her. It was emphasised by the applicant's mother that her other children have been unable to assist her the way the applicant did when he was living with her because they live in Perth. She also mentioned that her health has significantly deteriorated recently, just after the applicant was taken into immigration detention, and she is being treated as an outpatient at the Flinders Medical Centre. This requires her to attend that hospital weekly. This has proven difficult for her without the applicant, and it is her hope that he would be permitted to return to live with her and provide her with assistance, including amongst other things, attending necessary medical appointments. His mother also stated that when she fell ill late last year and required hospitalisation a daughter came from Perth for a few days to provide assistance. However, this was a significant burden upon her and realistically she cannot expect them to be able to assist very often, certainly not in the way that the applicant could.
Another critically important body of evidence concerning the risk of the applicant reoffending arises from the evidence of the psychologist Ms Cokorilo. She prepared a report of 6 January 2026.[11] The contents of that report are referred to in its entirety for their full force and effect.
In her report in the section entitled "Risk Assessment", Ms Cokorilo considered several matters that were relevant to undertaking an assessment of the likelihood of the applicant reoffending. She observed that the applicant's offending history included violent and non-violent offences that occurred over an 11-year period which coincided with significant alcohol abuse and severe depression. She further observed that despite its seriousness, his offending did not appear to reflect a pattern of persistent, versatile, or escalating criminal behaviour. She observed that notably, the applicant has remained offence-free for 10 years living in the community without supervision, and there is no evidence of any association with antisocial peers or engagement in high-risk leisure activities. She further opined that the applicant's period of desistance, which reportedly coincided with sustained reduction in alcohol consumption and remission of depression, is a significant protective factor, strongly associated in the empirical literature with reduced likelihood of future offending.
Ms Cokorilo further explained in her report that she administered a structured professional judgement risk assessment tool "Historical, Clinical, Risk Management-Third Edition (HCR-20: V3)" which is used to evaluate an offender's risk of future violent reoffending, which was utilised to consider the applicant's actual risk of violent recidivism. Whilst the section of her report speaks for itself, there are several parts that should be reproduced for the purposes of these reasons.
Several historical factors were identified by Ms Cokorilo as relevant to the applicant. They included exposure to severe developmental trauma in his history of alcohol-related reactive violence. However, she observed these factors were weighed against by the absence of violence in custodial settings, the lack of recurrent violent behaviour across contexts, and the prolonged period without further violent offending.
In terms of risk management considerations, Ms Cokorilo observed the applicant had demonstrated the capacity to maintain behavioural stability through structured routine, employment, family engagement and sustained moderation of alcohol use, even in the absence of formal interventions. She opined that such factors operate as meaningful protective mechanisms.
Ms Cokorilo concluded therefore, on balance, and with appropriate qualification, the applicant's current risk of general and violent recidivism was assessed by her as low, provided that existing protective factors are maintained and relapse into problematic alcohol use is avoided. She further opined that the applicant's risk is best conceptualised as conditional and context-dependent, rather than pervasive or ongoing.
There are some other parts of Ms Cokorilo's report that warrant mention. In a later section entitled "Psychological Formulation Relevant to Risk" there were several observations made by her.
In that section, she observed that the applicant had previously been diagnosed with Post-Traumatic Stress Disorder ("PTSD") and severe depression and described a history of PTSD symptoms persisting into early adulthood, followed by recurrent episodes of depression and anxiety. Ms Cokorilo observed that the applicant's violent offending occurred during a discrete period of early adulthood and was temporarily associated with the presence of Alcohol Use Disorder.
It was then observed by Ms Cokorilo that since his last term of incarceration, the applicant has demonstrated a sustained period of behavioural stability, including significant reduction in alcohol consumption, absence of further offending, stable employment, and engagement in prosocial adult roles. From a psychological perspective, she observed this trajectory is consistent with desistance through behavioural regulation and environmental stability, rather than through formal therapeutic intervention. She also noted that whilst the applicant's reflective insight into the broader interpersonal impact of his offending remains partial, his functional insight into key risk factors, particularly alcohol use, appears sufficient to support ongoing self-regulation under stable conditions.
Ms Cokorilo concluded that section of her report by stating that overall, the applicant's behavioural trajectory over the past 10 years is consistent with rehabilitation through lifestyle stabilisation and risk factor reduction, rather than through formal intervention. In this context, she considered his recent trajectory supports a conclusion that his past conduct is not representative of characterological orientation.
Finally, in the section of her report entitled "Opinion summary", amongst other things, she stated that the applicant's 10-year period of desistance coincides with marked reduction in alcohol use and remission of psychopathology, supported by stable employment and engagement in prosocial adult roles. This trajectory she opined is consistent with sustained positive behavioural change and substantially reduced risk. She then stated his current risk to the Australian community is assessed to be low, conditional upon maintenance of sobriety and psychosocial stability.
When giving her evidence at the hearing of the application Ms Cokorilo was probed both in evidence-in-chief and cross-examination about certain aspects of her report and the risks of the applicant reoffending.
Ms Cokorilo reiterated that one of the recognised factors determining an assessment of the risk of someone reoffending is that the longer they are in the community without offending the less likely are they to reoffend. In the case of the applicant, he has been offence free for over 10 years and this is indicative of him being less likely to reoffend.
The absence of formal interventions or treatment was probed with Ms Cokorilo. Whilst she did not quarrel with the suggestion that formal interventions or treatment would assist the applicant, she nonetheless stated that the applicant in the absence of treatment, but through lifestyle and behaviour changes had demonstrated that there were protective factors in place, which will also be indicative of him being a lower risk of reoffending. He had achieved partial rehabilitation without assistance.
In response to other questions Ms Cokorilo reiterated the opinion expressed in her report that the applicant did not exhibit signs of any antisocial personality disorder. That was in her opinion a factor relevant in assessing the risk of him reoffending which she reiterated was in her opinion low.
The question of the applicant suffering mental health conditions including anxiety and depression were explored with Ms Cokorilo particularly during cross-examination. She was asked whether it concerns her that such conditions are described as severe, but the applicant has not undergone any treatment. She readily conceded that he would certainly benefit from treatment. However, she acknowledged that because of the behavioural management steps that the applicant has adopted, particularly limiting his consumption of alcohol, he appears to be able to sustain himself and reduce risk. Once again, she readily conceded that if the applicant did undertake an appropriate form of treatment, it would reduce the risk and likelihood of relapsing into unsafe levels of alcohol consumption.
The applicant's present level of alcohol consumption was explored with Ms Cokorilo in cross-examination; as indeed it had been with the applicant when he gave evidence. His evidence was to the effect that he now drinks infrequently, once a month or so, usually 6 stubbies of regular strength beer. Ms Cokorilo in cross-examination was referred to the portion of her report where she recorded the applicant informing her that he drank a six-pack of beer on the weekend. She cross-checked this with her clinical notes and stated that what the applicant told her was what she had written down in her report. She expressed that beverages over a weekend was not considered to be a substance use disorder. She readily conceded that total abstinence on the part of the applicant would be preferable. However, she stated that from a risk assessment perspective the levels of alcohol consumption he reported was not concerning given that the applicant has modified his behaviour as previously mentioned.
Another matter explored with Ms Cokorilo in cross-examination concern several potential stressors on the applicant and whether they may increase the risk of him reoffending. They included significant financial demands in supporting himself, his mother, his daughter, partner and son. Another stressor identified was potential unstable accommodation. Ms Cokorilo explained that the ability to deal with stress and deal with various pressures one experiences in life involves many factors, not all of which will lead to an increased risk of recidivism. She acknowledged that such stressors could potentially contribute to psychological destabilisation, but in undertaking such an assessment they also have to be weighed against protective factors and other resources that she had identified, both earlier in her oral evidence, and in her report.
The Tribunal accepts the evidence of Ms Cokorilo in its entirety. She was, as previously noted, a most impressive witness who carefully and logically explained why she reached the conclusion that the applicant is a low risk of reoffending.
When one assembles all the evidence adduced before the Tribunal it concludes that the applicant is a low risk of reoffending. Also, the Tribunal concludes that the applicant has genuinely rehabilitated and reformed. It reaches its conclusion for several reasons. Significantly, he has not offended for more than 10 years. This is clearly a very positive sign. He must be given the benefit of this. The evidence of the applicant, along with that of his siblings and his mother about the positive changes that they have observed in the applicant, is accepted. The evidence they gave that the applicant has recognised what he did was wrong and resolved to make the appropriate choices in his life so that he does not reoffend is also accepted. There is the evidence of the applicant that with maturity he has recognised factors that led him down the pathway of offending and has resolved not to go that way again. There is of course the extremely satisfactory employment history of the applicant, as corroborated by amongst others, his employer Mr Oates of Redox. Finally, of course there is the evidence of Ms Cokorilo both in her report and from the witness box which the Tribunal has accepted.

Conclusions on primary consideration 8.1 of Direction 110

The Tribunal must now turn to consider what weight to attach to this primary consideration.
There are several paragraphs of Direction 110 that guide the Tribunal as decision-maker in undertaking such an assessment. Paragraph 5.2 "Principles" subparagraph (2) specifies that the safety of the Australian Community is the highest priority of the Australian Government. Further, under paragraph 7 of that Direction "Taking the relevant considerations into account", this primary consideration being the protection of the Australian community, is generally to be given greater weight than other primary considerations. However, it does confer a discretion on the Tribunal which must be properly exercised after it has considered all the evidence before it.
The respondent contends that the applicant's history of offending, which was of a very serious nature, and for other reasons including that the applicant has not undertaken any psychiatric, psychological or medical treatment with respect to his mental health conditions, together with the provision in Direction 110 that this primary consideration is generally to be given greater weight than other primary considerations, collectively mean that heavy weight in favour of affirming the reviewable decision should be applied.
The applicant on the other hand urges the Tribunal to adopt a different approach and contends that the protection of the Australian community does not require the cancellation of the applicant's visa. Emphasis was placed in submissions on his behalf on the fact that he has not reoffended for over 10 years, he has clearly reformed and rehabilitated, and there is no suggestion or proper foundation to contend that he is liable to reoffend in the future and therefore this consideration should not weigh against him.
In undertaking the assessment of the weight to be attached to this primary consideration, it must be observed that it is a comparatively unusual fact situation in that, as the applicant contends, he has been released into the community and are not offended for in excess of 10 years. The Tribunal has found, for the reasons explained above, that he has genuinely reformed and rehabilitated. He has had a good work history as was attested to by the letter of support from Mr Oates. There was the evidence of how the applicant has financially supported not only himself but his daughter, his mother and his current partner. In short, he has been a responsible member of society for many years. Also, for the reasons explained, the Tribunal accepts that he is a low risk of reoffending.
Notwithstanding that the applicant's offending occurred many years ago, the matters for which he was sentenced in the District Court of South Australia in 2010 and in the Magistrates' Court of Victoria in 2013 were serious offences.
Were the applicant still in custody for these offences, or had he been immediately taken into immigration detention after the expiration of his term of imprisonment for them, one might have been inclined to attach heavy weight to this primary consideration in favour of cancellation of the visa. However, given the evidence of reform and rehabilitation on the part of the applicant, that he has not offended for over 10 years, that he has been a responsible member of society with gainful employment and is a low risk of reoffending, in all circumstances the Tribunal considers that very limited weight should attach to this primary consideration in favour of cancellation of the visa.

Primary consideration 8.2 of Direction 110 - Family violence committed by the non-citizen

Paragraph 8.2(1) of Direction 110 provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph 8.2(3)).
Paragraph 8.2(2) of Direction 110 provides that this consideration is relevant in circumstances where:

a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or > > b) there is information or evidence of independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

Paragraph 8.2(3) provides that in considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:

a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness; > > b) the cumulative effect of repeated acts of family violence; > > c) rehabilitation achieved at time of decision since the person's last known act of family violence, including: > > 1. the extent to which the person accepts responsibility for their family violence related conduct; > 2. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children); > 3. efforts to address factors which contributed to their conduct.

The respondent contended that there was some evidence before the Tribunal enabling it to reach a conclusion that the applicant had committed acts of family violence. The Tribunal was taken to several entries contained in Victoria Police "LEAP" database. These documents were produced by Victoria Police in response to a summons served on it to produce documents by the respondent. It was contended that these entries in such database were in effect business records kept by Victoria Police in the course of, or for the purposes of its activities, such as might be contemplated by s 69 of the Uniform Evidence Acts and could be relied upon as proof of their contents. The entries were made by police officers carrying out their duties and were, therefore inherently reliable.
There were no other documents produced by Victoria Police which in any way evidenced or established that acts of family violence have been engaged in by the applicant. Documents that one frequently sees in such a setting. For instance, there were no copies of orders made by a Magistrate to such effect. There was not, as is often seen in cases of this type, a statement of material facts prepared by the police informant. Additionally, there were not produced any witness statements by affected family members or other persons who may have seen or been subject to the alleged acts of family violence relied upon. This vacuum in the evidentiary trail is of much concern.
The Tribunal is unable to accept these submissions on the part of the respondent concerning what inferences or findings of fact can be made from the entries contained in the Victoria Police LEAP database. There are several reasons for this. Several of the entries were quite difficult to read and comprehend. For instance, in several of the entries the applicant was recorded as the affected family member. On other occasions there were persons who appear to be the perpetrator who were neither the applicant nor anyone related to him. Another concern is that although reference was made in several of the entries to a domestic violence order being made, it does not say how it was made, nor clearly indicate that it was so made against the applicant.
The applicant, to his credit admitted there had been some proceedings but, understandably, he could not shed any light on it. According to him, this was because of some difficulty in having contact or access to his daughter for some time which was resolved, apparently a while ago. He steadfastly denied that he had committed any acts of family violence against his partner. This evidence is accepted by the Tribunal. Additionally, whilst giving her evidence Ms Cokorilo was probed on the question. She stated that the applicant denied any instances of family violence in either of his relationships. Ms Cokorilo also recorded that the applicant acknowledged there was an intervention order concerning the mother of his daughter but was adamant he had not breached it.
As the Tribunal noted in an exchange with both counsel, it is very commonplace for an apprehended violence order to be made by consent without any admissions. If so, the Tribunal cannot conclude that the applicant has engaged in any act of family violence as contemplated by this paragraph of Direction 110. Had the extract of the court register produced by the Registrar of the Magistrates' Court who made the order been produced this important question would have been answered. On occasion domestic violence orders are made, for good reason, on the application of the police without any direct first-hand evidence of specific acts being committed by defendant. It may arise, for instance where police are called on the emergency services '000' number and attend at domestic premises and conclude that someone may be at risk. This may occur even though the complainant requested no further police action be taken. In these circumstances, there are just too many uncertain and unanswered questions arising from a consideration of the entries in the LEAP database of Victoria Police, to permit them to be relied upon to make a finding that the applicant committed acts of family violence.
At the conclusion of the applicant's evidence, Mr Daly indicated that the respondent was proposing to call a witness who might have been able to give evidence about allegations of domestic violence committed by the applicant. The Tribunal was not prepared to allow this to occur to several reasons. Firstly, without knowing what precise evidence that witness would give, the substance of such evidence and allegations were not put to the applicant when he was in the witness box. Mr Daly could not precisely identify what evidence would be given by that witness. This would be a denial of procedural fairness as the applicant simply would not have the opportunity to respond to them. It would still be problematic even if leave was given to the applicant to be recalled. Secondly, it is putting the Tribunal in a position of having to conduct some kind of mini-trial of the matter that should be heard in another court. Thirdly, if there were any subsequent criminal proceedings arising with respect to the same subject matter, any evidence adduced before the Tribunal could be admitted in that hearing. For instance, if there were a prior inconsistent statement. Finally, the Tribunal considered that it would potentially jeopardise or prejudice any future criminal proceedings that might be taken in a court.
In any event, for the reasons explained, if the Uniform Evidence Act were being applied, the Tribunal would exercise the general discretion in s 136 of that Act to exclude such evidence from the LEAP database in this instance on the grounds that the probative value of such evidence, if any, is substantially outweighed by the danger that it might be unfairly prejudicial to the applicant or be misleading or confusing.
Therefore, having reached the conclusion it has not been established that the applicant has committed any acts of family violence, no weight will be placed by the Tribunal on this primary consideration.

Primary consideration 8.3 of Direction 110 - The strength, nature, and duration of ties to Australia

Paragraph 8.3 of Direction 110 provides as follows:
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: > > 1. less weight should be given where the non-citizen began offending soon after arriving in Australia; and > 2. more weight should be given to the 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.

The applicant arrived in Australia in 2004 with his mother and 3 siblings, when he was 17 years of age.
He has the following immediate family members present in Australia:

(a) His partner, who presently lives in Melbourne with their son, she also has 3 teenage children from a previous relationship; > > (b) His son, who lives with his mother in Melbourne; > > (c) His daughter, who lives in Melbourne with her mother; > > (d) His mother, who resides in Adelaide; > > (e) His brother, who resides in Western Australia with his wife and 3 children; > > (f) His sister, who resides in Western Australia with her husband and 4 children;

Additionally, there is a paternal uncle and 2 cousins who live in Adelaide. When the applicant and his siblings travelled to Australia they came with them. It appears that the applicant's relationship with them is reasonably strong and well-established.
Although the direct contact between the applicant and his siblings is relatively infrequent because they live interstate, the evidence from all of them is that their relationship is reasonably close. It also appears that since the applicant's release from his last term of imprisonment, the relationship between him and his siblings has grown stronger as he has tried very hard to rehabilitate and reform. It was apparent from the evidence that part of this process of rehabilitation included positive and constructive steps taken by both him and his siblings to restore the relationship to a very positive level. Additionally, it seems that some of the motivation for this to occur was a desire on the part of both the applicant and his siblings to restore their relationship to the strongest possible level in the interests of their mother, to whom it is apparent that they are all very much devoted. They are clearly very grateful to her for being able to bring them to Australia and rebuild their lives after the very difficult circumstances they found themselves in, both in Sudan, and later on in the refugee camps in Kenya.
The applicant returned to live in Adelaide with his mother in 2023 who it will be recalled is a widow. This was about the time when his mother stopped working due to concerns that she might fall or injure herself at work. Her health has deteriorated over that time. He is her only child living in Adelaide. Since his return to Adelaide to live with his mother the applicant has supported her in several ways. He has provided financial support, and has to a large extent, been her carer during that time. It was revealed in the evidence that, amongst other things, the applicant since his return to Adelaide, and living with his mother, has assisted her with household chores such as lawn mowing, financial matters including paying bills, rental from time to time and other expenses for her, shopping, transport, taking her to church, and what is described as emotional support. Most of his mother's medication was paid for by him as she had difficulty paying for all of it because some of her necessary medication was too expensive for her. The Tribunal accepts that prior to the applicant being taken into immigration detention his mother was highly dependent upon him. It also accepts that since his return to Adelaide and living with his mother he has been a devoted and dutiful son.
In November 2025 the applicant's mother's health further declined. The evidence was that the applicant cared for her at that time. When the applicant was taken into immigration detention it appears it was extremely distressing for his mother. It coincided with her suffering a significant health breakdown which required her to be taken to hospital where she was subsequently admitted to the intensive care unit. She was diagnosed with a rare blood disorder known as Thrombotic Thrombocytopenic Purpura. His mother will require frequent and continuing future medical treatment. This will involve regular blood tests and medical appointments. Without an immediate family member nearby, or with her to assist, she will face significant difficulties in being able to avail herself of such necessary treatment. It appears that this condition is not curable and that she will continue to experience significant bouts of ill-health in the future. The applicant's siblings live interstate, in Perth. Due to the distance, and the fact that they are raising families of their own, it is extremely difficult for them to regularly travel to Adelaide to be with their mother and provide assistance to her. The logical reality is that the applicant is the best placed individual to provide care and support for her in the future. This is particularly so given that the applicant's siblings, as noted, reside interstate and cannot regularly be with her.
When addressing this primary consideration, it is appropriate to acknowledge the applicant's work history. He left school after completing year 11 at an Adelaide high school. He initially worked as a carpenter and then qualified as a welder. He worked in that capacity for some years. He had subsequent work as a meat slicer at the Brooklyn Meat Processors. A written reference from his supervisor at that company attested to his qualities as a reliable and hard-working member of its staff.[12] He has had other positions as a meat slicer, brick layer, labourer in the building and other industries, a storeman, driving a container carrier and a forklift driver. On his return to Adelaide he has, as noted earlier, worked with Redox where he is a valued employee. Apart from his times in custody, the applicant to his credit has always been able to find meaningful employment. This is recognised by the Tribunal when determining what weight to attach to this primary consideration.
Apart from the impact on the applicant's mother if the applicant were removed from Australia, in terms of her reliance on him for financial support and as a carer, it is apparent that it would cause her very significant emotional distress. Whilst it is to some extent speculative, one can well imagine that such an event might well accelerate the deterioration in her health, and almost certainly affect her mental health. The applicant deposed that when he was taken into immigration detention his mother in effect collapsed from the distress she experienced as a result of it. One can well imagine it would have been a highly distressing event for her, particularly so in the context of the applicant having not offended again for more than 10 years.
The applicant contends quite understandably, that his removal would be deeply distressing not only for his mother, but also for his siblings given the family history of losing their father, then leaving war-torn Sudan for Kenya, and eventually resettling in Australia. He contends, in effect, it is a unique family history which is a factor that should be taken account in assessing the impact of his removal.
If the applicant is removed from Australia, it also will have a significant impact on the applicant's present partner and his two minor children. Insofar as there are impacts on his minor children this primary consideration does to some extent overlap with that contained in paragraph 8.4 of Direction 110, "Best interests of minor children in Australia affected by the decision."
His current partner would then be left with having to raise their infant son, (not to mention the 3 teenage children she has from another relationship), from an extremely young age on her own, and probably without any financial support from the applicant, particularly if he were removed to Sudan, let alone a third country. This would be particularly challenging for her, and no doubt a significant impact both on her and her infant child. It cannot be underestimated and must count significantly in the applicant's favour. His son would grow up without having the presence of his father in his life.
The applicant's daughter who is presently 17 years of age would also be impacted. More will be said about this later when paragraph 8.4 of Direction 110 is addressed. However, the applicant has regularly made child support payments to his former wife for his daughter and has also regularly paid for several ad hoc expenses that she has incurred from time to time. Whilst his daughter is relatively close to adulthood, nonetheless, the loss of this financial support would be a significant impact. The applicant in his evidence indicated that his daughter has done well at school and intends to undertake university study, hopefully in law. If she does, almost inevitably, it would seem that the applicant to the best of his ability would make some contribution towards those endeavours. Obviously, if he is removed, she would not be in receipt of such contributions which would be a direct pecuniary impact on her. Additionally, the applicant has developed a reasonable relationship with his daughter which would almost invariably come to an end if he were removed to Sudan.
Given the evidence before it, for the reasons explained, the Tribunal considers that the strength, nature and duration of the Applicant's ties to Australia are substantial. Accordingly, very significant weight must attach to this primary consideration in favour of setting aside the reviewable decision.

Primary consideration 8.4 of Direction 110 - Best interests of minor children in Australia affected by the decision

Paragraph 8.4 (1) of Direction 110 specifies that decision-makers must make a determination about whether a cancellation under section 501 is, or is not, in the best interests of a child affected by the decision.
Under paragraph 8.4 (1) of Direction 110 this consideration applies only if the child is, or would be, under 18 years old at the time when the decision to cancel the visa is expected to be made.
Paragraph 8.4 (3) of Direction 110 specifies that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
There are two minor children affected by the decision. Those children are as follows:

(a) His daughter born in 2009; and > > (b) His son born in 2025.

The applicant's daughter was from a marriage that he was previously in for approximately 4 or 5 years, and which ended in approximately 2013. She resides with her mother in Melbourne. His evidence was that although he has limited contact with her mother, typically, prior to being placed in immigration detention, he had contact with his daughter approximately four times per year, having last seen her in August 2025. This contact occurs whenever the applicant is in Melbourne. Other contact with his daughter is maintained by telephone, and he stated he usually speaks to her once every two or three weeks as she has a mobile telephone. He has regularly paid approximately $1,000 per month in child support together with additional funds for any other ad hoc, or out of the ordinary expenses that she may incur.[13] These expenses include for such things as schoolbooks and excursions. It is to the applicant's credit that he has maintained these regular child support payments for his daughter. It is well known that many men quite consciously avoid this important obligation towards the maintenance and advancement of their children. It is also to an extent a demonstration of the efforts the applicant has made along the pathway of reform and rehabilitation.
Notwithstanding that the applicant's contact with his daughter is comparatively infrequent, the Tribunal is satisfied that nonetheless, as her parent, the applicant has certainly since his release from prison on the last occasion, established and maintained a meaningful parental role in his daughter's life.
The applicant's son of course is an infant and only months old. He resides with his mother and her 3 other children from a previous relationship, presently in Melbourne. It had been the intention of the applicant and his partner, with whom he has been in a relationship since approximately 2021, that she would relocate with their son and her other children, to Adelaide when the applicant was able to secure appropriate accommodation for the six of them. Given the tender age of the applicant's son and the fact that he has been in immigration detention for several months, no real relationship has developed between them as yet. However, the Tribunal accepts that it is the intention of the applicant and his partner to live together as soon as possible as a family unit. It is also accepted that the applicant is devoted to his son and wishes to play a positive role in his life as a father. He also wishes to play a positive role in the lives of his partner's other children.
It should also be repeated that the applicant's present partner has three teenage children from a previous relationship. Prior to being taken into immigration detention he was also providing support to her and those children. Limited information was before the Tribunal concerning these teenage children. However, it considers that they are nonetheless minor children who are affected by the decision and their interests should be taken into account as best one can do on the available information. Certainly, the applicant's expressed intention for his present partner and all the children to move to Adelaide and live under the one roof should be acknowledged.
The applicant, in submissions on his behalf, contends the best interests of minor children in Australia affected by the decision weigh powerfully in favour of restoring the visa.
On the other hand, the respondent whilst accepting that this primary consideration weighs in favour of revoking the cancellation contends that the weight to be attached to it should be tempered by such factors as the nature and seriousness of his offending and the potential risk to the Australian community were he to reoffend. It was also contended by the respondent, that in any event, the weight to be attached to this primary consideration in favour of revocation of the cancellation of the visa is ultimately outweighed by the weight should be attached to primary considerations 8.1 and 8.5 of Direction 110.
The Tribunal considers that given the matters outlined above, and in particular that the applicant has an infant son and teenage daughter who would be profoundly affected by the decision, that very heavy weight should be attached to this primary consideration in favour of revocation of the cancellation.

Primary consideration 8.5 of Direction 110 - Expectations of the Australian Community

Paragraph 8.5(1) of Direction 110 provides that the 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 not to allow such a non-citizen to enter or remain in Australia.
It is also provided in paragraph 8.5(2) of Direction 110 that in addition, 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, if they raise serious character concerns through conduct, in Australia or elsewhere of the following kind, amongst others:

(c) acts of family violence; or > > (d) (e) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, "serious crimes" include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect.

Paragraph 8.5(3) of Direction 110 provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
It is also provided in paragraph 8.5(4) of Direction 110 that this 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, without independently assessing the community's expectations in the particular case.
In applying this primary consideration, it is instructive to refer to several passages from the decision in FYBR v Minister for Home Affairs which is frequently referred to in cases before this Tribunal and the courts_._[14] Several passages from that decision explain that, as is apparent from an examination of a paragraph of the earlier Ministerial Direction, Direction 99, which expressed similar language, to the extent it contains a statement of the expectations of the Australian community, the clause is "deeming".[15] As Charlesworth J also explained, the clause imputes or ascribes to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[16] These expectations are established and are to be applied as norms.
As Mortimer J (as she then was) in YNQY v Minister for Immigration and Border Protection[17] observed, in substance, this consideration is adverse to any applicant where they have failed the character test and have been convicted of serious crimes.
The expectations of the Australian community should be determined by reference to the provisions of the Ministerial Direction itself, without independently assessing the community's expectations in the particular case. The Tribunal as decision-maker must proceed on the basis that the views of the Australian government set out in paragraph 8.5 of Direction 110 are the relevant norm described as the expectations of the Australian community.[18] The weight to be applied in undertaking the balancing exercise prescribed by the Ministerial Direction is ultimately a matter for determination by the decision-maker, in this case the Tribunal, taking into account all relevant individual factors including countervailing factors from the person's specific circumstances.[19]
When the language contained in this primary consideration of Direction 110, which articulates that the Australian community expects as a norm that the Government not allow a non-citizen who has engaged in serious breach of such expectation, or where there is an unacceptable risk that they may do so, to remain in Australia, is applied to the facts and circumstances of this application, one reaches the conclusion that it weighs in favour of affirming the reviewable decision. This is particularly in view of the serious offences he has committed as outlined above. However, is should be emphasised that the Tribunal does not conclude that there is an unacceptable risk that the applicant may reoffend for the reasons explained above.
Whilst this primary consideration is adverse to the Applicant where he has failed the character test and it reflects an expectation on the part of the Australian community as a norm that it expects non-citizens to obey the law, the question for the Tribunal in this exercise is to determine what weight to attach to this primary consideration. It is also acknowledged that these expectations of the Australian community apply regardless of whether the applicant poses a measurable risk of causing physical harm to the Australian community.
The applicant contends that this is not a case where non-revocation is appropriate simply because of the nature of 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, nor is there an unacceptable risk that he will reoffend.
The respondent contends that the applicant's offending is objectively serious and repeated and of such a nature that the Australian community would expect that the reviewable decision should be affirmed. Emphasis was placed on the fact that the offending were serious crimes against women, or other vulnerable members of the community.
Given the evidence that has been accepted by the Tribunal of the applicant's rehabilitation and reform, that he has been in the community for over 10 years without reoffending, the findings that he is a low risk of reoffending and that he has worked hard and made a positive contribution to society since his release, the weight that might otherwise be attached to this primary consideration against revocation of the cancellation must be substantially reduced. The Tribunal therefore attaches limited weight to this primary consideration against revocation of the cancellation decision.

Paragraph 9.1 of Direction 110 - Legal consequences of the decision

Paragraph 9.1.2 Direction 110 Non-citizens not covered by a protection finding, identifies several elements. All the subparagraphs comprising this paragraph of Direction 110 are referred to for their full force and effect. However, briefly the substance of some of them will be outlined below.
Under paragraph 9.1.2 (1) claims which may give rise to international non-refoulment obligations can also be raised by a non-citizen who is not the subject of a protection finding in responding to a notice of intention to consider cancellation of a visa under s 501 of the Act. Where such claims are raised, they must be considered.
Sub paragraph 9.1.2 notes, however, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the s 501 stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application.
The immediate legal consequences of the decision to cancel the visa, and if the reviewable decision is affirmed, are that the applicant will be liable to removal from Australia as soon as reasonably practicable pursuant to s 198 of the Act, and in the meantime, subject to detention under s 189 of the Act.
It perhaps also should be noted that the respondent observed that if the reviewable decision is affirmed, the applicant would not be able to apply for another visa within Australia (with the exception of a protection visa) in accordance with s 501B of the Act and would be subject to Special Return Criteria Schedule 5 of the Migration Regulations 1994 (Cth).
The respondent observes that the applicant is not currently the subject of any protection findings, and it is apparent that he has not applied for a protection visa. This being so, the respondent relying on the decision of the High Court of Australia in Plaintiff M1/2021 v Minister for Home Affairs observes it is open to the Tribunal to defer its assessment of whether non-refoulement obligations are owed to the applicant and therefore place neutral weight on this consideration.[20]
The Tribunal is not prepared to defer such an assessment. The applicant made reasonably detailed submissions both in writing and orally concerning his non-refoulement claims. Additionally, there was other documentary material concerning the present situation in Sudan which does enable a realistic assessment of such claims to be undertaken by the Tribunal in this application. There appears to be no reason why the Tribunal should not do so. As was observed by the High Court of Australia in Plaintiff M1/2021, in doing so, it should read, identify, understand and evaluate any representations made by the applicant.
The applicant submits that the Tribunal should assess the material before it concerning his non-refoulement claims. He emphasises that he and his family were granted humanitarian visas after they had fled the Second Civil War in what was then Sudan. His citizenship status, at best, can be described as uncertain. It is not known whether indeed he is recognised as a citizen of either present day Sudan or South Sudan.
It was further highlighted by the applicant what he and his family had been exposed to prior to leaving Sudan when he was approximately 10 years of age. This included exposure to armed combat, bombing, shelling, witnessing deaths arising from such combat or war events, watching and being on the receiving end of torture. He witnessed his cousins being tortured, beaten, and as he described it, ultimately "slaughtered". There was the death of his father and apparently also three uncles during that war. The applicant stated, and it was corroborated by Ms Cokorilo in her evidence, that these experiences did cause him to struggle psychologically, and he has experienced a history of PTSD amongst other mental health conditions including severe anxiety and depression.
In terms of the history of what harm the applicant was exposed to in Sudan, reference should be made to a very detailed Phycological Assessment conducted by Mr Balfour in September 2010 in anticipation of his appearance in the District Court of South Australia.[21] In the section of that report entitled "Family History" Mr Balfour has catalogued in detail the significant events of torture, abuse, and harm the applicant experienced there. He also directly witnessed shocking abuses such as the killing of his uncle and raping of young girls. Mr Balfour recorded that the applicant showed him a number of scars on his body and numerous lacerations on his arms incurred as a result of torture he experienced. He was tortured when aged 9. He also had his leg broken as part of that torture. Such break was not treated, and the leg continues to give him problems to this day. Amongst other things, he was subjected to water torture and being locked in a metal box for days without food or water. That account has been considered by the Tribunal in its entirety. It is extremely confronting and simply horrendous. Any risk of the applicant being exposed to such treatment in the future is unacceptable.
There is presently another conflict taking place in Sudan and South Sudan and because of this the applicant contends that he is unlikely to be able to be provided with any kind of protection by the government or authorities in that region. It should be borne in mind that he has not lived there since he was approximately a 10-year-old child. He emphasises also that he has no remaining family there, no social or other contacts, no networks and is unlikely to be able to obtain any support or assistance in any shape or form to be able to provide for himself and live there safely.
There was an array of material concerning the present civil war in Sudan.[22] That material has been considered by the Tribunal. The warring factions have been described as being locked in a deadly power struggle. One side known as the "Rapid Support Forces" have been reported as committing widespread atrocities, including cases of mass killings, sexual violence, and other crimes. Significantly and relevant to the position of the applicant, they have been targeting the black African non-Arab ethnic group and are accused of genocide and ethnic cleansing, the very risk that he faced when in Sudan as described. It is a risk of harm that the applicant would clearly face if he were to return there.
Some reference was made of materials provided by the applicant to acknowledgements by several ministers of the Commonwealth of Australia acknowledging what was described as the "Sudan Crisis". Both statements made in media releases described the situation in Sudan as "the world's largest humanitarian and displacement crisis". The statement also referred to approximately 11 million people who are internally displaced and that another 3 million people have fled to neighbouring countries. Reference was also made to credible reports of indiscriminate violence against unarmed civilians, mass killings, sexual violence and deliberate attacks on civilians. There was also a description of a rapidly deteriorating humanitarian situation in Sudan, the commission of atrocities and suffering described on a catastrophic scale. Similar expressions of the situation have been made by the United Nations on various occasions in the material before the Tribunal.
It does seem that were the applicant returned to either Sudan or South Sudan there is a distinct and real risk that he would be exposed to a threat of physical harm, probably hunger, homelessness and potential internal displacement. In this setting it is contended on the applicant's behalf that if he were returned to either of those nations it would plainly violate Australia's international non-refoulement obligations.
Another legal consequence arising from the cancellation of the visa was also identified and relied upon by the applicant in his submissions.[23] In short, he submits that he may be liable to removal from Australia to Nauru under a scheme recently introduced into the Act. Under this statutory scheme, a Memorandum of Understanding has been signed with the Government of Nauru for the long-term resettlement in that nation of a group of people who have been referred to in various terms including "NZYQ cohort". Some people from that cohort have now been removed to Nauru. He contends that if the visa is not restored, there is a distinctive and real possibility that he would be subjected to those measures and ultimately removed to the island of Nauru.
The respondent contends that in circumstances where the applicant's removal and indefinite exclusion from Australia are the intended purpose of the statutory scheme, when assessing what weight to apply to this other consideration, it should be afforded neutrally.
On the other hand, the applicant understandably contends that having considered Australia's international non-refoulement obligations, the conclusion is that such obligations are engaged in relation to him. Therefore, it must weigh heavily against exercising the discretion in the Act to cancel his visa. The Tribunal has explained how it has reached the conclusion that the applicant is at risk of a specific type of harm arising from the Civil War and conflict in Sudan and given his previously terrible experiences of, amongst other things, torture and maltreatment as recounted above. It must be repeated that it is a confronting account and history.
For these reasons, the Tribunal concludes very heavy weight must attach to this other consideration in favour of revocation of the decision to cancel the visa.

Paragraph 9.2 of Direction 110 - Extent of impediments if removed

Paragraph 9.2(1) of Direction 110 provides that decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

(f) the non-citizen's age and health; > > (g) whether there are substantial language or cultural barriers; and > > (h) any social, medical, and/or economic support available to them in that country.

The Applicant is presently 39 years of age and apparently in good health.
The applicant said he speaks Dinka most of the time, which is one of the main languages of South Sudan, a little Arabic, Swhahili and English. Language-wise, he would be able to make his way and would not any substantial barriers.
In submissions made on his behalf it was highlighted of course, as noted above, that the citizenship status of the applicant is uncertain. He was born in that area of Sudan which became independent as the new nation of South Sudan in 2011. Whether he can be returned there, should the reviewable decision be affirmed, is a question that is not easily answered. Therefore, even determining what impediments the applicant may face in establishing himself and maintaining basic living standards in the context of what is generally available for other citizens of the country concerned is problematic.
The applicant gave a detailed history of the experiences he faced as a child in South Sudan.[24] It is a confronting and distressing history indeed. It has been already touched on above when addressing the legal consequences of the decision. That analysis is referred to and repeated for the purposes of this other consideration. The conflict between Arabian groups from the North who target Christians in the South represent a significant cultural and practical difficulty or barrier, as contemplated by this other consideration. The confronting experiences faced by the applicant as a child have had lifelong lasting effects upon him. As has already been mentioned previously, he suffers from PTSD together with severe levels of anxiety and depression. This was confirmed in the evidence of Ms Cokorilo. In the section of her report entitled "Phycological Impact of Removal" also stated from a psychological perspective, forced return to an environment associated with prior trauma would be expected to carry a high risk of reactivation of trauma-related symptoms, including heightened anxiety, hyperarousal, and depressive features. Such reactivation would be in her opinion further compounded by separation from his children, partner, and elderly mother as well as loss of employment and established routine. These factors she stated are known to undermine emotional regulation and psychological stability. It is highly unlikely that he would have access to any mental health services or mental health professionals to address his significant mental health conditions if he returned to either South Sudan or Sudan. Certainly, insofar as South Sudan is concerned there was before the Tribunal the DFAT Country Information Report. That report indicated that South Sudan's population has extremely poor access to health care. It further noted that accurate data prepared by the government on health indicators is often non-existent or outdated. DFAT understood that the health situation has deteriorated further as a result of the worsening conflict and economic situation there. This is, yet again, ample evidence of a significant barrier or impediment the applicant would face would be to return there. As for Sudan itself, the situation is probably worse given the massive displacement of its population due to the Civil War.
In submissions lodged on behalf of the applicant reference was made to various sources of information providing some details of the current Civil War in Sudan. Various aspects of that Civil War were recorded in that material much of which has already been summarised in the section of these reasons addressing paragraph 9.1 of Direction 110 above. It warrants being repeated for the purposes of addressing this other consideration. It referred to the fact that over 30 million people need urgent support due to the conflict concerned. It also recorded the 11 million people had been internally displaced and another 3 million people had fled to neighbouring countries. There was also reference to mass killings, sexual violence and deliberate indiscriminate attacks on civilians. In this setting, having lived his entire adult life in Australia, it seems more probable than not that the applicant will face significant impediments in procuring even the most basic living standards such as food and accommodation, let alone anything else that he may require, including treatment for his mental-health issues. On that note it would seem highly probable, that in the event he were returned to Sudan that it may actually trigger a relapse or a significant deterioration in his mental-health, which the Tribunal considers is a significant impediment as contemplated by Paragraph 9.2 of Direction 110.
The respondent accepts that this other consideration weighs in favour of revoking the cancellation decision. In doing so however, it is contended by the respondent that the applicant will not face any insurmountable language or cultural barriers if he is returned to Sudan.
The Tribunal cannot accept the respondent's contentions with respect to this other consideration. It has found for the reasons explained that there are significant impediments to his return, whether that may be either South Sudan or Sudan. Therefore, the Tribunal considers that very heavy weight must attach to this other consideration in favour of revocation of the cancellation of the visa.

Paragraph 9.3 of Direction 110 - Impact on Australian business interests

There was no evidence before the Tribunal that related to this other consideration. The parties acknowledged that it was not applicable to this application. Therefore, no weight will be attached to it.

For the reasons explained the Tribunal has concluded that very limited weight should be attached to the primary consideration 8.1 of Direction 110, Protection of the Australian community in favour of the exercise of the discretion in s 501 (2) of the Act to cancel the visa. Similarly, the Tribunal has concluded that only limited weight in favour of the exercise of the discretion in s 501 (2) of the Act in favour of cancellation of the visa be ascribed to primary consideration 8.5 of Direction 110 Expectations of the Australian Community.
Very significant weight has been attached by the Tribunal to primary consideration 8.3, The strengths, nature and duration of ties to Australia, of Direction 110 in favour of setting aside the reviewable decision. Similarly, the Tribunal has attached very heavy weight to the primary consideration 8.4, Best interests of minor children in Australia affected by the decision, of Direction 110.
There are then the other considerations that are applicable which have been considered, assessed and weight applied by the Tribunal for the reasons articulated. As for Paragraph 9.1 of Direction 110-Legal consequences of the decision, very heavy weight has been attached in favour of revocation of the reviewable decision. Similarly, very heavy weight has been attached by the Tribunal for the reasons outlined to the other consideration contained in paragraph 9.2 of Direction 110-Extended impediments if removed in favour of revocation of the reviewable decision.
As will be seen from this analysis of the weight attached to each of the primary and other considerations, the weight that collectively attaches to primary considerations 8.3 and 8.4 together with the weight attaching to the other considerations 9.1 and 9.2 of Direction 110, clearly outweighs the very limited weight and limited weight prospectively attached to primary considerations 8.1 and 8.5 of Direction 110. For these reasons the reviewable decision will be set aside, and insofar as it is necessary the visa is restored.

By reason of the foregoing matters, the reviewable decision is set aside.

[3] Direction 110 commenced on 21 June 2024.

[4] Paragraph 14.1 of the applicant's Statement of Facts, Issues and Contentions.

[13] Child-support assessments for the applicant, which she has been paying were at pages 501-502 of the HB.

[17] [2017] FCA 1466, 27-8 [76].

[18] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 185 ALD 335 at [51]-[52].

[19] Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396, [97]. It should, for the sake of completeness, be noted that this decision addressed a different Ministerial Direction. However, it contained a primary consideration in the same language as Direction 110.

[23] Paragraphs 12 to 18 of the applicant's Statement of Facts, Issues and Contentions are referred to for details of the submissions concern.

[24] Paragraphs 23 to 31 of the applicant's witness statement are referred to. Reference is made again to the detailed account recorded by Mr Balfour in his report of 16 September 2010 in the section "Family History", HB 430 for details of the appalling experiences the applicant endured as a child in Sudan.

Deng and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2026] ARTA 164 (3 February 2026)

FYBR v Minister for Home Affairs

At a glance

Court

Decision date

Source

Judgment (95 paragraphs)

Parties

Cases Cited (3)

Deng and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2026] ARTA 164 (3 February 2026)