(1A) An applicant for a protection visa must satisfy:

(a) both of the criteria in subsections (1B) and (1C); and

(b) at least one of the criteria in subsection (2).

1. On 11 March 2025, a delegate of the Minister found that the applicant satisfied the criteria in ss 36(1B) and (1C) of the Act. In particular, with reference to the criterion in s 36(1C) of the Act, the delegate found that the applicant is not a person whom the Minister considers, on reasonable grounds, having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.[5]
2. On 21 February 2025, on review of the delegate's decision made on 16 May 2018 to refuse the grant of the visa, the Tribunal set aside the decision and remitted the applicant's application for the visa for reconsideration with an order that the applicant met the criteria in s 36(2)(a) of the Act.[6]
3. At this point, the applicant satisfied the criteria for grant of the visa pursuant to s 36(1A) of the Act.
4. Notwithstanding the applicant doing so, the Minister held a discretion to refuse to grant the applicant the visa under s 501(1) of the Act which provides:

The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.

1. The meaning of the 'character test' is set out in s 501(6) of the Act, which relevantly provides:

(6) For the purposes of this section, a person does not pass the character test if:

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

(7) For the purposes the character test, a person has a substantial criminal record if:

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

1. The applicant has a substantial criminal record for the following reasons.
2. On 11 July 2015, the applicant went to a residential property where there was a gathering of people drinking alcohol. Arising from his conduct, the applicant was charged with two offences:
   1. wounding with intent to cause grievous bodily harm.
   2. affray
3. The applicant pleaded not guilty to both charges which led to a trial by jury in the District Court of NSW in March 2017.[7] On 20 March 2017, the applicant was found guilty on both charges.[8] On 11 August 2017, the applicant came before the Court for sentence.[9]
4. In relation to the first offence, the applicant was convicted and sentenced to a term of 7 years imprisonment with a non-parole period of 4 years and 5 months, commencing on 11 August 2015 when he was taken into custody. The applicant became eligible for parole on 10 January 2020.[10]
5. In relation to the second offence, the Court sentenced the applicant to a term of imprisonment of 12 months. That term of imprisonment likewise commenced on 11 August 2015, which therefore expired on 10 August 2016. This meant the applicant had served his term of imprisonment for that offence.
6. On 2 October 2018, the applicant applied to the NSW Court of Criminal Appeal for leave to appeal against his convictions.[11] The Court heard the appeal on 16 and 29 August 2019. On 12 February 2020, the Court unanimously granted leave to appeal and dismissed the appeal.[12]
7. By reason of the applicant having a substantial criminal record, as defined in s 501(7)(c), the applicant did not satisfy the Minister that he passed the character test pursuant to s 501(6)(a). Accordingly, the Minister's discretionary power to refuse to grant the applicant the visa was engaged.
8. By decision made on 18 August 2025, a delegate of the Minister exercised that discretion (the decision under review).[13] On the same day, the applicant applied to the Tribunal for review of the decision under review.[14]
9. As mentioned, the decision under review was discretionary. In Khaled Ayache and Minister for immigration and Border Protection (Ayache),[15] the Administrative Appeals Tribunal (the AAT) per DP Forgie said:

Section 501(1) is drafted in discretionary terms in that the Minister "may" refuse to grant a visa to a person who does not satisfy the Minister that the person passes the character test. It is not an unfettered discretion but a discretion that must be exercised within boundaries found in the Migration Act. Those boundaries may be express or they may be implicit when regard is had to the subject matter of the enactment under which the decision is made as well as from its object and underlying policy.

In the case of a discretionary decision of the sort provided for in s 500(1) (sic), s 499 of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under that Act provided the directions are about the performance of those functions or the exercise of those powers. Those directions must not be inconsistent with the Act or the Regulations made under it. The person or body to whom the directions are given must comply with them. The Minister has made a direction under s 499 for the purposes of decisions made under, among others, s 501(1). It is known as "Direction No. 65".[16]

1. Direction No 65 has since been replaced by Direction 110, but the comments of DP Forgie regarding the exercise of the discretion under s 501(1) remain applicable.
2. On review, the Tribunal's function is to hear the matter afresh and to decide what it considers to be the correct or preferable decision on the evidence before it.[17]

1. The applicant maintains his innocence of the crimes for which he was found guilty despite the outcomes of his trial and of his appeal to the NSW Court of Criminal Appeal. Notwithstanding, the applicant (properly) accepted he does not pass the character test relevantly prescribed under s 501(6)(a) of the Act. Having regard to the sentences imposed on him and the definition of "substantial criminal record" in s 501(7)(c) of the Act, that acceptance was plainly right. I find accordingly.

1. Pursuant to s 499(2A) of the Act, when deciding whether the discretion to refuse to grant the applicant should be exercised, and hence whether to affirm or set aside the decision under review, I was required to comply with Direction 110.[18]
2. The starting point was the eight principles in paragraph 5.2 of Direction 110:

The principles below provide 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 section 50 IC A. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2. (1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

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

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

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

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

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

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

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

1. Direction 110 then moves, in Part 2, to the topic: "Making a decision". Paragraphs 6, 7, 8 and 9 in Part 2 (omitting the subparagraphs in paragraphs 8 and 9 for present purposes) state:

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.

7. Taking the relevant considerations into account

(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.

(3) One or more primary considerations may outweigh other primary considerations.

In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:

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

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

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

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

(5) expectations of the Australian community.

(1) In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

1. a) legal consequences of the decision;
2. b) extent of impediments if removed;
3. c) impact on Australian business interests
4. Pursuant to paragraph 6 of Direction 110, I took into account the primary considerations identified in paragraph 8 and the other considerations identified in paragraph 9 where relevant. Pursuant to paragraph 7, I gave greater weight to the first primary consideration than to the other primary considerations and greater weight to the primary considerations than to the other considerations.
5. For the reasons given by a Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs (CRNL),[19] I then balanced the relevant considerations against each other and, by this means, evaluated whether the decision to refuse to grant the applicant the visa should be affirmed or set aside.[20]

Protection of the Australian community - general

1. Regarding the first primary consideration, I gave consideration to paragraph 8.1(1) of Direction 110 which states:

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

1. When considering protection of the Australian community, I gave consideration to the factors in paragraph 8.1(2):

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.

2. I also had regard to the details in paragraphs 8.1.1 and 8.1.2 (and the subparagraphs within them) which provide details about the two considerations stated in paragraph 8.1(2).

Protection of the Australian community - nature and seriousness of the conduct

1. Paragraphs 8.1.1(1)(a)-(i) state eight factors to which I had regard when considering "the nature and seriousness of the [applicant's] criminal offending or other conduct to date".
2. Paragraph 8.1.1(1)(a) identifies three "types of crimes or conduct [that] are "viewed very seriously by the Australian Government and the Australian community", the first of which is "violent and/or sexual crimes". The subsection, however, does not limit "the range of conduct that may be considered very serious". I summarise briefly what occurred, drawing from the sentencing remarks of the trial judge.
3. On 11 July 2015, there was a party or gathering at the residential home of a person I will refer to as "A". All of the men who were present were Sri Lankan,[21] and most of them including the applicant were drinking alcohol. The applicant became aggressive, was using offensive language and was several times told to leave. He was physically removed from the house by a person who I will refer to as "B".
4. At some point the applicant returned to the house armed with a knife that was about 20 cm long that resembled a kitchen knife with a black handle. The applicant stabbed B from the front with the knife twice. The sentencing judge commented that at the time of the wounding, B was facing the applicant "front on and as such he was able to provide a detailed description of the manner and sequence in which he was stabbed."[22]
5. At trial, the Crown contended the applicant stabbed B as part of a joint criminal enterprise with two other men, one of whom who I will refer to as "C" and a third person whose identity has never been established.[23] At trial, the applicant contended he was present as a "peace maker." He contended he was not part of any joint criminal enterprise and did not stab anyone. The jury rejected the applicant's claims. In his sentencing remarks, the trial judge said:

There is absolutely no reason the jury would not have been so satisfied that [the applicant] was part of [a] joint criminal enterprise with his co-offender [C] and the unknown third man, at the time that all three were armed and all three were involved in the stabbing of [B]. I am actually also well and truly satisfied beyond reasonable doubt that his own individual intent at the time he stabbed [B] was to inflict grievous bodily harm. I am equally satisfied beyond reasonable doubt that he entered a spontaneous joint criminal enterprise with his two co-offenders in order to inflict the wounding with intent to cause grievous bodily harm. As a matter of law he is responsible for the acts of his co-offender in the stabbing of [B] and he was responsible I find as a matter of law in relation to all the stab wounds, however his individual role in that joint criminal enterprise still must be assessed. He stabbed [B] twice to the front, [C] stabbed [B] several times from the back, the unknown co-offenders seemingly also was involved in the stabbing near the back or in the back region of [B]. In my view there is no real reason to differentiate anything in relation to their involvements. All the stabbings were serious, all of it was part of a joint criminal enterprise, all of it was capable of inflicting great harm on [B] and objectively on the section 33 matter I see no reason to differentiate the objective role of his with [C].[24]

1. The offence of affray, for which the applicant was found guilty, arose from him "throw[ing] a blow against A, even though others stabbed A. The trial judge stated "I can't stress enough" that the applicant was not responsible for the stabbing of A "and in no way as part of the affray is that to be taken into account." The judge regarded the applicant's offending by throwing the blow as being "at the very low end of an affray" and that "I do not believe the affray needs to add anything to the sentence that I will impose for the section 33 matter",[25] meaning the applicant wounding B with intent to cause grievous bodily harm.
2. B suffered seven stab wounds. The judge commented on the wounds as follows:

He was brought to Westmead Emergency with a decreased Glasgow Coma and shock. He was paralysed on arrival with decreased air entry in the left chest, 700 mil of blood was drained from the chest cavity and a blood clot evacuated from the left pleural space. He was taken to the operating theatre and his wounds were washed and closed and sutured.

All wounds breached the dermis and epidermis. The stabbing injury to the lateral chest wall was a serious injury which caused extensive bleeding in the chest cavity and adversely affected the function of his respiratory organs. He spent two days in ICU and nine days in hospital. He suffered the following injuries including a 2 cm laceration to the left upper arm, a stab wound lateral chest wall at the seventh intercostal space, a right posterolateral chest wall onto scapula 3 cm a right paraspinal T8 intermuscle 3 cm, a left paraspinal T8 into muscle 4 centimetres, a left paraspinal L2 into muscle 1 cm, a left posterior chest wall interscapula 2 centimetres (sic).

Needless to say someone who is stabbed seven times and suffered the significant injuries that [B] suffered, that [B] suffered, that is he suffered such injuries would be significant in relation to both the physical and psychological harm, those who involve themselves in such violence must understand that.[26]

1. Drawing from B's victim impact statement, the Judge noted (at the time of sentence in 2017) B still suffers physical pain from his injuries, bending and lifting can cause stomach pains and he has issues with being able to place any force or weight on his shoulder. The Judge further commented:

At the time of the offence [B's] wife was four months pregnant and his son was 15 months old and as a result of his injuries he was unable to attend his regular job and was declared unfit to continue his work, this put great financial stress on his family, they have incurred a great loss of income and had to take further loans in order to pay for the medical bills and other regular bills since the offence. They now owe money to friends and family which [B] is struggling to repay as he can no longer work effectively to make a proper income as he gets tired in his regular work routine. He has also suffered from great emotional and physiological distress and was not able to assist his wife throughout the rest of the pregnancy once his daughter was born which has damaged their relationship.[27]

1. In this proceeding, the Minister submitted that the applicant's crimes should be viewed as very serious.[28] At hearing, with reference to the Minister's submission in the context of the Court's findings of fact, the applicant's lawyer stated (properly, in my view) "That's accepted". I find the applicant's crimes were very serious. Referring to paragraph 8.1.1(1)(c), the seriousness of the applicant's offending is reflected in the sentence imposed by the Court.
2. Paragraph 8.1.1(1)(d) concerns the impact of the applicant's offending on any victims of offending or other conduct and their family, and B in this case. That impact is summarised above, drawing on the judge's sentencing remarks, which confirms the very serious nature of the applicant's offending.
3. Whilst maintaining "his innocence of this crime", the applicant stated he is "very sorry that the victim suffered this horrendous crime at the hands of the confessed guilty party", meaning C.[29] By "confessed", the applicant relied on a statutory declaration declared on 24 October 2025 by C (who was also found guilty of stabbing B)[30] in which C stated he and only he stabbed B.[31]
4. I note at this point that C gave new evidence as part of the applicant's appeal to the Court of Criminal Appeal. The Court considered C's claim that only he committed the crime and that the applicant had "done nothing"[32]. Each of the judges concluded C not to be a reliable witness[33] and, after considering C's evidence and other evidence on the appeal, each of the three judges concluded they did not have a reasonable doubt about the applicant's guilt on both charges.[34]
5. That the applicant, notwithstanding, maintains his innocence of the crime of wounding B with intent to cause grievous bodily harm does not change the fact that he has been found guilty of the crime, convicted of it and sentenced for it. I must consider the applicant's criminality on that basis. As the applicant acknowledged at hearing, I cannot entertain submissions that propose factual findings that are inconsistent with the applicant's conviction and sentence or the factual findings that underpin them. In this respect, I refer to the decision of a Full Court of the Federal Court in HZCP v Minister for Immigration and Border Protection (HZCP)[35] that is binding on me.
6. In HZCP, the appellant arrived from Sri Lanka in mid-2009, then aged 22, and in the following year was granted a protection visa. In August 2011, the appellant attacked two men in the company of three others. In December 2013 he was sentenced to 2½ years imprisonment for grievous bodily harm and 12 months imprisonment for unlawful wounding to be served concurrently.
7. Arising from his conviction and sentence, the applicant's protection visa was mandatorily cancelled and a delegate of the Minister declined to revoke that decision. On review, the Administrative Appeals Tribunal (the AAT) said the appellant -

indicated that he was deeply remorseful for what had occurred. He strongly denied, however, that what had happened was as described by the judge. In his words, he tried to break up a fight, acting in self-defence when approached in a threatening manner, and had little to do with the second assault (he certainly did use the metal bar, as found by the judge).[36]

1. The appellant's position contradicted the findings of the trial judge who remarked that the appellant found a metal bar and armed himself with it; wielded the metal bar as a weapon; hit victims in the head with the metal bar; one of the victims was hit with such force that he was knocked down and rendered momentarily unconscious; and that because he used the metal bar in the attack he was culpable for charges of unlawful wounding.[37]
2. In response to the appellant's claim of innocence, the AAT stated it "cannot contradict or go behind a conviction and examine the facts upon which it is based."[38] The appellant's appeal to the Federal Court from the decision of the AAT was dismissed and his further appeal to a Full Court of the Federal Court, per HZCP, was also dismissed.
3. In HZCP, on appeal, McKerracher J said:

Where the jurisdictional power is enlivened, the Tribunal cannot impugn or question the essential factual findings that underpinned the conviction or, where relevant, the sentence on which the power depends.

The Tribunal was correct in concluding that the evidence the appellant sought to rely upon, by which he impugned the facts found by the sentencing judge, could not be entertained.[39]

1. The Minister's discretionary power to refuse to grant the applicant the visa is engaged if he "does not satisfy the Minister that [he] passes the character test". In HZCP, Colvin J on appeal commented as follows on the character test albeit in the context of ss 501(3A) and 501CA that involve cancellation of a visa where a person does not pass the character test. His Honour's comments about the character test nevertheless remain applicable:

The character test enumerates a number of matters each of which mean that a person does not pass the test. Many of those depend upon a person having been convicted of an offence or having received a particular sentence for a criminal offence. None of those provisions invites an inquiry as to whether the conviction or sentence was properly imposed or the truth or otherwise of the facts upon which they were based. The required state of satisfaction is as to the fact of the specified conviction or sentence. ... Therefore, where the question is whether a person fails to pass the character test by reason of a conviction and sentence, the first limb does not invite an inquiry as to whether the conviction or sentence was properly imposed or properly supported by the facts.[40]

1. HZCP involved the mandatory cancellation of a visa because the Minister was satisfied the appellant did not pass the character test for the reasons set out in s 501(3A)(b) of the Act. Section 501CA(4) gave the Minister a discretionary power to revoke the cancellation decision if the Minister was satisfied that the appellant "passes the character test" or there is "another reason" why the cancellation decision should be revoked. On the subject of whether there is "another reason", Colvin J said:

The second limb is 'another reason why the original decision should be revoked'. The use of the words 'another reason' directs attention to any topic other than the matters that mean the person does not satisfy the character test. They assume that the decision-maker has not been satisfied of the first thing (namely, that the person passes the character test). The focus upon 'another reason' means that the consideration is to be undertaken on the basis that the person does not pass the character test. If the failure to satisfy that test is due to a criminal conviction or sentence then it assumes that there is confidence to be reposed in the fact of the conviction or sentence (and the facts upon which it was based). The decision‑maker considering whether there is 'another reason' under s 501CA(4)(b)(ii) must accept that the person has been convicted or sentenced in a manner that means they do not pass the character test. They are not authorised to go behind that aspect. It is not 'another reason' if the reason is to refute the first limb. Such an approach would undermine the first limb and allow a person to claim that the visa cancellation should be revoked because the factual matters that necessarily underpin the conviction or sentence are not true. The other reason would become no more than a challenge to the approach to the subject matter of first limb that the legislature requires the decision‑maker to adopt.

In short, a person who makes representations to revoke the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as 'another reason' why the original decision to cancel should be revoked.

The statement by the Tribunal in the present instance that it could not examine the facts upon which the conviction was based, must be understood in a context where the Tribunal was invited to make factual findings that were contrary to those made by the sentencing judge in passing the sentence that enlivened the statutory power to be exercised by the Tribunal on review. It did not mean that it could ignore those facts. It meant that the Tribunal could not scrutinise or go behind those findings when reaching a decision as to whether it was satisfied that there was 'another reason' to revoke the decision under s 501(3A) to cancel the appellant's visa. The Tribunal was correct in that view.[41]

1. In my view, that reasoning applies equally when considering whether to exercise the discretionary power under s 501(1). The applicant accepts he does not pass the character test because he has a substantial criminal record by reason of his sentence to a term of imprisonment of more than 12 months. In making representations as to why the discretion to refuse the grant of the visa should not be exercised, the applicant cannot advance a factual position that undermines the sentence by reason of which he does not pass the character test. In particular, I could not entertain the applicant's claim or the evidence on which the claim was based to the extent he sought to impugn the factual findings that he stabbed B which led to his conviction and sentence.
2. For the purposes of paragraph 8.1.1(1)(d), I am left with the "horrendous crime" (to use the applicant's words), of which the applicant was found guilty, which has had a highly significant and long-lasting impact on the victim. I take that impact into account when assessing the nature and seriousness of the applicant's crimes.
3. Paragraph 8.1.1(1)(e) concerns "the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness". Paragraph 8.1.1(1)(f) concerns "the cumulative effect of repeated offending". The Minister acknowledged the applicant's offending does not involve any element of frequency or cumulative effect and that these factors should therefore be put aside. I agree.
4. Paragraph 8.1.1(1)(g) concerns the provision of false or misleading information to the Department including nondisclosure of prior criminal offending. The Minister acknowledged the applicant has not provided any false or misleading information to the Department, save for maintaining that he did not commit the offences for which he was convicted. In my view, the applicant maintaining his innocence is not relevant to the purposes of paragraph 8.1.1(1)(g). The phrase "provided false or misleading information" connotes the giving of information that misrepresents a fact or circumstance to the Department. The applicant has not done that. His claim of innocence has at all times been only a claim and a claim made in the context of, and with full disclosure of, his convictions.
5. Paragraph 8.1.1(1)(h) is concerned with whether the applicant has re-offended since been formally warned or made aware about the consequences of further offending in terms of his migration status. Paragraph 8.1.1(1)(i) concerns an offence or conduct committed in another country. The Minister submitted both factors are irrelevant in this case. I agree.

Protection of the Australian community - risk to the Australian community

1. Paragraph 8.1.2 of Direction 110 addresses the risk to the Australian community should the applicant reoffend or engage in other serious conduct. Paragraph 8.1.2 addresses, in particular, the need to protect the Australian community from harm. It relevantly states:

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

(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i) information and evidence on the risk of the non‑citizen re-offending; and

ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

1. Of note is that paragraph 8.1.2(2) required me to consider, "cumulatively", the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct and the likelihood of him engaging in such conduct.
2. In Murphy v Minister for Home Affairs[42] the Federal Court, per Mortimer J (as she then was), said:

.. part of the Tribunal's task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community... of how serious the risk was, or whether the risk should be "tolerated".[43]

1. For several reasons, the applicant submitted he does not pose a risk to the Australian community.
2. First, the applicant relied on him being granted a Class WR Bridging R (Removal Pending) (subclass 070) visa (the BVR) on 18 August 2025.[44] In particular, he relied on the circumstance that pursuant to clause 070.223 of Schedule 2 of the Migration Regulations 1994 (the Regulations), in order to be granted the BVR, he needed to satisfy "public interest criteria 4001 and 4002". The applicant contended that because he satisfied public interest criteria 4001 which, he said, involved an assessment that it was safe for him to be released from immigration detention into the community, an assessment for all practical purposes that he was not a risk of harm to the community for the purposes of paragraph 8.1.2 of Direction 110 has, to use the applicant's solicitor's words, "already been done".
3. I reject the submission. Clause 4001 sets out four circumstances concerning the character test, one of which needs to be met in order for the person to satisfy public interest criteria 4001:

(a) the person satisfies the Minister that the person passing the character tests; or

(b) the Minister is satisfied, after appropriate enquiries, that there is nothing to indicate that the person would fail to satisfy the Minister that the person passes the character tests; or

(c) the Minister has decided not to refuse to grant a visa to the person despite reasonably suspecting that the person does not pass the character tests; or

(d) the Minister has decided not to refuse to grant a visa to the person despite not being satisfied that the person passes the character test.

1. In this case, it is self-evident that none of the first three circumstances apply because the Minister knows the applicant does not pass the character test. However, it is also self-evident from the grant of the BVR that the applicant met the fourth circumstance.
2. The existence of the fourth circumstance set out in subclause 4001(d) says nothing about why the Minister decided not to refuse to grant the applicant the BVR. In particular, nothing can be inferred from the grant that the Minister was satisfied the applicant did not present a risk of harm to the community for the purposes of Direction 110. The reasons why the Minister decided to grant the BVR are not stated.
3. That said, having regard to the decision under review which comments on the applicant being a person in respect of whom Australia has protection obligations under s 36 of the Act which preclude his removal to Sri Lanka, and that there is "presently no real prospect"[45] of the applicant being removed to a third country, the apparent explanation for the applicant's release into the community on conditions, rather than him remaining in immigration detention, is removal of the possibility that his ongoing detention might be unlawful in light of the High Court's decision in NZYQ the Minister for Immigration, Citizenship and Multicultural Affairs.[46] I do not accept that removal of that possibility equates with an assessment that the applicant does not pose a risk of harm to the community.
4. Second, the applicant submitted that the absence of monitoring conditions as part of his BVR, for example the absence of a condition that he wear an ankle device to monitor his whereabouts at all times, is evidence that the Minister regards him as a low risk to the community.
5. I reject the submission. There could be many reasons why possible conditions were not imposed, referenced to the applicant's circumstances.
6. Also, to draw that conclusion in relation to the BVR issued on 18 August 2025 would be inconsistent with the delegate's reasons for their decision under review, also made on 18 August 2025, in which the delegate states their finding that the applicant "represents a risk of harm to the Australian community which is unacceptable."[47]
7. Also, the Minister's view that the applicant is a risk of harm to the community is consistent with the conditions on the grant of the BVR including 8303 that he not become involved in activities disruptive to, or violence threatening harm to, the Australian community; 8401 that he report daily;[48] 8513 and 8625 that he notify his residential address and any changes to his personal contact details; 8564 that he not engage in criminal conduct; and 8624 that he not contact the victim of his offending or a member of the victim's family.
8. Third, the applicant relied on his claim to be innocent of the offences for which he was convicted and sentenced and on his intended review of his convictions by lawful means as evidence that there is a low risk of him causing further harm to the community. He relied on a legal opinion that there are "reasonable prospects" for a prospective application for review of his convictions to contend that his claim of innocence is reasonable.[49] This, he said, distinguished his case from those of the appellant in HZCP where the appellant's claims of innocence were, the applicant said, "mere assertion".
9. I reject the submission. The fact that the applicant might pursue a review of his convictions by lawful means is, in my view, without significance: it is difficult to imagine how anyone could seek review of their convictions otherwise than by lawful means.
10. In any event, I cannot see any connection between the fact that the applicant claims to be innocent of his crimes, reasonably claimed or otherwise, and an assessment of his risk to the community. A person well recognised as highly dangerous might properly seek review of convictions for past offences and claim to be innocent of them. Equally, a person who is innocent of a crime proven or not proven to have occurred in the past might be well recognised as a risk of harm to the community in the future.
11. Fourth, the applicant relied on the Minister's Protection Visa Assessment Record dated 11 March 2025 in which the delegate found the applicant satisfies the criterion in s 36(1C) of the Act, as dealt with above, as evidence that he is not a risk to the community for the purposes of Direction 110.
12. I reject the submission. In my view, a finding that the applicant is not a person who is a danger to the community the purposes of s 36(1C) does not equate with a conclusion that the applicant does not pose a risk of harm to the community for the purposes of Direction 110. As explained in WKCG and Minister for Immigration and Citizenship[50] and DOB18 v Minister for Home Affairs,[51] danger and risk are not synonymous, with the former term connoting something actual, serious and present. Also, the phrasing in s 36(1C), which refers to a person who "is a danger", is wholly different and written in a different context to the phrasing about risk in paragraph 8.1.2 of Direction 110, which is written in the context of consideration of any risk, possible risk and level of risk. In my view, an assessment of danger for the purposes of s 36(1C) should not be applied for the purpose of assessing risk of harm to the Australian community for the purposes of Direction 110.
13. Fifth, the applicant relied on the numerous character references tendered in this proceeding that attest to the applicant not being a risk to the community. In my view, those references are evidence of low risk. I deal with them below.
14. The Minister submitted the applicant presents an ongoing risk of offending to the community, evidenced primarily by two factors: the nature and seriousness of the offences for which he was convicted and his lack of insight into his guilt consequent on him maintaining his innocence in the face of been found guilty beyond reasonable doubt. This, the Minister submitted, evidences a lack of remorse and, consequently, a lack of rehabilitation.
15. The Minister noted that the references of good character from the applicant's family, friends and supporters are mostly premised on the belief that the applicant is innocent of the crimes for which he was convicted. The Minister submitted that where the Tribunal cannot 'go behind' the convictions for the reasons set out in HZCP, limited weight could be given to the references because they are premised on a belief of his innocence.
16. The Minister acknowledged the applicant successfully completed many treatments and rehabilitation courses whilst in prison and later in immigration detention including a course to address anger management. The Minister submitted limited weight could be given to the applicant's completion of these courses because they were not done in the context of rehabilitation or because he recognised a need for rehabilitation. Rather, as the applicant acknowledged at hearing, he did the courses to help others; to improve his command of the English language; and (for the courses done whilst in prison) because he was told it would be good for his future and help his prospects of being released on parole.
17. When considering the risk of the applicant causing further harm to the Australian community, I began with the offences for which he was convicted and sentenced. I accept, as I must, the findings of fact that underpin the conviction and sentence, in particular that he stabbed B twice and by doing so wounded him with intent to cause him grievous bodily harm.
18. I take into account that the offence occurred more than 10 years ago. There is no evidence of any earlier or later violent conduct or other criminal offending on the applicant's part. True, the applicant was in prison or in detention from August 2015 and was not released into the community until August 2025 and so opportunity to harm the community further was not realistically available, but on the other hand his conduct was monitored whilst he was in prison and later in detention.
19. A pre-release report dated 24 October 2019 prepared by an officer from the NSW Department of Justice comments on the applicant's time in prison.[52] It noted the applicant has no history of violent offending in Australia (save the offences for which he was convicted) and no known criminal convictions relating to violence in Sri Lanka. The report noted his willingness to participate in offence-related programs albeit motivated by ensuring his compliance with supervision rather than addressing his offending behaviour for which he maintained his innocence. As for his actual conduct whilst in prison, the report stated:

[The applicant's] behaviour in custody is considered satisfactory. Upon his sentencing, he progressed to a C2 Minimum Security inmate and he has held this classification to date. On 8 January 2018, [the applicant] incurred one institutional misconduct charge for disobeying a direction, which related to his diversion of prescribed medication. He has otherwise not received any adverse reports from custodial staff and generally does not appear to have presented as a management concern.[53]

1. The report notes the applicant completed the EQUIPS Aggression program on 19 December 2018. Whilst noting the applicant's repeated denial of any violent offending, the facilitator nevertheless noted the applicant "demonstrated an adequate understanding of the program content" and that whilst not considering the program to be relevant to him, "he reported that he learned to generally manage his angry feelings by first thinking about the consequences of aggression and violent behaviour on himself."[54]
2. The report notes the applicant actively engaged with the chaplaincy services and was polite and respectful when doing so. It noted he had considerable contact with custodial education services. He attended classes to improve his English. He attains certificates in Skills for Work and Vocational Pathways. He completed units of competency in Information, Digital Media and Technology. He availed himself of employment duties whilst in prison in the furniture unit, technology and as a sweeper. He was employed in the bakery from 21 November 2018 and was the team leader in the bakery at the time the report was written. The report notes:

Enquiries with [the applicant's] Correctional Overseer revealed that he is polite and respectful in the work environment and his performance in this role is considered satisfactory.[55]

1. In the context of supervision, the applicant was assessed at a Medium risk of reoffending according to the Level of Service Inventory - Revised.
2. The applicant's Community Corrections Officer, Ms G, recommended that a parole order be made with conditions that the applicant not possess a firearm or a prohibited weapon, not contact the victim, not contact his co-offender and report to Community Corrections within 7 days of release from immigration detention. That recommendation was supported by the Unit Leader of the Long Bay Parole Unit, and the applicant was released on parole on the first day for which he was eligible for parole: 10 January 2020.
3. In my view, Ms G's recommendation that the applicant be released on parole tempers the weight that should be given to Ms G's case note report written nine days earlier, on 15 October 2019, on which the Minister relied. Whilst I accept the case note suggests the applicant was dismissive of the impact suffered by B when stabbed, the applicant's comments about B being "fine" were in the context of him receiving a report from a friend (unknown) who said that he saw B working.
4. I turn to the Minister's submission about the applicant maintaining his innocence and, consequentially, not showing any insight, remorse or rehabilitation for his offending.
5. In my view, it does not necessarily follow that where there is genuine remorse and demonstrated rehabilitation there is a lower risk of further harm. Some people are genuinely sorry for their actions, and then reoffend. Nor does it necessarily follow that where there is lack of remorse or lack of genuine rehabilitation, a risk of further harm remains or is not lowered. There are cases where a person does not regret their actions but, for any number of reasons including changes in their personal circumstances and appreciation of the consequences, is unlikely to reoffend. In my view, risk of reoffending must be assessed on a case-by-case basis. It is for the Tribunal to make its own assessment of the applicant's likelihood of reoffending, having regard to all the applicable facts and circumstances.[56]
6. In this case, for three main reasons, I regard the risk of the applicant reoffending to be low.
7. First, on the subject of remorse and rehabilitation, I accept it is illogical for the applicant to be remorseful for his crimes where he steadfastly maintains his innocence. However, that does not equate in this case with rejection of the rehabilitative programs that were made available. The applicant voluntarily and successfully completed all seemingly available courses relevant to rehabilitation. Where a, if not the, primary aim of rehabilitation is to reduce risk of further offending, the applicant's successful completion of a course designed with that aim in mind suggests a lower risk of reoffending has been achieved at least to the extent that successful completion of a course can suggest. I am not persuaded the applicant completed the courses with indifference to their purpose even if he maintained they were not applicable to him by reason of his claimed innocence.
8. Second, I had a plethora of character references from family members, friends and other members of the community who consistently spoke of the applicant as a person of good character who does not pose a risk to the Australian community. I gave less weight to the references from the applicant's extended family who have a vested interest in him being granted the visa and (it would seem) believe in his innocence notwithstanding the Court's findings to the contrary. However, many references were from people speaking from an apparently objective viewpoint. I give some examples.
9. Mr S, the chaplain with Prison Fellowship, in a statutory declaration declared on 30 September 2025 spoke about his interactions with the applicant during his time in prison and later in immigration attention. He described the applicant's "good character is that of a stable, gentle family man." Mr S stated that "attesting to his good character, in the total 10 years of detention, [the applicant] did not once incur any charges.[57]
10. Ms C, a member of Support Asylum Seekers Sydney, in an open letter dated 28 September 2025 stated she met the applicant in February 2020 when he was in detention. She spoke about meeting the applicant many times whilst he was in detention. She stated her belief that the applicant is a "good person", of "good character notwithstanding his conviction" who "just wants to be a husband and father to his wife's son whom he has known since he was born five years ago and find a regular job to support them."[58]
11. Mr E, a casework and employment officer with the Community Migrant Resource Centre (CMRC) which assists newly arrived migrants and refugees with settlement support, stated in an open letter dated 1 October 2025 that he has known the applicant since 2013. He states the applicant "is one of the most dedicated, hard-working and innovative clients I've had the pleasure of working with in any capacity. He is also compassionate, kind and never misses the opportunity to help others." Mr E stated the applicant "has a good reputation in the community, very helpful to his friends and family members" and that "we pledge to provide all the support as he .. back in the community (sic)."[59]
12. Dr J, from The Uniting Church in Australia, in a letter to the Tribunal dated 1 October 2025, spoke about his association with the applicant whilst he was incarcerated. He stated the applicant did "extensive relevant courses to prepare himself for the future in the community. I believe he is well equipped with values, knowledge, skills and understanding of healthy and happy relationship[s] .. I am confident that he will continue to be a peace-loving law-abiding person, and will be an asset to the community and community church he will attend."[60]
13. Mr S describes himself as a Tamil community activist who works closely with Tamil asylum seekers and refugees. In an open letter dated 2 October 2025, Mr S spoke about knowing the applicant for the past 10 years in a personal and professional capacity and knowing about his conviction in 2017 and term of imprisonment. He makes no mention of the applicant's claim of innocence. In that capacity, Mr S wrote about the applicant's voluntary participation in community gardening, soccer and cricket. He noted several employment-related and 'life skill' courses the applicant has completed. Mr S states he has observed the applicant "putting these lessons into action as he works hard to live a positive, constructive, and law-abiding life. His character is now defined by responsibility, adaptability, and a deep commitment to making a meaningful contribution to society."[61]
14. Mr Z who is a member of the Lions Club, in an email sent to the applicant's solicitor on 2 October 2025, spoke about the applicant and his wife joining the club. Mr Z described the applicant as "productive and well-behaved .. is keen to contribute to family and community life .. [and] will continue to develop into an outstanding member of the Australian community."[62]
15. Mr SS who is a Councillor with the Cumberland City Council, in an open letter dated 29 September 2025, similarly wrote about the applicant in the context of knowing him for more than 10 years and with awareness of his convictions and sentence arising from the applicant's conduct in July 2015. Mr SS states he has "witnessed [the applicant's] caring nature, resilience, and optimism for the future. .. I have been in regular touch with him and have seen his ongoing commitment to building a positive life. .. His character is defined by his determination, adaptability, and willingness to contribute positively to society. .. I write this character support letter in my capacity as a Councillor and a Tamil community activist who works closely with Tamil asylum seekers and refugees."[63]
16. The third factor for why I regard the risk of the applicant reoffending to be low, as further discussed below, arises from the circumstance that in August 2025 the applicant married his partner of some five years and regards her five-year-old child as his step-son. They now live together as a family. I received wide ranging evidence of the applicant's commitment to his wife and step-son and his wish to provide for them, as a husband and father, in a law-abiding manner. I accept that evidence, which is consistent with a low risk of the applicant causing further harm to the Australian community.
17. This is consistent with the observation of the Minister's delegate in their Protection Visa Assessment Record that the applicant "has many protective factors in his life now that he was without in 2015".[64] The delegate then refers to the applicant's family with whom he now resides.
18. The first primary consideration is directed to protection and safety of the Australian community. The nature and seriousness of the applicant's crimes are plainly relevant to that consideration. However, where these crimes occurred 10 years ago and, in my view, the risk the applicant now poses to the Australian community is low, I concluded that whilst protection of the Australian community is the highest priority, in this case that consideration weighs moderately in favour of exercising the discretion not to grant the visa.

1. The second primary consideration in paragraph 8 of Direction 110 is whether the applicant has engaged in conduct that constitutes family violence. The Minister acknowledged there is no evidence of the applicant engaging in family violence and submitted this consideration is therefore irrelevant in this case. I agree. I gave this consideration neutral weight.

1. The third primary consideration is the strength, nature and duration of the applicant's ties to Australia. Paragraph 8.3 details this consideration as follows:

8.3. The strength, nature and duration of ties to Australia

(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:

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

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

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

1. (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.
2. The applicant did not make submissions directed to the third primary consideration, but did lead evidence regarding the applicant's positive connections with the Sri Lankan and/or Tamil community in Australia and his recent marriage. The applicant also led evidence regarding him obtaining skills and qualifications that improve his prospects of employment, for example a 'White card' to enable him to work in the construction industry.
3. The Minister acknowledged the applicant has "some, but limited, meaningful social links to the Australian community".[65] The Minister also acknowledged the applicant's recent marriage to Ms P after several years of their partnership and the happiness their marriage has brought to them both. The Minister acknowledged Ms P and her son should be regarded as "immediate family members" of the applicant in Australia.
4. The Minister acknowledged, therefore, that pursuant to paragraph 8.3 (1) of Direction 110, the Tribunal "must consider any impact" a decision to refuse to grant the applicant the visa would have on Ms P and her son. Paragraph 8.3(1) of Directions 110 states:

Decision-makers must consider any impact on the decision on the non-citizens 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.

1. The Minister acknowledged that a refusal decision "would impact negatively" on Ms P because she would need to live with ongoing uncertainty as to whether the applicant will be able to remain in Australia which, the Minister acknowledged, "could exacerbate her anxiety and cause significant emotional hardship."[66]
2. The Minister also acknowledged the applicant's positive connections with other members of the Australian community including members of Ms P's family, evidenced by the numerous references and letters of support for the applicant, although contending it was unclear whether at least some of these people have a right to remain in Australia indefinitely.
3. With reference to paragraph 8.3 (2) a), the Minister submitted less weight should be given to the third primary consideration because the applicant offended only two and a half years after arriving in Australia.
4. The Minister submitted this primary consideration "weighs marginally" in favour of not refusing the visa, when placed in the balance with the other considerations.
5. In my view, a noteworthy aspect of the evidence regarding the applicant's ties to the community is the quantity and breadth of support the applicant has engendered from many people across many facets of the Australian community despite his incarceration in prison for a violent crime and then in immigration detention, from August 2015 until he was released into the community on conditions in August 2025. In particular, that support has universally commented positively on his contribution to the community and the contribution he would continue to make if granted the visa.
6. The applicant's positive contribution was, in my view, to the full extent he could give, having regard to his incarceration and detention. His referees speak about him contributing positively to sporting events, particularly soccer and cricket. They speak about him continually wishing to help others and doing so as best he can.
7. In particular, as the Minister acknowledged, his five year relationship with Ms P, despite his incarceration, and now their marriage and the widespread community support for their marriage supports a conclusion of his positive contribution to his community. As the Minister acknowledged, refusal of the visa would result in ongoing emotional strain for Ms P, her child and her wider family as they continue to live with uncertainty as to whether the applicant would be able to remain in Australia.
8. Whilst I gave less weight to this consideration by reason of the short time between when the applicant arrived in Australia and when he offended, I did not regard this as a significant consideration because the offence occurred 10 years ago without further offending. The phrase "began offending", in the sense of when ongoing offending began, is not applicable in this case.
9. In my view, having regard to the negative impacts on many people should the visa be refused and the strength of his family and social links with the Australian community developed over the past 10 years, the third primary consideration weighs heavily in favour of not refusing the visa.

1. The fourth primary consideration in paragraph 8 is the best interests of minor children in Australia.
2. As mentioned, the applicant has a step-son, aged five, consequent on his marriage to Ms P. I will refer to him as T. As the Minister acknowledged, notwithstanding his incarceration and detention until August 2025, the applicant has developed a strong relationship with T. The Minister acknowledged the applicant plays an important role in T's life, referring to evidence from Ms P's mother who spoke positively about the way the applicant cares for T.
3. Ms P and T attended the hearing in this matter. From the applicant's behaviour towards T, and T's towards the applicant, it was apparent to me that T has a warm relationship with the applicant and that the applicant has an important role in T's life. It would also seem, on the evidence, that the applicant has had a role in T's life since T was born.
4. The applicant and T's mother (Ms P) have been in a relationship throughout all if not the majority of T's life, and are now married. On the evidence of others as detailed above, the applicant and Ms P have a strong commitment to each other and to their futures together, and T being a part of that family. In my view, in these circumstances, it is clearly in the best interests of T that the applicant continue his role as T's stepfather in a meaningful way. Refusal of the visa is, consequentially, not in the best interests of T who would be left with ongoing uncertainty regarding the applicant remaining in his life. In my view, this consideration weighs heavily in favour of not refusing the visa.

1. The fifth primary consideration is the expectations of the Australian community. Paragraph 8.5 details this consideration as follows:

8.5. Expectations of the Australian Community

(1) 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 to not allow such a non-citizen to enter or remain in Australia.

(2) 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, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

1. a) acts of family violence; or
2. b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
3. c) 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;
4. d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
5. e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
6. f) worker exploitation.

(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community

(4) 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.

1. This consideration has been the subject of much judicial[67] and tribunal comment.[68] In summary, the Tribunal (as the decision-maker) must regard the fifth consideration as a kind of deeming provision about what the Australian community expects, as articulated by the Minister, and have due regard to that view when making its decision. In particular, as a norm, the community expects a person who has engaged in serious conduct would not be allowed to remain in Australia.
2. In relation to that norm, in FYBR v Minister for Home Affairs (FYBR), Charlesworth J sitting as a member of a Full Court of the Federal Court commented on this consideration, materially the same in an earlier Ministerial direction, as follows:

The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion. Flexibility in the decision-making process is reinforced by cl 8(4), which requires no more than that the government's assessment of community expectations is "generally" to be afforded greater weight than the "other considerations" listed non-exhaustively in cl 12.[69]

3. I refer also to Stewart J_'s_ explanation of community expectations in FYBR:

First, "community expectations" as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, "community expectations" as expressed by the Government do not speak to the outcome in any particular case - they are to be understood and applied normatively.[70]

To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:

1. non-citizens will obey Australian laws when in Australia;
2. it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;
3. in a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.

Understood in this way, community expectations are simply, and informally, expressed as follows: "If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive." This limited expression of "community expectations" by the Government is, one would expect, quite uncontroversial which is an attractive feature given the heterogeneity of views in this area.[71]

1. As the Minister pointed out, pursuant to paragraph 8.5 (3), the expectations of the Australian community as set out in paragraph 8.5 apply "regardless of whether [the applicant] poses a measurable risk of causing physical harm to the Australian community".
2. The Minister submitted that the expectations of the Australian community "will in most cases call for refusal, without dictating an inflexible conclusion" and that the fifth primary consideration in this case "weighs heavily in favour of refusal."[72] I agree.
3. The applicant did not address the fifth primary consideration, but I recognise there is little if anything he could have said contrary to the Minister's submission. The expectation of the Australian community is, as stated, that as a norm where a person has engaged in serious conduct in breach of an expectation that non-citizens will obey Australian laws, as the District Court found the applicant has done, the applicant should not be allowed to remain in Australia. In my view, the fifth primary consideration weighs heavily in favour of refusing the grant of the visa.

1. I turn to the three non-exhaustive "other considerations" in paragraph 9. Details concerning these three other considerations are provided in paragraphs 9.1 (including 9.1.1 and 9.1.2 concerning non-citizens covered or not by a protection finding), 9.2 and 9.3, respectively, which I took into account.

1. As mentioned, the applicant has been found to satisfy the criteria for a protection visa in s 36(1A) of the Act. Accordingly, pursuant to s 197C(5)(a) of the Act, a protection finding has been made in respect of the applicant. Consequently, pursuant to s 197C(3) of the Act, the applicant's removal to Sri Lanka is not required or authorised. Put another way, as the Minister acknowledged, Australia has non-refoulement obligations to the applicant that preclude his removal to Sri Lanka.
2. If the Tribunal affirms the decision to refuse to grant the applicant the visa, the applicant will not be returned to Sri Lanka. Rather, he will continue to live lawfully in the Australian community on the BVR.
3. Arising from the BVR, the applicant must comply with the conditions in the BVR including reporting conditions 8401 and condition 8543 that he attend at a place, date and time specified by the Minister "in order to facilitate efforts to arrange and effect his .. removal from Australia."
4. Regarding the BVR, the Minister submitted the Tribunal should adopt the reasoning of DP Burford in KZYH and Minister for Immigration and Citizenship in which she said:

It is clear that a legal consequence of refusal would be the Applicant would remain on a removal pathway on a BVR. His exposure to removal to a third country is a legal consequence of the decision. In my view, the significance of that legal consequence for the purpose of this decision does not rest in the third country to which the Applicant might be removed if an agreement was reached with respect to him, or a class of persons to which he belongs (such as persons affected by the decision in NZYQ). The significance lies in the ongoing uncertainty created by the prospect of removal and the lack of any avenue for review. Such consequences are significant, particular for the Applicant who has ongoing need for mental health support and treatment. In my view that consequence weighs heavily against exercising the discretion to refuse the visa in the Applicant's case.[73]

1. I agree. The applicant did not suggest otherwise.
2. I accept the Minister's submission that the 'removal pathway' arising from the applicant being on a BVR needs to be placed in context. There is, presently, no other country but Nauru with which the Commonwealth has entered an arrangement for removal of people to whom Australia has non-refoulement obligations and who no longer have a right to remain in Australia. Presently, the applicant is not person in respect of whom steps have been taken for the purpose of removing him to Nauru. It follows that if the decision to refuse the grant of the visa is affirmed the applicant will remain in the community on the BVR. There is, as the Minister accepts, a possibility of that changing but the Tribunal cannot speculate on what might occur. As pointed out in KZYH with reference to Federal Court authority,[74] I must apply Direction 110 by reference to the facts and circumstances that presently exist. I cannot speculate as to the future.
3. The applicant's circumstances are materially similar to those of the applicant in KZYH, namely there is a possibility of his removal to a third country, although without information as to when or if that will or might occur, The legal consequence of refusing the visa is the applicant (and others) having to live with the uncertainty of whether that outcome might eventuate and the lack of any avenue for review[75] if it does.
4. The question is what weight should be given to that legal consequence. In my view, it is necessary to look at the relevant facts and circumstances. The applicant is not, for example, a single man recently arrived in Australia without material connection to the Australian community. Rather, he has been here for 10 years. He has a long-standing partner, now wife, and a child who look to him for emotional and practical support and to whom he wishes to provide that support. He has developed connection with family and friends. On the evidence, he is doing all he can to make a positive contribution to the Australian community in a law-abiding manner.
5. All of those circumstances lack foundation for the future if the visa is refused and the applicant can remain in Australia only if he complies with the conditions in his BVR which include co-operation with his removal from Australia if and when the Minister chooses.
6. I also take into account the extensive medical evidence concerning trauma and depression the applicant has experienced during his time in Australia arising from ongoing uncertainty regarding his future.[76] In my view, in this case, the consequence of profound ongoing uncertainty about whether he can continue to live and plan his life with his wife and child and prospective further children[77] in Australia weighs heavily in favour of not exercising the discretion to refuse the visa.

1. The second 'other consideration' under paragraph 9, read in conjunction with paragraph 9.2, involves consideration of the extent of any impediments the applicant may face if removed from Australia to his home country, namely Sri Lanka.
2. The Minister submitted no weight should be given to this consideration because there is no prospect of the applicant being removed to Sri Lanka by reason of Australia's non-refoulement obligations to him. The Minister also submitted I should not consider impediments of this kind by reference to the hypothetical prospect of his removal to Sri Lanka.
3. The applicant did not make any submissions regarding the second other consideration.
4. In my view, the Minister's submissions are correct. I gave this consideration neutral weight.

1. I was not taken to any evidence to suggest refusal of the visa could have an impact on Australian business interests. The applicant did not suggest otherwise. Nor did the Minister. I gave this consideration neutral weight.

1. The Minister submitted that the first and fifth primary considerations, protection of the Australian community and the expectations of the Australian community, weigh heavily in favour of refusing the visa and that exercise of the discretion to refuse is the correct and preferable decision. On that basis, the Minister submitted, the decision under review should be affirmed.
2. The applicant submitted:

The Tribunal can be satisfied that the applicant does not pose a threat to the Australian community and that therefore there is another reason to grant him the visa, based on assessment of his behaviour since he was arrested, an acceptance that he has a reasonable basis for maintaining his innocence and therefore a reasonable explanation for not accepting guilt, Australia's non-refoulement obligations and his family ties to Australia.[78]

1. When weighing the competing considerations in this case, I kept in mind that the first primary consideration, the safety and protection of the Australian community, is the highest priority of the Australian Government and should generally be given greater weight than the other primary considerations.
2. I gave greater weight to the primary considerations than the other considerations. By reference to the evidence, I compared and balanced the different considerations by reference to the facts and circumstances of this case. In conducting the weighing and balancing exercise, I had regard to the following comments of the Court in CRNL:

34 ... in order to meet the requirements of the Direction, the Tribunal had to undertake a process of balancing the different considerations, or evaluating them against and in comparison to each other, in order to arrive at a decision whether there is "another reason" to revoke the cancellation.

35. The balancing process is directed to determining whether there is "another reason" why the visa cancellation should be revoked. It requires an identification of the matters that may constitute "another reason" and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute "another reason" capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.[79]

1. The Court's comments in CRNL were in the context of whether there was another reason to revoke the cancellation of a visa, but in my view the comments also apply to the question whether the discretion to refuse a visa should be exercised.
2. When considering what weight to give to the first primary consideration, I took into account that the crimes for which the applicant was found guilty, convicted and sentenced are crimes of violence and are very serious. I took into account the serious impact on B. As mentioned, for the reasons given, I did not consider the applicant's claim of innocence to be relevant either to the nature and seriousness of his crimes or to any of the other considerations in Direction 110.
3. However, the applicant's crimes occurred 10 years ago and I am satisfied on the evidence that the applicant has 'come a long way' since then. For the reasons given, I assessed the risk the applicant poses to the Australian community to be low. I concluded that protection of the Australian community in this case weighs moderately, not heavily, in favour of exercising the discretion not to grant the visa.
4. The fifth primary consideration, for the reasons given, weighs heavily in favour of refusing to grant the visa notwithstanding the low risk of the applicant further offending.
5. The second primary consideration is not relevant the reasons given.
6. The third and fourth primary considerations, in my view, for the reasons given, both weigh heavily in favour of not refusing the visa. Whilst not giving it the same weight, the second 'other consideration' also weighs heavily in favour of not refusing the visa. To some degree, these three considerations interact in the sense that the applicant presents in this proceeding at this time as a person well connected to the Australian community with a wife and a young child with a strong commitment to his wife and child and to live in a law-abiding manner. His removal from Australia would have a devastating emotional and practical impact on his family. I recognise that refusal of the visa does not mean his removal from Australia, but the possibility of his removal remains. As mentioned, the ongoing uncertainty regarding the prospect of the applicant's removal and the emotional strain that uncertainty brings to the applicant and his family weighs heavily in favour of not refusing the visa.
7. Having balanced and evaluated the competing considerations, I concluded the first and fifth primary considerations are outweighed by the considerations in favour of not refusing the visa. In my view, therefore, the preferable decision is to set aside the decision under review and substitute a decision that the visa not be refused. I will order accordingly.

Solicitor for the Applicant: Justice Law Practice

Solicitor for the Respondent: Australian Government Solicitor

[3] AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1252

[4] AAI20 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2024] FCA 1223

[15] [2018] AATA 310

[16] [2018] AATA 310 at [13]- [14]

[17] See, for example, Frugtniet v ASIC [2019] HCA 16 at [51]

[18] LPDT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor [2024] HCA 12 at [19]; Khaled Ayache and Minister for Immigration and Border Protection [2018] AATA 310

[28] Respondent statement of facts, issues and contentions at [28]

[29] Applicant's amended statement of facts, issues and contentions at [73]

[33] G documents, G5/73 at [263], [272[ and [276]

[34] G documents, G5/73 at [265], [273[ and [277]

[35] [2019] FCAFC 202

[36] [2019] FCAFC 202 at [14]

[37] [2019] FCAFC 202 at [17]

[38] [2019] FCAFC 202 at [14]

[39] [2019] FCAFC 202 at [63] and [79]

[40] [2019] FCAFC 202 at [193]

[41] [2019] FCAFC 202 at [194] - [196]

[42] [2018] FCA 1924

[43] [2018] FCA 1924 at [37]

[46] [2023] HCA 37

[48] On 3 November 2025, this condition was varied to require the applicant to report weekly rather than daily: Exhibit R4

[50] [2009] AATA 512

[51] [2019] FCAFC 63

[52] Supplementary G documents, SG 1/20

[53] Supplementary G documents, SG 1/23

[54] Supplementary G documents, SG 1/23

[55] Supplementary G documents, SG 1/25

[56] YKSB v Minister for Home Affairs [2020] FCA 476 at [45], cited with approval in De Silva v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 831 at [35]

[65] Respondent statement of facts, issues and contentions at [56]

[66] Respondent statement of facts, issues and contentions at [59]

[67] Uelese v Minister for Immigration and Border Protection54 [2015] FCA 358 at [64] - [65]; YNQY and Minister for Immigration and Border Protection [2017] FCA 1466 at [76]; FYBR v Minister for Home Affairs [2019] FCA 185 at [75] - [76] and [100] - 101]

[68] HSRN and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 4377 at [44]; Khaled Ayache and Minister for immigration and Border Protection [2018] AATA 310 at [60]

[69] [2019] FCAFC 185 at [75]- [76]

[70] 2019] FCAFC 185 at [91]

[71] [2019] FCAFC 185 at [101]- [102]

[72] Minister's statement of facts, issues and contentions dated 4 July 2025 at [66] - [67]

[74] [2025] ARTA 1718 at [175] at [183]

[75] [2025] ARTA 1718 at [175] and [185]

[77] The applicant and his wife wish to have children

[78] Applicant's amended statement of facts issues and contentions at [86]

[79] [2023] FCAFC 138 at [34]- [35]