1. The Tribunal is bound by s 499(2A) to comply with any directions made under the Migration Act. In this case, Direction No. 110 - Migration Act 1958 - Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) has application.[4]
2. For the purposes of deciding whether to refuse a non-citizen's visa or whether or not to revoke the mandatory cancellation of a non-citizen's visa, paragraph 5.2 of the Direction contains several principles that must inform a decision-maker's application of the Primary and Other Considerations identified in Part 2 where relevant to the decision.
3. The principles that are found in paragraph 5.2 of the Direction are as follows:

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

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

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

(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a 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. Informed by the principles in paragraph 5.2 above, I must take into account the primary and other considerations in the Direction.
2. The primary considerations are:[5]

(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;

1. The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations.[7]

Protection of the Australian community - 8.1 of Direction 110

1. When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. 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.[8] As required by paragraph 8.1(2) of the Direction, I give consideration below 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.

The nature and seriousness of the non-citizen's conduct - 8.1.1 of Direction 110

1. When considering the nature and seriousness of the Applicant's conduct, I take into account his criminal activity and other serious conduct. The Applicant has been convicted of seven criminal offences between 2018 and 2024.
2. On 26 April 2019 the Applicant was sentenced in the Penrith Local Court to 14 months imprisonment for an offence of affray which occurred on 9 June 2018 and an offence of failing to appear in Court on 17 May 2018. He had one prior offence for possessing or using a prohibited weapon for which he had been convicted on 9 November 2018. The sentencing judge assessed the objective seriousness of the offence of affray to be in the mid-range in relation to like matters that come before the court. He noted that the Applicant reported he was under the influence of alcohol at the time of the offending and that alcohol had been problematic for a period of 12 months leading up to the offending as a consequence of being stabbed and losing sight in his eye in January 2018. He noted that the Applicant ceased taking medication for his schizophrenia at the time of the offence and that he had expressed an understanding in relation to his involvement in the offence and recognised the impact of his behaviour. He referred to a sentencing assessment report which assessed him as a medium risk of reoffending and a need for a referral for alcohol and drug assessment.
3. The Applicant was released from his prison sentence in around April 2019. He tried to get his life back together by finding work and staying off alcohol for a couple of years. However, he then lost his mother in late 2022 and did not cope well. He started drinking again and taking party drugs on an increasing basis until it became daily. His relationship with his partner, which had lasted about six years, soured.
4. In July 2023 he was charged with supplying and possessing a prohibited drug. He explained that he was taking ice at the time and sold a bit to get by, but most of it was for personal use. On 29 September 2023 he was sentenced to a term of four months imprisonment and a community corrections order to be of good behaviour for 12 months. The sentencing judge described the Applicant as "a street dealer for the purpose of possession for supply based on your admissions to fund your own drug habit." Shortly after being arrested and charged for these offences in July 2023 he attended his ex-partner's house to see his children. An argument developed with his ex-partner and he pushed her away. He said that he should never have put his hands on her and that he was under the influence of drugs at the time. On 27 February 2024 he was convicted of common assault and stalk/intimidate intend fear physical etc harm (domestic) and sentenced to 4 months imprisonment and a community correction order for 12 months. The sentencing judge noted that the Applicant assaulted and intimidated his then partner and that "there was a young child present, requiring the mother of the child to put down the child, and a forceful push to the left arm and a slap on the forehead." He considered that a jail term was appropriate because the nature of the offending was serious being an assault in a domestic context together with intimidation resulting in continuing fear of harm.
5. The offending included an act of family violence which is viewed very seriously by the Australian Government and community. The repeated offending has a cumulative effect but I note in terms of frequency that the offending was limited to two confined periods in mid-2018 and mid-2023.
6. I conclude as to the nature and seriousness of the Applicant's conduct that it was very serious. It is a very significant factor in terms of whether I am satisfied that there is 'another reason' to set aside the non-revocation decision.

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

1. In considering the need to protect the Australian community from harm, I 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 repeated, is so serious that any risk that it may be repeated may be unacceptable.[9] As required by paragraph 8.1.2(2) of the Direction, I also 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. In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.[10] Her Honour said that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future. It is my view based on the following reasons that the Applicant's 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 is unacceptable.[11]

Nature of harm if further criminal or other serious conduct - 8.1.2(2)(a) of Direction 110

1. If the Applicant were to engage in further similar criminal offending, the nature of the harm would be very serious in particular because of the impact of family violence on the victim and the children and the impact on the community of supplying drugs.

Likelihood of further criminal or other serious conduct - 8.1.2(2)(b) of Direction 110

1. The Applicant has expressed remorse for his offending and says that he will not re-offend because he no longer takes drugs or alcohol and is committed to living a crime free life, having learnt from his periods of imprisonment. The Applicant recognises that his poor mental health and dependence on drugs was a contributing factor to his criminal behaviour and to address this he has been attending sessions with Elliot Webster from the Australian Community Support Organisation since September 2024. There have been 14 sessions and a total of 25 hours of intervention. His engagement with Mr Webster was interrupted by a family tragedy in March 2025 but otherwise the Applicant has been working on a series of positive goals set out in a letter from Mr Webster dated 16 April 2025. Further, the Applicant has attended Bible study and Sunday church services since being released from detention. He goes to the gym up to five times a week which he says helps his mental state. The Applicant has expressed a desire to continue to engage with rehabilitative processes and to remain drug and alcohol free.
2. The Applicant has a very strong relationship with his sister who gave written and oral evidence to the Tribunal. The Applicant helps with her five children, babysitting and taking them to the park
3. It is a positive factor that the Applicant has not engaged in any criminal activity or taken any drugs since he was released from detention on 14 August 2024. The Applicant has obtained employment and is living with his sister. He has a positive relationship with a woman with whom he wants to move out and have children very soon. This stable, healthy and drug free environment, which has been maintained for over 12 months in the community, is a very positive factor in terms of whether the Applicant will reoffend. The Applicant has shown that his commitment to a better life is genuine and I consider that his risk of reoffending is low.

Conclusion as to protection of the Australian community - 8.1 of Direction 110

1. There is both a backward- and forward-looking assessment to be made when considering the protection of the Australian community. It requires a consideration of the Applicant's past conduct, namely his offences involving drugs and violence, and a consideration of the risk of further offending. Further, it is the Government's view expressed in paragraph 8.1.2(1) of the Direction that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I believe that this is a case where the Applicant's conduct and the harm that would be caused, if it were to be repeated, is not so serious that any risk that it may be repeated is unacceptable. Nevertheless, the Applicant has committed serious crimes and there is a real, albeit low, risk of reoffending. It follows that the protection of the Australian community is a factor that weighs against revocation of the cancellation decision but only moderately so.

1. The Applicant has engaged in family violence which caused fear to his ex-partner. In considering the seriousness of the family violence engaged in by the Applicant, the following factors in paragraph 8.2(3) are 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:

(i) the extent to which the person accepts responsibility for their family violence related conduct;

(ii) the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

(iii) efforts to address factors which contributed to their conduct; and

(d) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.

1. The Applicant assaulted and intimidated his ex-partner in July 2023. The violence occurred in the presence of young children. There are no other reported acts of family violence. The Applicant has expressed great remorse which I accept is genuine and his evidence to the Tribunal established his understanding of the impact of his behaviour on his ex-partner and the children. The Applicant has engaged in counselling sessions with Mr Webster, however, he has not engaged in any rehabilitative programs directed specifically to family violence.
2. I consider that the act of family violence is very serious but I note that it was an isolated event and that the Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the Applicant. He accepts responsibility for the conduct and understands its impact, but he has not engaged in appropriate rehabilitative programs. It is a very significant factor in terms of whether I am satisfied that there is 'another reason' to set aside the non-revocation decision.

Strength, Nature and Duration of Ties to Australia - 8.3 of Direction 110

1. This primary consideration provides at paragraph 8.3 of Direction 110:

(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

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

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

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

b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

1. The Respondent indicated that if the non-revocation decision is affirmed, the Applicant will not be removed from Australia in the foreseeable future and that he would remain on a bridging visa. It follows that the impact on family members of any decision is less significant because the Applicant will remain in the community irrespective of the outcome of this hearing. I note also that the Applicant has applied for a protection visa.
2. Nevertheless, the Applicant has six siblings in Australia who are citizens or permanent residents, as well as two Australian citizen children and at least five Australian citizen nieces and nephews. The evidence given by the Applicant's sister shows a concern for the Applicant if he is unsuccessful on this application. She said that the Applicant is very scared of being forced to return to detention. In my view the Applicant's immediate family members in Australia would be adversely impacted if the non-revocation decision was affirmed, but I give this minimal weight because the Applicant will remain in the community irrespective of the outcome of this hearing and will not be returned to Sudan.
3. The strength, nature and duration of the Applicant's ties to the Australian community are very significant. He arrived in Australia as a young child of six years old and he has lived in Australia for 19 years. I give significant weight to this factor because the Applicant arrived as a young child, has spent his formative years in Australia and has contributed positively to the Australian community through his education, employment and family activities. The Applicant has extremely strong ties with a very extended family living in Australia.
4. The Applicant's ties to Australia are an extremely positive factor in terms of whether the cancellation decision should be revoked.

Best interests of minor children - 8.4 of Direction 110

1. I must determine whether the visa refusal and the non-revocation of the cancellation of the Applicant's visa is, or is not, in the best interests of a child who is affected by the decision. The following that I must consider where relevant to this application include:[12]

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

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

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

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

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

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

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

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

1. The Applicant has a son born January 2020 and a daughter born June 2023. The mother of these children is his ex-partner and currently his Apprehended Violence Order prevents the Applicant seeing them until February 2027. The Applicant had significant involvement in his son's life up until his return to prison in July 2023. The Applicant has only seen his daughter once due to his imprisonment. He has not seen his children since being released from detention but he would like to see them and understands that he has to go to court to get access to his children. He said that his current partner agrees that he should try to re-engage with his children and she supports him in that endeavour.
2. The Respondent accepts that the best interests of the Applicant's children favour him to remain in Australia but says that limited weight should be given in the circumstances. Those circumstances include that the children's mother is currently fulfilling a parental role in relation to them and that he has committed offences in their presence in the past. There is no evidence from the children's mother about how their interests would be affected but I do accept that the Applicant has a genuine love for them and a desire to have a role in their life which would be beneficial to them. His children are still very young and would benefit from having their father in their lives whilst growing up. For that reason, it would be in the best interests of his children if the cancellation decision was revoked.
3. The Applicant also has three nephews and two nieces from his sister who gave evidence to the Tribunal. They are aged between six and 15 years old. The Applicant helps to care for these children when she works night shifts and often goes to the park with them. The Respondent accepts that the best interests of the Applicant's nieces and nephews are for the Applicant to remain in Australia but says this should be given limited weight in circumstances where his relationship with them is nonparental and has been limited in the past due to his time in prison.
4. I note that the Applicant will remain in Australia for the foreseeable future irrespective of the outcome of this application and that, subject to obtaining the necessary court orders, the Applicant will be able to spend time with the minor children affected by the decision. I conclude that the best interests of minor children is a factor that weighs moderately in favour of revocation of the cancellation decision.

Expectations of the Australian community - 8.5 of Direction 110

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 remain in Australia.[13] The Applicant has failed to obey the laws of Australia and has engaged in drug related criminal activity and violence including family violence.
2. I conclude that the Australian community expects that the Australian government should cancel the Applicant's visa. However, the Australian community would afford the Applicant a higher level of tolerance for his criminal conduct because he has lived in Australia from a very young age and for most of his life. This is a factor that weighs moderately against revoking the cancellation decision.

1. In deciding whether there is 'another reason' to revoke the cancellation of the Applicant's visa, I must also take into account the 'other considerations' listed in the Direction, where relevant, but these are not exhaustive.[14]

Legal Consequences of Decision - 9.1 of Direction 110

1. The Applicant has articulated the prospect of Australia breaching its non-refoulement obligations as a reason for not cancelling the Applicant's visa. This is in addition to, and distinct from, his underlying claimed fear of harm if removed to Sudan. However, I consider that these consequences are not relevant because there is no prospect of Australia breaching non-refoulement obligations and that there is no prospect of the Applicant suffering harm in Sudan in the circumstances where the Respondent has said that the Applicant will not be removed from Australia in the foreseeable future. The Respondent accepts that even if this application is refused the Applicant will remain in Australia on a bridging visa. Further, I consider that the Tribunal should defer consideration of non-refoulement obligations because the Applicant has applied for a protection visa.
2. The prospect of being on a bridging visa compared to a visa free of conditions would negatively impact the Applicant although only moderately so. These negative consequences mean that this is a factor that weighs in favour of revoking the cancellation decision but only moderately so.

Extent of impediments if removed - 9.2 of Direction 110

1. The Direction requires that I consider the extent of any impediments that the Applicant may face if removed from Australia to his home country in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

(a) the Applicant's age and health;

(b) whether there are substantial language or cultural barriers; and

(c) any social, medical and/or economic support available to him in that country.

1. The Applicant is aged 25. He has lost vision in his right eye and he has been diagnosed with schizophrenia, although he said that his current physical and mental health is ok.
2. As previously stated, the Applicant is unlikely to be removed to Sudan and therefore the extent of impediments if removed is not a relevant factor. There is no doubt that if the Applicant were required to be removed to Sudan he would face extensive impediments in establishing himself and maintaining basic living standards. This is because the Applicant left Khartoum when he was about four years old. He spent about two years in Egypt before coming to Australia. He has no family or social connections in Sudan and there would be substantial language and cultural barriers. The Applicant has genuine fears of harm due to tribal and more general conflict in Sudan. I give this factor minimal weight because the Applicant will not be removed to Sudan in the foreseeable future.

Impact on Australian business interests - 9.3 of Direction 110

1. There was no evidence of impact on Australian business interests within the meaning of the Direction. This factor is neutral.

1. I have considered the specific circumstances relating to the Applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I am satisfied that there is 'another reason' to revoke the cancellation decision.
2. The primary considerations of family violence and the protection and expectations of the Australian community weigh against the Applicant but in my view they are outweighed by the Applicant's ties to Australia and the best interests of his children.
3. Whilst the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations, in this case I would give more weight to the Applicant's ties to Australia because he has lived in Australia since he was six years old and all of his family including his children live in Australia. In weighing up these factors I note that the Applicant has a low risk of reoffending and has been in the community for the last 12 months drug and crime free. The Applicant committed very serious crimes but Australia would afford a higher level of tolerance for his criminal behaviour because he has lived in the Australian community for most of his life and from a very young age. The evidence of his good behaviour in the community over the last 12 months suggests that he has rehabilitated himself and therefore does not pose a significant risk to the Australian community. The Applicant's children are still very young and he has time to play a significant role in their upbringing assuming that he obtains the appropriate court orders to do so.
4. I find that there is another reason to revoke the cancellation decision.

1. The non-revocation decision should be set aside and substituted with a decision that the cancellation decision is revoked.

1. I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.

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

[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.

[2] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [22], [36].

[3] [2021] HCA 41, [14].

[4] Direction No. 110 - Migration Act 1958 - Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA ('the Direction').

[10] [2014] FCAFC 673; (2014) 225 FCR 424.

[14] SZRTN v Minister for Immigration and Border Protection [2014] FCA 303; (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.