MIGRATION - mandatory visa cancellation - failure to pass character test - representations - review of decision not to revoke visa cancellation - Ministerial Direction No. 110 - primary and other relevant considerations - protection of Australian community - seriousness of conduct ‑- risk of reoffending - mental illness - strength, nature and duration of ties to Australia - expectations of the Australian community - legal consequences of non-revocation - non-refoulement claims - protection visa refused - information relating to mental illness withheld and not considered - real risk of significant harm - extent of impediments if removed from Australia - balance of considerations - decision set aside and substituted

Migration Act 1958 (Cth), ss 5H, 36, 189, 197C, 198, 499, 500, 501, 501CA

Ali v Minister for Home Affairs [2020] FCAFC 109

Applicant S270/2019 v Minister for Immigration and Border Protection [2020] HCA 32

AZK15 v Minister for Immigration and Border Protection [2015] FCA 1444

BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCAFC 14

Drame v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] HCATrans 206 and 207

FYBR v Minister for Home Affairs [2019] FCAFC 185, Ismail v Minister for Immigration

Citizenship and Multicultural Affairs [2024] HCA 2

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559

NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37

Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17

Plaintiff S22-2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36

Tanielu v Minister for Immigration and Border Protection [2014] FCA 673

TVVT and Minister for Immigration and Multicultural Affairs [2025] ARTA 364

Direction no. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024)

1. NYQK engaged in conduct which resulted in the cancellation of his Refugee (Class XB) (Subclass 200) visa (Visa) under s 501(3A) of the Migration Act 1958 (Act). NYQK made representations and sought revocation of the Visa cancellation decision. A delegate of the Minister decided not to revoke the decision. NYQK lodged an application for review of the non-revocation decision by the Tribunal.
2. The review is subject to legislative procedures set out in s 500(6) to (6L) of the Act.

1. The following background facts are established by the documentary and oral evidence before the Tribunal.
2. NYQK was born in 1996 in Burundi. He is a Twa man from the Abatwa ethnic tribe.
3. He had a difficult childhood. His four brothers died of food poisoning when he was an infant.
4. In 2000, when NYQK was 4 years old, he and his parents fled from tribal violence in Burundi. The family resided in a refugee camp in Tanzania. He has two older sisters who were separated from the family. One sister resides in Burundi and his other sister resides in the Kakuma refugee camp in Kenya. NYQK was sexually assaulted in the camp. His parents separated. His father married another woman and relocated to Australia in or about 2007. His mother subsequently re-partnered with 'CM'.
5. On 9 October 2009, NYQK was granted a Visa.
6. On 28 October 2009, NYQK first entered Australia with his mother and CM.[1] He was 13 years old. NYQK has many relatives in Australia and an uncle in Burundi.
7. NYQK attended school to year 12 and learnt English. After leaving school, he studied courses in construction, warehousing, early learning and childcare and then subsequently found work.
8. As a teenager, he was exposed to family violence perpetrated by CM against his mother. His mother and CM separated in or about 2011. His mother subsequently became unwell and formed a partner/carer relationship with 'J'. NYQK resided with his mother and J.
9. In 2020, domestic incidents occurred in which NYQK caused damage to his mother's house during an argument with her and J. Police obtained a 5-year Domestic Violence Order which was subject to conditions, including that NYQK not approach within 500 metres of his mother's residence. NYQK continued to reside with his mother and J, at least sporadically, in breach of the DVO.
10. NYQK engaged in further domestic incidents and he was charged with breaching the DVO on 3 occasions in June 2020. He was sentenced to a 3-month term of imprisonment, during which a diagnosis of schizophrenia was made. NYQZ was hospitalised and placed under a mental health treatment order for 2 years.
11. Following his release from gaol, NYQK resided with an aunt, 'N', until in or about 2022. He resided with his father for a time. Thereafter, he was homeless.
12. NYQK committed a further breach of the DVO in June 2023.
13. NYQK committed a number of minor fare evasion and traffic offences, including 3 speeding offences, one use of a mobile telephone offence, one low range drink driving offence, one careless driving offence and failing to stop at a red light.
14. On 11 January 2024, NYQK unlawfully entered premises and assaulted a police officer. He was taken into custody. On 3 April 2024, NYQK was convicted of assaulting the police officer, entering premises with intent, wilful damage and possession of a knife in public.[2] He was sentenced to a 12-month term of imprisonment and immediately released on parole, having served 83 days.[3]
15. NYQK committed further offences and, on 4 June 2024, he was taken into custody on remand.[4] On 19 July 2024, NYQK was convicted of property damage, trespass, drug and breach of bail offences for which he was sentenced to three 8-month and three 1-month concurrent terms of imprisonment which were suspended for 2 years after 2 months had been served.[5] He was incarcerated. The suspension did not have effect until 15 January 2025.
16. On 16 August 2024, NYQK's Visa was cancelled under s 501(3A) of the Act.[6]
17. On 20 August 2024, NYQK requested revocation of this decision and made related representations to the Minister consistent with the invitation to do so.[7]
18. On 15 January 2025, NYQK was released from prison and taken into immigration detention.
19. He made further representations on 16 January 2025[8] and 17 April 2025.[9]
20. On 10 June 2025, NYQK lodged an application for grant of a Protection (Subclass 866) visa (Protection Visa application).
21. On 4 September 2025, a delegate of the Minister decided not to revoke the decision to cancel NYQK's Visa.[10]
22. On 5 September 2025, NYQK lodged an application for review of this decision by the Tribunal.[11]
23. In early September 2025, NYQK's mother died.
24. On 16 September 2025, a delegate of the Minister decided to refuse NYQK's Protection Visa application as the delegate was satisfied the criteria in s 36(2) of the Act were not met and NYQK is not a person in respect of whom Australia has protection obligations (Protection decision).[12] The Tribunal has no jurisdiction to review this decision in these proceedings.

1. NYQK has a history of offending conduct from December 2014. He admits to use of and addiction to cannabis. In the period from December 2014 to February 2020, he has a number of traffic, fare evasion and other offences, including contravening police directions (2014) and obstructing police (2019).[13]
2. The nature of his subsequent offences, to which he entered guilty pleas, is amply conveyed in the Court Briefs and police reports on which he was convicted and sentenced. NYQK accepts much of the factual information alleged in these documents.
3. Police reported an incident on 27 February 2020 in the following terms:

The incident arose from the aggrieved [J] being dependant on alcohol and the respondent [NYQK] having a drug addiction. The aggrieved can not speak English and Police were unable to obtain a version from the aggrieved due to his gross level of intoxication and language barrier. Police spoke to the respondent whom advised that he has had girl problems and punched the hallway wall, causing minor damage. Whilst speaking to both parties, Police obtained a verbal version from another family member, aggrieved's biological adult son, who observed partial incident and advised that the respondent became angry for no reason and punched holes in the wall. As a result, a minor scuffle broke out between the aggrieved and respondent, however was not able to say who started the scuffle. No injuries observed to either the aggrieved or respondent. The witness to this incident is the respondent's biological mother, who can not speak English. Police established that the witness separated the aggrieved and respondent. The aggrieved has then contacted 000. QAS arrived and the aggrieved was conveyed to hospital due to his intoxication level and voluntarily went with QAS... > > ... Nil history of violence between the parties involved.[14]

4. A subsequent incident occurred on 19 March 2020:

At approximately 6:45pm on the 19th March 2020 the respondent [NYQK] had been arguing with the aggrieved (his mother) and the named person (his step father - [J]) regarding them not giving him money. The respondent has gone to his bedroom whilst the aggrieved has been in the kitchen and punched the wall multiple times causing a hole in it. The named person has called police and the respondent has pushed the named person trying to prevent him from calling police. The aggrieved has been extremely scared for her safety due to previous incidents with the respondent and has spoken to police on the phone whilst waiting outside until they arrived. Upon Police arrival, the Aggrieved was visibly upset. She also stated that the respondent had been smoking cannabis and upon speaking with him, Police believed him to be affected by drugs. The Agg stated on 18/3/20, an argument occurred between her, the named person and the respondent and as a result the respondent has smashed a window in his bedroom causing a very large hole in the glass. The Agg also advised that on the 27/2/20 the aggrieved and named person have contacted police where police have arrived. Police spoke to the respondent's brother who told them that the respondent had become angry for no reason and punched holes in the walls. A scuffle has taken place between the named person and the respondent and that on that occasion the respondent has also pinned his mother up against a wall in anger where she couldn't get free. This information was not told to the police that night but relayed on 19/3/20. Police sighted the damage to the window, holes in the wall in respondents bedroom, and further holes in the walls in the hall way. The aggrieved and named person are fearful of the respondent, as a result they have hidden all the knives in their house in fear that he will grab one and attack them with it. The aggrieved and named person are also concerned of his mental health as he seems to become angry and aggressive easily. The respondent appears to be dependent on drugs and is a frequent smoker of cannabis.[15]

5. The DVO was made on 26 March 2020.[16]
6. NYQK was convicted of breaching the DVO on 5, 20 and 29 June 2020 and on 18 June 2023.
7. On the facts alleged by police, on 5 June 2020, NYQK engaged in a verbal argument with his mother and step-father in the course of which he has broken the legs off a small side table and began pointing it at [the mother], and he had gone into his room and punched 2 small holes in the wall.[17] When police attended, NYQK's mother was sitting outside and was hysterical speaking in Kurandi.[18] On the alleged police facts, NYQK exited the bedroom saying that he didn't to talk to anybody and began to walk out the back door, whereupon he was detained.[19]
8. On 20 June 2020, police reported that NYQK was arrested walking on the street approximately 100 metres away from his mother's residence. On the police facts, the mother stated NYQK had arrived home and was very aggressive: he came inside and began punching the internal walls; he punched 5 holes in the gyprock walls before going outside and picking up rocks and then used the rocks to smash 5 glass windows; he then broke the letterbox using the metal fire hydrant cover.[20] NYQK admitted to smashing the windows and was reported to have had injuries to his knuckles consistent with punching the walls.
9. Police reported the incident on 29 June 2020 in the following terms:

At approximately 11:00pm on monday the 29th of June 2020 police were called to attend regarding a serious offence which did not involve [NYQK]. The incident was between two adult males at the address. Upon attending and dealing with that incident police located [NYQK] in the yard of in breach of his domestic violence order.[21]

10. In respect of the incident on 18 June 2023, police reported:

At about 8:55pm on the 18th of June 2023 police received an urgent call for service to attend the [mother's] residence of in relation to domestic violence incident reported by a visitor and former resident of the unit complex. The informant believed a male at the address was threatening his mother with a knife during a heated verbal argument. Upon arrival police spoke to the [mother] with the help of a friend interpreter over the phone... Upon entering the [mother's] residence police immediately located a male around a corner sitting on a bed. The male identified himself as [NYQK], the defendant in this matter... The defendant could not provide any lawful reason for being at the [mother's] residence. The defendant was placed under arrest for contravening a domestic violence order...[22]

11. NYQK contests the allegation he threatened his mother with a knife. He alleges he loved his mother, she was his main support, and he would never harm her or threaten her with a knife. The allegation NYQK threatened his mother with a knife is not made out on the present materials.
12. On 18 June 2022, NYQK used a mobile telephone while driving for which he was fined $1,033.[23]
13. On 9 January 2023, NYQK was found to be in possession of drug paraphernalia, including a 'chop bowl' and a waterpipe bong,[24] and agreed to complete a Drug Diversion Assessment program. He failed to complete the program.[25]
14. On 14 January 2023, NYQK committed traffic offences of low range drink driving and driving without due care or diligence.[26]
15. On 24 September 2023, the following incident is reported in the Court Brief:

At approximately 11:45am on the 24th day of September 2023 police were called to [a dwelling] by the managing real estate in relation to someone trespassing on their property. Police attended and entered the dwelling with permission from the managing real estate. Police located the defendant who identified himself as [NYQK]. He was escorted out the front of the dwelling and police re-entered the clear the property to ensure nil other persons present. At this time police located some drug items sitting on the floor of a bedroom surrounded by the defendant's personal property. There was an acrid smell of Cannabis from this bedroom. Police located a clip seal bag of a green leafy material which appeared to be Cannabis, and also some chopped up green material sitting in a bowl. There was also a home made waterpipe on the floor. Police seized these items. > > The green leafy material was 3.7grams. > > The waterpipe was made from a powerade bottle with a hose piece and cone piece. The defendant was arrested ... > > **Note: previously drug diverted** [27]

16. On 31 October 2023, NYQK admitted to using an unknown metal object to smash the small glass panel of the vehicle to unlock it and went to sleep inside the vehicle. The defendant stated he was homeless and needed a place to sleep for the night and he saw the vehicle had been abandoned at that location for over a week so decided to sleep in it.[28]
17. On 10 December 2023, NYQK failed to stop at a red light and was fined $619.[29]
18. On 11 December 2023, NYQK failed to appear in the Ipswich Magistrates Court in contravention of a bail undertaking.[30]
19. On 25 December 2023, NYQK was intercepted walking in public holding a kitchen knife:[31]

Police observed this male person holding a knife in his right hand. > > Police told the male person to walk over to the side of the roadway. Police then told the defendant to put the knife away, to drop the knife when he threw it on the grass area beside the footpath. The defendant then walked away from the knife saying 'fuck this'. Police then had a conversation with him. > > Police asked why he was carrying a knife to which he stated 'you can have a gun my nigger, you can have a gun, what the fuck'. Police informed the defendant that he can't walk around carrying a knife. Police told the defendant that it was dangerous when he replied, 'my nigger it was a cooking knife brah'. [32]

20. On 26 December 2023, NYQK unlawfully entered a dwelling and stole a bottle of champagne. This incident was reported in the Court Brief in the following terms:

At 10:40am on 26th December 2023 police from Inala Tactical Crime Squad attended in relation to a breakers on premises job. The address is a brand new build and residents have just received their keys to move in. > > The victim advised that she had attended the address as she was preparing to move in to her brand new home, as she entered she observed the defendant in the upstairs bedroom walking out of the bathroom. The victim left the address and told the defendant she was going to call police. > > Upon arrival, the victim stated that the defendant had not left the dwelling. Police entered the dwelling and located the defendant on the top floor exiting the bathroom. He was placed under arrest. He was then provided his rights and cautions as per PPRA safeguards. > > The defendant stated that he used to live at the address before it was built, he stated he had a key and entered that way. The defendant further stated that it was his house and that didn't have to pay for it. The defendant was displaying some delusional thoughts about how he came to be inside the dwelling. Once inside the defendant drank the welcoming champagne that belonged to the victim. > > There was no signs of forced entry. > > The victim did not give the defendant any permission to be inside her dwelling. > > ... > > The defendant's belongings were in the dwelling and as part of packing up his belongings to go with him to the watch house a small clip seal bag of cannabis and a bong were located. [33]

21. NYQK entered into a bail undertaking under which he was not to go to a specific address. On 30 December 2023, he was photographed in the driveway of that address, in breach of his bail undertaking. [34] Under the conditions of the bail undertaking, NYQK was required to live at a particular address. On 11 January 2024, police located NYQK at a different address. On this point, the Court Brief states:

[NYQK] was located in a boarded up Department of Housing unit... The unit was previously rented by the defendants mother. There is currently a DVO naming the defendant as Resp with conditions not to attend that address, however the Agg (def mother) in that matter is in palliative care and not expected to return to the address.[35]

22. He was charged with breach of bail condition, enter with intent and serious assault police officer.
23. The nature and seriousness of NYQK's assault of the police officer can be readily understood on the basis of the Court Brief, which states:

Department of housing have advised Police that [redacted] is the only person authorized to live at the address and the defendant [NYQK] is not allowed at the address. The defendant had been given a move on direction by Police on the 25/12/2023 and advised not to return as he would be trespassing. On today's date, 11/01/2024 they had a carpenter secure plywood over all the windows and doors to the unit as they had received reports the defendant had illegally been squatting at the address again. > > At 2:50pm Police arrived at and cleared the backyard and then they observed the plywood timber shutter covering a side window had been tampered with. Police approached the window and noted the loosened plywood had been removed and was leaning against the outside of the window. Police removed the loosened plywood and opened the window. The defendant was inside the room and has then stepped up to the window from inside the dwelling. Police had a conversation with the defendant through the open window, telling the defendant multiple times to exit the dwelling through the open window. The defendant replied in an aggressive abusive manner to police instruction. Police at this stage could only see the defendants left hand as the window curtains were concealing his right hand. Police announced they could not see the defendant's right hand when the defendant has then transferred a knife from his right hand to his left hand and held it up at the open window toward police, moving the knife back and forth, again threatening the police with "Yeah bro. Yeah bro. I'm covered in, you think I put this shit on my door, nigga? You think I put this shit on my door, nigga? See that's, that's why I'm calling you a nigga. You think I'm dumb? 'cause I'm speaking like this?" "Your daughter. Fuck your wife nigger. Fuck you. Fuck other you guys. Come always check me like I'm, I'm, I'm like some celebrity. I'm not. I'm not a fucking celebrity. Go away. Come a white bitch was just here talking shit." > > [The officer] then drew his police issued firearm and provided the defendant with instruction to drop the knife. The defendant continued to yell at Police and disappeared behind the curtain. Police were able to pull open the curtain and observe the knife on the floor before entering the unit and arresting the defendant.[36]

24. Also on 11 January 2024, NYQK was charged with wilful damage of a motor vehicle. Police allege while walking along a road, NYQK slapped the right-side driver's mirror causing the mirror housing to break away from the vehicle and the mirror to crack.[37]
25. On 3 April 2024, NYQK was convicted of breach of bail condition, wilful damage, possession of a knife in a public place, enter dwelling and commit, and serious assault police officer whilst pretending/ is armed with a weapon. He was sentenced to concurrent terms of imprisonment (two 12-month terms of imprisonment and two 2-month terms of imprisonment) and was released on parole having served 83 days.[38]
26. On 19 July 2024, NYQK was convicted of offences he committed in October and December 2023:

(a) on 24 October 2023, NYQK was found trespassing in a property and in possession of cannabis and related paraphernalia; > > (b) on 31 October 2023, NYQK was found sleeping in a parked motor vehicle he had broken into by smashing a small glass panel; > > (c) on 11 December 2023, he failed to appear at the Ipswich Magistrates Court in compliance with a bail undertaking; > > (d) on 26 December 2023, NYQK was found trespassing in a newly build house by the female owner and attending police recorded he was in possession of 2 grams of cannabis and a homemade bong, and he was displaying some delusional thoughts about how he came to be inside the dwelling;[39] > > (e) on 2 May 2024, NYQK failed to appear in compliance with a bail undertaking; and > > (f) on 4 June 2024, NYQK committed a trespass offence.

27. He was sentenced to three 1-month and three 8-month concurrent terms of imprisonment, to be suspended after service of 2 months.[40]

1. The issues to be decided in the review arise under s 501CA(4) of the Act:

(4) The Minister may revoke the original decision if: > > (a) the person makes representations in accordance with the invitation; and > > (b) the Minister is satisfied: > > (i) that the person passes the character test (as defined by section 501); or > > (ii) that there is another reason why the original decision should be revoked.

2. There is no dispute that paragraph 501CA(4)(a) is met. As NYQK made representations in accordance with the invitation to do so, this is correct.
3. For the purposes of s 501CA(4)(b)(i) of the Act, NYQK concedes he does not pass the 'character test' defined in s 501(6) and (7) as he was sentenced to a 12-month term of imprisonment.
4. The key issue to be decided is whether there is 'another reason' for the purposes of s 501CA(4)(b)(ii) of the Act to revoke the decision to cancel NYQK's Visa.

1. The Tribunal must apply directions issued by the Minister under s 499(1), namely 'Direction No. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA' (Direction).
2. Even though s 499(2A) states the Direction must be complied with, the Direction does not direct the outcome in the specific circumstances of any case, and it does not limit the matters of relevance the Tribunal is able to consider.
3. The Preamble to the Direction sets out a framework of objectives and principles within which decision-makers should approach the task of deciding whether to revoke mandatory cancellation of a person's visa under s 501CA.
4. The Principles in s 5.2 of the Direction are in the following terms:
   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 non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
5. Factors which must be considered (where they are relevant) are set out in Part 2 of the Direction. The following instructions are given:

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.

6. 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.

7. 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):

(a) legal consequences of the decision;

(b) extent of impediments if removed;

(c) impact on Australian business interest

1. As can be seen, protection of the Australian community is a primary consideration which is generally to be given greater weight than other primary considerations.
2. The principle that the safety of the Australian community is the highest priority of the Australian Government is reiterated in s 8.1(1) of the Direction, which states the Government is committed to protecting the community from harm resulting from criminal conduct or other serious conduct by non-citizens. Particular regard is to be had to the principle that remaining in Australia is a privilege conferred on non-citizens in the expectation they are law abiding, will respect important institutions and do not cause or threaten harm to individuals or the Australian community.
3. Section 8.1(2) directs that decision-makers should also consider the nature and seriousness of the non-citizen's conduct and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

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

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

2. The term 'serious conduct' is given an expansive meaning in s 4(2) of the Direction. It includes intimidatory behaviour or behaviour which represents a danger to the Australian community.
3. The statement of the Government's views about the seriousness of crimes or conduct within the terms of s 8.1.1(1)(a) and (b) are indicative and not exclusive. Clearly enough, the seriousness of a non-citizen's specific crimes or conduct is a relative measure within a spectrum of seriousness about which views may differ. The measure of seriousness is informed by the considerations set out in s 8.1(1), including the Government's views in respect of the crimes and conduct referred to in s 8.1(1)(a) and (b). Determining where any particular crime or conduct of a non-citizen is located on the spectrum of seriousness is a matter for objective, impartial judgment in the particular circumstances. When making that determination, the Tribunal is not bound by the expressed views of the Australian government, although it must consider these and the other factors in s 8.1.1 when assessing for itself the nature and seriousness of the non-citizen's offending and the impact of this on the protection of the Australian community from criminal or other serious conduct by the non-citizen.[41]
4. NYQK's criminal and offending conduct includes failing to comply with directions and orders, crimes involving domestic violence against his mother and J, assaulting a police officer, breaking and entering, property damage, possession of drug paraphernalia and traffic offences over a 10-year period from 2014 to 2024.
5. The nature of some of NYQK's offending conduct has been serious enough for him to be sentenced to terms of imprisonment, including his serious assault of a police officer. The three concurrent 12-month terms of imprisonment NYQK was given on 3 April 2024, and the time he served before being released on parole, are indicative of the relative seriousness of the offences he committed.
6. The nature and seriousness of his offending can readily be understood in the Court Briefs and police reports of each incident.
7. There is no real evidence of the impact of his offending on victims, although I accept victims might have experienced fear and costs would have been incurred by victims of his property damage. NYQK accepts he caused property damage, punching walls and throwing objects through glass windows at his mother's house, and breaking into a vehicle and unoccupied premises. In all likelihood, his mother and J experienced fear during the family violence offences on 27 February 2020 and 19 March 2020, and when NYQK breached the DVO in June 2020 and June 2023. It is likely CM might have been impacted when he was knocked to the ground and punched by NYQK when he intervened a fight between CM and J on 29 June 2020.
8. The cumulative effect of NYQK's offending is demonstrated by the serial and cumulative cost of policing and administering justice in his case.
9. The Minister asserts there is a trend of increasing seriousness in NYQK's offending. NYQK engaged in family violence in February, March and June 2020 and in June 2023. In December 2023 and January 2024, he engaged in conduct while carrying a knife: walking on a public street, and in his serious assault of a police officer.
10. The pattern and frequency of NYQK's offending from 2020 coincides with periods when his mental health was not under treatment and, by his own admission, he was frequently using cannabis and had a massive problem with smoking weed.[42] The concern expressed by his mother and stepfather about NYQK's mental health as he seems to become angry and aggressive easily[43] is a clear indication by people who were in a position to know of NYQK's mental condition in March 2020, albeit not then diagnosed. NYQK denies experiencing symptoms of his mental illness until after he was incarcerated.[44] NYQK exhibited similar angry and aggressive behaviour in the offences he committed in breach of the DVO on 5 and 20 June 2020. His behaviour moderated under the mental health treatment order which was in place from the latter part of 2020 to 2022. Thereafter, NYQK ceased treatment and engaged in further use of cannabis. He became homeless and he committed further offences in which his behaviour was likely to have been affected by delusionary symptoms or other effects of his mental health condition or drug use.
11. While motivation or intent is a factor in consideration of the seriousness of a person's offending conduct for sentencing purposes, it is also a relevant factor to consider when assessing the seriousness of a non-citizen's conduct for present purposes. In this context, NYQK's mental health condition, drug use and homelessness are significant contextual factors. In all likelihood his homelessness was attributable, at least in part, to the effect of his mental health condition, which may well have been exacerbated by cannabis use, including unregulated, aggressive and delusionary behaviour, and his difficulty settling in quick with new people.[45] In all likelihood, NYQK was experiencing delusionary thinking on 26 December 2023, as noted by police, and on 11 January 2024. In this context, the terms of the DVO and his history of exposure to family violence as a child are also factors of significance. I accept NYQK broke into premises and a car in search of shelter when he was homeless.
12. NYQK's mental health was not raised as a mitigatory or exculpatory factor in sentencing. No claim or finding of mental incapacity has been made in these or previous criminal proceedings. Nevertheless, on the materials before the Tribunal, NYQK's mental condition is likely to have been a significant contextual element in the factual matrix underlying the offences for which he was convicted and sentenced in and after 2020. While the available materials do not establish a causal connection linking NYQK's symptoms of psychosis or schizophrenia and his offending conduct, his behaviour was likely to have been affected and his judgment impaired. The same can be said of NYQK's cannabis use as a material factor in his mental health and his offending conduct.
13. When the 'nature and seriousness' of NYQK's offending conduct is considered on the broad spectrum of criminal offences, from minor offences to the most heinous crimes of utmost seriousness, his conduct is not at the higher end of the spectrum. This notwithstanding, NYQK's family violence offences and his serious assault of a police officer are viewed very seriously for the purposes of s 8.1.1 of the Direction.

1. The principle in s 5.2(6) provides for 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. Regard must be had 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 and, in further expression of the principle in s 5.2(7), some conduct is so serious any risk it may be repeated is unacceptable. The matters set out in 8.1.2.(2) must be considered separately and 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).

(c) where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

1. These considerations arise for the purposes of assessing the risk of future harm and determining if the risk is unacceptable. Risk is chameleon-like and is affected by static and dynamic factors which should be considered:

It is well established that, where the harm which might be caused by future conduct is particularly serious, a lesser likelihood of the conduct occurring may be required for the risk to be identified at a level requiring a particular decision to be made. It is also well established that the likelihood of a person engaging in conduct in the future is affected by both static and dynamic factors: that is, factors which can be assessed objectively against statistical models to predict the risk category a person falls into, and dynamic factors personal to an individual which may moderate or exacerbate the risk the person otherwise could be said to pose. Those factors might include family support, alcohol and drug abuse patterns, employment and the like. [46]

2. The consideration of harm in this context is forward-looking, should NYQK engage in further serious conduct. The gravity of the consequences likely to stem from repetition of NYQK's serious conduct turns on objective evaluation of the particular circumstances of his offending conduct rather than generalisations about the character of or likely sentence for any such offence.[47]
3. The nature and gravity of harm to individuals or the Australian community should NYQK reoffend or engage in further serious conduct turns on the degree and effect of further family violence, any further assault on police, particularly if carrying a knife, and further break and enter into premises and property damage on victims. Even though there is only scant evidence NYQK caused physical harm to victims of his previous offending, the potential for physical harm to individuals should he engage in further similar conduct is obvious.
4. NYQK has engaged in abusive and violent conduct during the period of his incarceration and detention. This adds heft to the potential he might cause harm to individuals in future if the Visa cancellation decision is revoked and he returns to the Australian community. In addition to the risk of physical harm, individual victims of such conduct might experience fear and related psychological trauma. Repetition of NYQK's conduct illegally entering premises and damaging property would likely result in property damage and related harm to the occupiers or owners of such property.
5. At a broader community level, repetition of NYQK's serious conduct, including the commission of further unlawful activity in public or in respect of private property, would likely harm community safety and public order. This risk has a particularly sharp point should NYQK's future conduct involve knives or other weapons, and it extends to the risk of harm caused by driving offences on public roads. Further family violence would contravene legal standards and social norms which treat such conduct and behaviour with abhorrence. Further disobedience with and disregard for the rule of law will require the diversion of police and judicial resources at significant public cost.
6. NYQK was found to pose an elevated risk to others and he was given a high security classification by Queensland Corrective Services on the basis of the nature and seriousness of his violent offences.[48] A Risk of Re-Offending Assessment was undertaken on 28 August 2023. NYQK scored 11 out of 20 where 20 is the highest risk of re-offending.[49] On 11 June, 12 June and 29 June 2024, NYQK engaged in Offensive Behaviour while being held in immigration detention.[50] On 8 August 2024, NYQK was involved in a fight with another prisoner.[51]
7. The dynamic factors in NYQK's case, and the conditions under which his past offending occurred, include use of illicit psychoactive drugs and, in all likelihood, behavioural disturbance attributable to his mental health condition.
8. NYQK alleges he has gained insight into his previous use of cannabis and is presently abstinent. He denies use of other drugs and he contests hospital records suggesting he admitted to using everything except cocaine and injecting himself and he commenced methamphetamine and cannabis use age 24 following a relationship break up.[52]
9. At the time of hearing this application, NYQK has completed scheduled Paliperidone treatments for his schizophrenic illness under a mental health treatment order which commenced in January 2025.[53] The treatment order has expired. His next Paliperidone injection is due on 4 December 2025.
10. NYQK gave evidence his treating doctors have advised he does not require further treatment. He explained he does not like the medication as it causes him to feel lazy and sluggish, and to put on weight. While he accepts the diagnosis of schizophrenia, by his own account, he does not recall experiencing any previous episode of psychosis or schizophrenic illness. Voices which were said to be illusory[54] he considers were actual voices of people he heard in close proximity, speaking Kurundi. Medical records note NYQK assaulted prisoners he thought were making fun of him and he experienced delusions: he thought his mother was a witch.[55] When questioned about symptoms of this illness by the Tribunal, NYQZ was unable to describe symptoms associated with schizophrenic episodes in the past.
11. Considering his evidence and the evidence of the Mental Health Review Tribunal, I am satisfied NYQK has little insight into his mental illness and he is unlikely to recognise symptoms which might be associated with relapse of his condition. It is also likely, as NYQK explained, he will not obtain treatment unless it is prescribed by treating doctors or required under a treatment order. There is a risk NYQK will not obtain the Paliperidone treatment scheduled on 4 December 2025. This increases the likelihood of relapse. So much is reinforced by the report of Dr Anne Stark, a psychiatrist with the Mental Health Review Tribunal, on 10 February 2025:

[NYQK] does not believe he has an illness which requires treatment. Currently, his symptoms are in remission, however he does not attribute this to the commencement of medication and is accepting treatment only because he understands he is required to continue this under the MHA. Without treatment, [NYQK] is at high risk of relapse, with substantial risks associated. When the TA was revoked in 2022, [NYQK] ceased treatment and his psychotic illness relapsed.[56]

12. I am satisfied the risk of harm is accentuated by the likelihood NYQK might experience behavioural dysregulation should he experience further episodes of psychosis and mental illness. The likelihood of such an eventuality is increased should NYQK fail to adhere to or obtain medical treatment for his schizophrenia and abstain from further use of illicit drugs, including cannabis.
13. The likelihood of this occurring is mitigated somewhat by the evidence given by NYQK's aunt, 'MK', and a long-term family friend, 'BN'. BN gave evidence NYQK would reside with her should he be released from immigration detention into the Australian community. BN demonstrated a sceptical approach to NYQK's assertion he is not mentally ill and gave evidence she would encourage and assist NYQK to continue with medication to manage his schizophrenia. Similar supportive evidence was given by MK.
14. On 14 August 2025, NYQK completed an Understanding Addictions course.[57] He has commenced counselling with Anne Perry, an Advanced Practitioner with the Queensland Program of Assistance to Survivors of Torture and Trauma.[58] As I understand this, NYQK has undergone two counselling sessions since commencing in October 2025, and he has been offered regular counselling sessions while he remains in immigration detention and if he is released into the Australian community.
15. Homelessness is also a significant dynamic factor. To the extent this factor was attributable to the DVO and incidents of family violence involving NYQK's mother and J or CM, two matters of significance must be noted. NYQK's mother died recently and the DVO expired on 25 March 2025. The circumstances in which his previous family violence conduct occurred no longer exist. NYQK has been offered stable accommodation and support by BN and MK. These offers are supplemented by the possibility of support through the Hart4000 service, should he undergo an intake assessment.[59]
16. Considering these matters, it is germane to recall what the plurality said in Minister for Immigration and Ethnic Affairs v Guo:[60]

The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.[61]

17. Presently, the past pattern of NYQK's offending conduct has been broken by his incarceration and removal from the community. The severance of his past pattern of offending is reinforced by several important factors. The DVO for the protection of his mother and J expired on 25 March 2025 and his mother died in September 2025. He has offers of stable accommodation from BN and MK, with a back-up plan involving the Communify HART4000 service. His schizophrenia is presently managed under treatment, and he is engaging in counselling which is expected to continue. By his own account he is not presently using cannabis and he has completed an Understanding Addictions course. Additionally, to the extent unemployment was a contextual factor in NYQK's past offending conduct, he has plans to re-engage with employment agency services he used in the past to obtain employment.
18. There is no certainty NYQK will adhere to and follow through with these positive changes in the future, should he be released into the Australian community. If he does not, there is a high risk he will relapse into florid mental illness. Should his behaviour become dysregulated again, the risk he will engage in further serious conduct and cause harm increases. The risk is increased further should he resume use of cannabis. To some degree the support offered to him by BN and MK, and the possibility of support through the Communify service, might have a protective effect against these risks. The prospect of deportation should he engage in further serious criminal conduct could be expected to have a protective effect to some degree.
19. On balance, the offers of stable accommodation and support by BN and MK, and the changed circumstances NYQK will face should he be released from immigration detention into the Australian community, mitigate the risk he might engage in further serious conduct and cause harm to individuals or the Australian community. The degree of mitigation is not great, however, in the context of NYQK's limited rehabilitation efforts and his lack of clear insight into his mental illness. I am satisfied there is a moderate to high risk he might engage in further serious conduct and cause harm to individual or the Australian community.
20. Considering the nature and seriousness of NYQK's offending conduct and the level of risk in the circumstances, the primary protection consideration weighs against revoking the decision to cancel NYQK's Visa.

1. The family violence consideration is discussed in s 8.2 of the Direction. This expresses the Government's concern about allowing a non-citizen who engages in family violence to remain in Australia in proportion to the seriousness of the family violence engaged in. It states:

(3) In considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant: > > a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness; > > b) the cumulative effect of repeated acts of family violence; > > c) rehabilitation achieved at time of decision since the person's last known act of family violence, including: > > i. the extent to which the person accepts responsibility for their family violence related conduct; Page 8 of 24 > > 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.

2. The term 'family violence' is given meaning in s 4.1(1) of the Direction. The inclusive elements of the definition engaged in this case include NYQK's verbal and physical behaviour involving violence or the threat of violence and deliberate damage to property.
3. The family violence NYQK engaged in commenced in February 2020. It was repeated in March 2020. The 5-year DVO which was issued on 3 April 2020 was for the protection of his mother and J. It was this order NYQK breached on 3 occasions in June 2020 and once again in June 2023. It is not necessary to repeat the particular circumstances of each occurrence.
4. I am satisfied there is no trend of increasing seriousness in NYQK's past family violence conduct. His family violence conduct was most intense in 2020. Notably, his conduct involved verbal conflict associated with physical violence in which he punched and damaged walls and windows in his mother's residence. The evidence does not establish he caused physical harm to his mother or to J, although they were likely to have experienced fear of harm.
5. NYQK's family violence conduct occurred on a background of exposure to family violence as a child and at times when he was unemployed and not obtaining treatment for his mental health condition. It is likely to have commenced in circumstances where interpersonal issues had arisen between NYQK and J and NYQK had a massive problem with smoking weed.[62] On NYQK's account, J paid the rent but did not want NYQK in the house and he was not allowed to bring his girlfriend home. There is no direct evidence from J. NYQK alleges his family violence conduct commenced in the context of him breaking up with his girlfriend.
6. Thereafter, NYQK's repeated breaching of the DVO is complicated by the relationship he had with his mother, from whom there is no direct evidence. On NYQK's account, his mother repeatedly forgave him and wanted him to return to her residence and to care for her when she became unwell, including when she was hospitalised and in palliative care, contrary to the DVO. This evidence is supported by the evidence of BN and MK.
7. I do not accept NYQK threatened his mother with a knife in June 2023. That assertion stems from a Court Brief which states:

At about 8:55pm on the 18th of June 2023 police received an urgent call for service to attend the aggrieved's residence of [redacted] in relation to domestic violence incident reported by a visitor and former resident of the unit complex. The informant believed a male at the address was threatening his mother with a knife during a heated verbal argument.[63]

8. NYQK staunchly denies this. I accept his evidence on this point which is not otherwise proved.
9. Other than counselling with Ms Perry, NYQK has not undertaken rehabilitative treatment or courses addressing his previous family violence conduct. He has given evidence of the deep regret and remorse he experiences, which is accentuated by his mother's death and his perception of her very great disappointment in him, which he bears without the possibility of redemption. He now accepts his mother and J experienced fear during his family violence conduct, although it is likely he did not recognise this at the time.
10. The record of NYQK's conduct while incarcerated and in detention suggests he is prone to aggression and anger, particularly when he is not taking medication for his schizophrenia. This raises the level of concern he might engage in further family or domestic violence.
11. Considering these matters, while NYQK's family violence is viewed very seriously and his conduct is abhorrent, it is not of the most serious kind of such conduct. The level of concern is proportional to the seriousness of the conduct, and this informs the weight which should be given to this primary consideration.
12. I am satisfied this consideration weighs against revocation of the decision to cancel NYQK's Visa.

Strength, nature and duration of ties to Australia

1. The strength, nature and duration of NYQK's ties to Australia must be considered under s s 8.3 of the Direction:

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

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

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

   3. 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. Before addressing these matters, it is necessary to note some difficulties stemming from the scant evidence NYQK has given in respect of members of his immediate and extended family in Australia. The first and obvious difficulty is identifying members of his immediate and extended family and making factual findings about NYQK's familial relationships with such people. There is very little evidence of NYQK's immediate family members in Australia and their migration status or Australian citizenship. Without relevant evidence, it is not possible to reasonably assess any impact the decision might have on members of NYQK's immediate family members who have a right to permanently reside in Australia.
2. To assist understanding, helpfully, counsel for NYQK produced a diagrammatic aide memoire: a 'family tree' of NYQK's family members. This document was not tended or taken into evidence. It raises more questions than it answers: it is incomplete, and its contents have not been tested.
3. Even though NYQK identified only his mother in the personal circumstances form he provided the Minister's Department,[64] it is probable he has a large extended family in Australia. In answer to Tribunal questions about this, NYQK referred to his biological father being one of four siblings, "three branches plus him". As I comprehend his evidence, his biological mother's family also has three 'branches'. This is very unclear. On MK's evidence, NYQK's biological mother was her sister as they had a common father but different mothers. This is not consistent with the aide memoire, which shows MK as a sister of NYQK's biological father. On the information provided at hearing, NYQK identified 54 family members.
4. It is difficult to know what to make of all this.
5. NYQK's biological mother resided in Australia from 2009. As I understand the evidence, she resided with CM until in or about 2011 and at some time later she re-partnered with J. This occurred while NYQK was residing with his mother. Consequently, CM and J, and any biological children they might have, could be members of NYQK's immediate family. There is no direct evidence from these people. NYQK's mother died in September 2025. I understand that CM is deceased. There is no direct evidence from J.
6. On the available materials, it is not possible to reasonably assess any impact of the decision on J. I am unable to make findings about the existence or the state of any present or ongoing familial relationship between NYQK and J, if any at all. Considering the nature of the relationship between NYQK and J in the past, if there is a persisting family relationship between them, any impact of the decision is likely to be adverse as the non-revocation of the decision to cancel NYQK's Visa will result in his removal from Australia, ending the possibility of any physical contact between J and NYQK in Australia. I am unable to make any positive finding on such speculative bases, without relevant evidence. The paucity of relevant evidence significantly diminishes any weight that can be given.
7. NYQK's biological father resides in Australia with his wife (NYQK's stepmother), 'DM', and their children (NYQK's stepsiblings). On NYQK's evidence his father and stepmother have 12 children. There is uncontested evidence from a child, 'IN', who describes NYQK as his older brother.[65] There is also uncontested evidence from another person, 'CN' who describes himself as NYQK's younger brother.[66] Doing the best with NYQK's evidence, it is probable IN and CN are children of NYQK's biological father and DM. On NYQK's evidence he maintains a close relationship with his stepbrother 'LM', another child of his biological father and DM.
8. It is probable there have been difficulties in the relationship between NYQK and his biological father. It is not clear NYQK considers DM as his stepmother. NYQK attempted to reside with the family in or about 2022 to 2023, but this did not go well, and his father asked him to leave. This notwithstanding, it is likely the relationships between NYQK and his biological father, DM and his stepsiblings are ongoing. The relevant evidence does not establish that the relationships have broken down completely or irretrievably. The uncontested evidence of CN and IN points to a contrary conclusion and suggests there is an ongoing and loving familial relationship.
9. Proceeding on that basis, the decision is likely to have an adverse impact on these members of NYQK's immediate family to the extent that any future physical contact with NYQK would be curtailed should he be removed from Australia, and any future relationship with him would be conducted remotely or offshore. CN states this would be devastating for me and our family.[67] IN states It would affect me greatly if [NYQK] were to be deported because that could be the last time we have a chance of meeting again.[68]
10. In some regards this is not substantially different than the present state of affairs since NYQK was taken into custody. There is simply insufficient evidence to support positive findings in respect of the nature or extent of any contact between NYQK and these members of his immediate family during the period of his incarceration and immigration detention.
11. Even though the relevant evidence is only scant, I am satisfied the decision is likely to have an adverse impact of NYQK's immediate family members, at least to the extent that their familial relationships would be curtailed by physical distance should NYQK be removed from Australia. In those circumstances, any difficulty NYQK might experience accessing or communicating using internet or mobile technology services in Burundi is likely to increase the impact on his immediate family members in Australia.
12. NYQK has spent most of his life in Australia, having first arrived in 2009 at the age of 13. He asserts, and I accept, he considers Australia is his home and it is the only country he knows, having left Burundi when he was 4 years old. While some of his formative years were spent in Burundi and refugee camps in Tanzania, he spent the latter part of his childhood in Australia. He grew up and attended high school in Australia. This is a very significant factor in this consideration.
13. NYQK first committed an offence in 2015: Contravene direction or requirement.[69] He subsequently committed 4 fare evasion offences in the period to 10 June 2017.[70] On 29 November 2019, he was put on a 6-month good behaviour bond for obstructing a police officer. No conviction was recorded. In February and March 2020, he engaged in family violence conduct which led to police seeking the DVO issued on 26 March 2020.[71] The first conviction recorded against NYQK was in respect of him breaching the DVO on 3 occasions in June 2020, 11 years after his first arrival in Australia.
14. From 2009 to 2020, NYQK participated in the Australian community as a school student and subsequently an adult in sporadic employment without committing serious offences. I understand he obtained qualifications in childcare and other vocations, and he worked in a number of jobs, none of which were of long duration. Despite his minor offences, I accept he made some positive contributions to the Australian community during this period of his life. Little additional weight can be given, however, as there is only scant and somewhat tenuous relevant evidence addressing this point.
15. I am satisfied NYQK has broad and strong ties to Australia through the members of his extended family. This is supported by the evidence of MK and BN. On the information provided at hearing, it is likely NYQK's family comprises at least 54 people who are residing in Australia.
16. There is scant evidence of the strength of NYQK's links with his extended family members. On MK's evidence I am satisfied NYQK has a strong relationship with her family, including her husband, 'P', and 6 children (5 of whom are adult) and their partners. NYQK resided with another aunt, 'NG', for an extended period in 2020 to 2022. As I understand the evidence, this aunt and her husband have 10 children, at least 5 of whom are adult. On NYQK's account, he ceased residing with NG's family in 2022 as he became unwell and had an allergic reaction to something in her house and departed.
17. The evidence given by BN, a close family friend of long-standing, confirms that she lived in close proximity to NYQK when he was a child and their families spent a lot of time together. The families moved to Australia from Tanzania around the same time, and they all resided in close proximity in Queensland. On her evidence NYQK knows my children well and they will also provide support and encouragement for him.[72] On BN's evidence, she and her family would be very badly affected if NYQK is removed from Australia to Burundi.
18. I am satisfied that NYQK has strong and enduring ties to Australia through his extensive family and social links. His ties are strengthened by the length of time he has spent in Australia, from childhood. This increases the weight given to this consideration.
19. The primary consideration of NYQK's ties to Australia weighs in favour of revoking the decision to cancel his Visa.

1. Section 8.4 of the Direction requires consideration of the best interests of each minor child affected by the decision and determination whether non-revocation under s 501CA of the Act is, or is not, in their best interests. Matters which must be considered are set out in s 8.4(4):

(4) In considering the best interests of the child, the following factors must be considered where relevant: > > 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.

2. Once again, there is only scant relevant evidence to go on.
3. NYQK identifies 4 stepsiblings and 7 cousins who are children under the age of 18 whose best interests are allegedly affected by the decision.[73] With the exception of IN, no details of each child have been provided.
4. The aide memoire diagram handed up during the hearing is of little assistance. In respect of NYQK's paternal stepsiblings, two are referred to as 'child', one is identified as 'teenager' and IN is said to be 16 years old. Of NYQK's cousins, 7 are identified as 'child' and 9 are identified as 'teenager'. This is not a sound basis on which to proceed.
5. The specific nature and duration of NYQK's relationships with each child whose interests are affected by the decision remain opaque.
6. Doing the best with the available materials, it can be accepted NYQK does not have a parental role with any of these children. Each of the children who are identified as minors have parents. With the exception of IN, their ages are unknown. It is probable NYQK had direct contact with some of the children when residing with his aunt NG in 2020 to 2022, and when residing with his father thereafter, in or about 2022 to 2023. NYQK's evidence is that he has maintained contact with some of the children during the period he has been incarcerated and held in immigration detention. Details of any such contact remain opaque. It is probable there have been lengthy periods of absence or without meaningful contact between each child and NYQK, particularly during periods in which he has been removed from the Australian community, and possibly when he was homeless and using cannabis. I am not satisfied NYQK has played or is likely to play a positive parenting role with any of the minor children.
7. As the relevant evidence is not sufficient to assess the closeness of NYQK's relationship and contact with each of the allegedly affected minor children, assessing the likely effect of the decision on each child is difficult. NYQK has been in custody or detention from June 2024. He has been incarcerated previously in 2020 and 2023. During these periods, the mode and frequency of any contact he had with each of the minor children is not established. There is no evidence any of the minor children visited NYQK in prison or in detention. Contact, if any at all, would have occurred remotely, by use of the telephone, electronic media or, conceivably, social media. With one reservation, any such contact could be expected to continue should NYQK be removed from Australia if the decision to cancel his Visa is not revoked. The reservation is the extent to which he might be capable of accessing and communicating with each child using internet or other electronic media from Burundi. These are no more than possibilities as there is insufficient relevant evidence to support any such findings or positive conclusions.
8. In the event NYQK is released from immigration detention, it is proposed he would reside with BN. BN has a minor grandchild residing in her house with her son and his wife. There is simply insufficient evidence to determine if or to what extent the interests of this minor child are affected by the decision.
9. Similarly, speculation about the impact of NYQK's prior or possible future conduct is not helpful. The most that can be said is that NYQK's serious conduct, including domestic violence, trespassing, careless driving or behavioural dysregulation when he was affected by drugs or psychotic symptoms, might have had an adverse impact on any child exposed to it in the past or prospectively should it recur.
10. The only minor child whose views are known is IN, who is 16 years old. IN states It would affect me greatly if [NYQK] were to be deported.[74] I accept non-revocation would likely have a negative impact on IN.
11. There is no evidence any of the children were exposed to NYQK's family violence or that he has abused or neglected them in any way. There is also no evidence that any of the children experienced physical or emotional trauma arising from his conduct.
12. Considering these matters, it is probable that NYQK's four minor paternal stepsiblings, particularly IN, and in all likelihood at least 7 cousins who are minor children, would be affected by the decision. Non-revocation will mean these children are not able to engage in physical contact with NYQK in Australia. The extent and nature of their previous physical or other engagement with NYQK is not known, although on the evidence of NYQK, MK and BN there are strong familial and cultural community relationships to consider. Accepting this is correct, non-revocation is likely not in their best interests within the family and socio-cultural community context of their lives.
13. Thus, even despite the paucity of relevant materials, I am satisfied non-revocation of the decision to cancel NYQK's Visa under s 501CA(4) of the Act is not in the best interests of these minor children. This primary consideration weighs in favour of revoking the decision to cancel NYQK's Visa but the weight that can be given is reduced by the sparsity of relevant evidence.

1. Section 8.5 requires consideration of the expectations of the Australian community. The following guidance and directions are given:

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:

(a) acts of family violence; or > > (b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage; > > (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; > > (d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or > > (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 > > (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. Even though the Government's views articulating Australian community expectations as a whole must be considered, the 'norm' expressed in s 8.5(1) is not directive of the outcome in any case.[75] NYQK accepts this consideration is generally adverse to any non-citizen who has breached the expectation they will be law-abiding while in Australia. That may be so, but the relevant facts must be considered when evaluating the concern arising from the adverse character assessment and the weight it should be given.[76]
2. NYQK asserts that the particular facts of his case should be considered when weighing the expectations of the Australian community, including childhood loss, trauma and sexual abuse in the harsh conditions of the refugee camp in Tanzania; his experiences as a teenager in Australia, defending his mother from domestic violence; and his schizophrenia diagnosis.
3. These are circumstances which might inform concerns about NYQK's character when determining the weight to be given to Australian community expectations and the 'norm' expressed by the Government. There is no authority to attempt to infer or to independently assess what the expectations of the Australian community might be in the particular case.[77] I do not accept that community expectations about the particular circumstances of any case are properly addressed as 'other considerations'. The issue for determination in the circumstances of any case is the weight to be given to Australian community expectations as expressed by the Government.
4. Two key concerns about NYQK's character arise from the facts of his case. The first relates to his violent conduct, including wielding a knife against police and carrying a knife in public. His acts of family violence and the anger and aggressive behaviour he engaged in, despite evident fear and risk of harm to his mother and J, sharpens the concern. The second relates to his dysregulated or careless conduct, breaking into private premises, damaging property, and disobeying directions, legal undertakings and traffic rules. Each of these concerns demonstrates NYQK's disrespect for the personal property and safety of others, his disregard for Australian law and police, and his failure to take responsibility for and manage his own conduct and behaviour. The background facts NYQK points to in respect of his difficult childhood experiences might contextualise or even go some way to explain his behaviour, but these do not moderate the concerns about his character arising from his criminal offending conduct.
5. While the character concerns are attributable, in part, to conduct of the particular kinds specified in s 8.5(2)(a), (c) and (d) of the Direction, the interwoven threads of concern are bound up with NYQK's schizophrenia, his lack of insight into his illness and his use of cannabis. I have already considered the dynamic nature of these factors when assessing the risk NYQK poses to the Australian community under the protection consideration. For present purposes, it is the seriousness of the character concern which is germane to the attribution of weight, not the risk of harm.[78] The dynamic or modifiable nature of these factors is relevant to the character concern. NYQK's mental illness is amenable to treatment, and when under treatment he has not engaged in further serious conduct of concern. NYQK's lack of insight into his mental illness and his use of cannabis might be addressed by further rehabilitation and education. These considerations contextualise and potentially moderate the seriousness of concerns about his character. Nonetheless, so long as NYQK demonstrates little insight into his mental illness and he fails to manage his conduct and behaviour the potential to moderate concerns about his character is unlikely to be realised.
6. Presently, the seriousness of concerns about NYQK's character is not moderated by these considerations. The risk he might engage in further serious conduct adds weight to the character concern. He has breached the expectation of obedience with Australian laws. Nevertheless, as he has lived in the Australian community from a young age, for most of his life, the tolerance which might be afforded in respect of his criminal conduct is increased.
7. I am satisfied the primary consideration of Australian community expectations weighs against revocation of the decision to cancel NYQK's Visa.

1. Section 9 of the Direction requires other considerations to be taken into account where relevant. These include:

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

2. 'Other considerations' are generally to be given less weight than 'primary considerations'.

1. The conception of 'legal consequences of the decision' in any particular case requires consideration in human terms[79] of the practical reality for the person of the legal consequences of the decision within the legal framework prescribed by the Parliament.
2. Section 9.1 is relevant:

(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.

(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.

1. Broadly, the legal consequences of non-revocation of the decision to cancel NYQK's Visa stem from operation of s 189, 197C and s 198 of the Act. As NYQK is an unlawful non-citizen in Australia, should the decision to cancel his Visa not be revoked, he will be held in immigration detention pending removal from Australia under s 198 of the Act as soon as reasonably practicable. By operation of s 197C(1), this is irrespective whether Australia has non-refoulement obligations in respect of NYQK. There is no evidence of the likely duration he will be held in immigration detention before removal. Once he is removed from Australia, it is highly unlikely NYQK would be allowed to return. For that to occur, he would need to satisfy the Special Return Criteria in s 5001(c) of Schedule 5 to the Migration Regulations 1994 (Cth).
2. Even though these are the effective legal consequences of policy, the practical effect in human terms turns on the particular circumstances of NYQK's case.
3. As NYQK was born in Burundi[80] and is of Abatwa ethnicity, it is likely he might be treated as a national or citizen of the Republic of Burundi. Even though NYQK alleges he has no Burundian identity documents, he specified Burundi as his citizenship at birth.[81] Burundi is recorded as the country of citizenship in the protection visa decision record.[82] There are no other documents before the Tribunal to prove his nationality. I will proceed as the parties have done on the assumption NYQK is a national of Burundi by birth. Adopting the approach taken in AZK15 v Minister for Immigration and Border Protection,[83] such an inference may be drawn on the very scant available materials. Consequently, it is probable NYQK would be removed from Australia to Burundi should a non-revocation decision be made.
4. It is on this point, NYQK has raised protection and non-refoulement claims.
5. NYQK asserts forcibly returning him to Burundi would not be consistent with Australia's non-refoulement obligations. This assertion is made even though a delegate of the Minister decided to refuse his Protection Visa application on grounds NYQK is not a refugee for the purposes of s 5H(1) of the Act and he is not a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) of the Act.[84] NYQK contends the delegate did not consider his mental health circumstances as, without legal advice at the time, he did not consider these to be relevant and did not raise them for consideration. He now maintains this was an erroneous omission on his part as the protection visa determination was made without consideration of all relevant matters. NYQK accepts it might be possible to challenge the protection visa decision in the High Court despite the effluxion of time, or to seek Ministerial intervention. He asserts these possibilities do not authorise deferral of related refoulement considerations in these proceedings. NYQK alleges he has a well-founded fear of persecution (the refugee consideration) and there is a real risk he will suffer significant harm if he is returned to Burundi, the country from which he fled at the age of 4 (the protection consideration).
6. The Minister contends NYQK's claims in respect of the refugee consideration and the protection consideration were considered and comprehensively addressed by the delegate who refused NYQK's Protection Visa application. In the Minister's submission, the final determination and refusal of NYQK's Protection Visa application and the lack of a positive protection finding for the purposes of s 197C(3) of the Act conclusively address NYQK's protection and non-refoulement claims under Australian domestic law. The Minister observes, as no application for review of the protection visa refusal decision was made and the time for doing so has now elapsed, the decision stands, subject only to High Court appeal should an extension be granted. Otherwise, the Minister argues, NYQK could attempt to call upon the Minister's power to intervene, but no such request has been made.
7. Aside from such technicalities, the Minister asserts NYQK's additional claims of mental health circumstances not previously raised or considered in the context of his Protection Visa application are unpersuasive. The Minister argues the extensive country information NYQK relies on was only given to the Minister 2 days before the hearing, leaving insufficient time for additional relevant materials, including further country information, to be adduced. Some of the country information NYQK relies upon is dated and, so the argument goes, more recent information has been incorrectly summarised and it should be carefully read in context.
8. Lest there be any doubt, there is no express, implied or inherent claim NYQK is owed protection under the Convention Relating to the Status of Refugees, the International Covenant on Civil and Political Rights and the Convention Against Torture (collectively Conventions) on the basis of assessments made in the grant of Class XB subclass 200 refugee Visa he previously held. The basis on which the Visa was granted is not disclosed in the materials before the Tribunal. There are strong grounds to infer the Visa was granted to NYQK as a dependent of his mother and it is not safe to assume any separate determination was made of NYQK's status as a refugee with well-found claims of persecution or harm under the Conventions.
9. NYQK's representations have evolved substantially. In the first instance, he informed the Minister he had no concerns about returning to Burundi as there are members of his mother's family and a sister residing there.[85] Soon thereafter, he wrote to the Minister seeking removal to Burundi. He subsequently changed his mind and withdrew this request. Consequently, by operation of s 197C(9) of the Act, he is taken not to have made the request. I will proceed on that basis. Shortly thereafter, he lodged the Protection Visa application without obtaining legal advice or other assistance.[86] NYQK left blank many sections of the protection visa application form. He indicated that he was seeking protection from returning to Burundi, although when asked what he thought would happen to him if he returned to Burundi he answered nothing I haven't committed serious of charges.[87] He ticked 'No' in answer to the questions Did you experience harm in that country...? and Do you think you will be harmed or mistreated if you return to that country...?.[88] He ticked 'Yes' to the question Do you think the authorities of that country/those countries can and will protect you if you go back? and stated I would be normal its just I wanna stay here because I grew up here.[89]
10. In response to an invitation to provide additional information about his protection claims, NYQK lodged a submission. A summary of the contents of the submission is set out in the delegate's decision:

In response to the invitation to provide further information the applicant provided a submission to the department. The information of relevance to the applicant's claims for protection in this submission is summarised below: > > • Burundi is in a state of civil war; there is conflict between the applicant's tribe Abatwa' (Twa) (which he knows little about) and the tribes of Abahutu and Abatutsi. > > • This conflict would mean that the applicant would be vulnerable upon returning to Burundi. > > • The applicant's family is in Australia. > > • The applicant was 13 years old when he arrived in Australia and is now unfamiliar with the Burundian culture, its values and lifestyle. > > • The applicant was raised in a camp prior to arriving in Australia. > > • He has lived, schooled and bonded with Australia and its culture. > > • The applicant knows that Burundi is poor and underdeveloped, apart from this he knows very little about Burundi. > > • He is seeks pardon from the Department for the wrongdoings he has done whilst in Australia. > > • He would suffer mentally, spiritually and physically if he is returned to Burundi. > > • There is a high chance he would kidnapped and forced to join 'the Rebels' group. > > • He lodged this application on his own and English is his second language.[90]

11. The delegate considered, made findings about and determined NYQK's claims in respect of his personal circumstances, including his mental health,[91] and claims relating to returnees[92], political opinion and tribal conflict,[93] and inability to subsist.[94] In so doing the delegate considered relevant country information.
12. On the issue of NYQK's mental health, the delegate stated:

[NYQK] claims to fear mental and spiritual harm if he is returned to Burundi because of his experiences.11 He has not indicated that he would need to seek any specialist medical assistance or that he has any outstanding medical issues that need to be dealt with, nor has the applicant expressed a need for medical treatment. I further note that the applicant has not engaged with any professional medical services, although he would had this opportunity in the considerable time that has passed since he arrived in Australia. In addition, the applicant did not provide any persuasive information or support documentation related to him needing ongoing health or mental health care that is likely to be jeopardised by his return to Burundi. Therefore, I find that at the time of assessment, the applicant does not require any access to ongoing medical care, psychiatric or psychological services, or medication currently in Australia or on his return to Burundi.[95]

13. It is open to infer the delegate did not consider medical records of NYQK's mental illness and related treatment.
14. It is relevant to observe that on 10 February 2025, four months before lodging his Protection Visa application on 3 June 2025, NYQK was in immigration detention and he was undergoing psychiatric treatment. In a Mental Health Review Tribunal report, he was reported to have experienced cannabis induced psychosis in 2023 on a background of an acute schizophrenia like psychotic disorder from 2020 to 2022. On 29 January 2025, Dr Stark reported:
    • - [NYQK] does not currently have capacity to consent to treatment.
    • - He does not believe he has a mental illness or that he requires treatment [96]
15. On 3 February 2025, NYQK was assessed by Dr Edward Fearon who reported NYQK acknowledged hearing voices last week and added Olanzapine to his Paliperidone treatments, noting that NYQK Doesn't think he needs it but reluctantly accepting. [97]
16. The delegate decided to refuse NYQK's Protection Visa application. The delegate was not satisfied NYQK is a 'refugee' for the purposes of s 5H(1) of the Act to whom Australia owes protection under s 36(2)(a). The delegate was not satisfied there is a real risk NYQK will suffer significant harm as defined in s 36(2A) if he is returned to Burundi and found he is not a person to whom Australia owes protection under s 36(2)(aa) of the Act.
17. Presently, it is not for the Tribunal to review the protection decision or to do over again what the delegate did. In these proceedings, the Tribunal has no jurisdiction to review the delegate's decision or the findings made. Moreover, the Tribunal's review under s 501CA(4) is an exercise of broad discretionary power to revoke a decision to cancel a non-citizen's visa under s 501(3A) of the Act. In this context, while non-refoulement claims raised as 'another reason' to revoke a mandatory cancellation decision must be considered, such consideration is no substitute for the consideration and determination of claims for protection and related non-refoulement issues in the context of a protection visa application where the specific thresholds in s 36 must be met. The power to grant a visa under s 36 is specific and exercise of it is conditioned by satisfaction of the specified criteria. The power conferred by s 501CA(4) is discretionary and exercise of it is not tied to any specific visa type or class but is conditioned by satisfaction the non-citizen passes the 'character test' or there is 'another reason' to revoke the cancellation of the non-citizen's visa.[98]
18. Nevertheless, where a non-refoulement claim is advanced by a non-citizen in representations or is suggested by circumstances in the review of a decision under s 501CA(4), it should be considered for the purposes of s 9.1 of the Direction.[99] Four questions are to be addressed:

(a) whether Australia owes the person non‑refoulement obligations; > > (b) whether returning the person would breach those non‑refoulement obligations; > > (c) the consequences of such a breach for the person; and > > (d) the consequences for Australia for breaching its non‑refoulement obligations.[100]

19. There are some difficulties answering these questions in the unusual circumstances of NYQK's case.
20. Where a positive 'protection finding' in respect of a country is made within the terms of s 197C (4), (5), (6) or (7) of the Act, applying criteria set out in s 36 and related provisions of the Act, Australia's non-refoulement obligations are engaged under Australian domestic law. Such a finding is instrumental in disapplying the removal power in s 198 in respect of that country. No such positive protection finding was made in the determination of NYQK's Protection Visa application.
21. The protection decision has not been subject to review or appeal. I accept NYQK was notified of the decision to refuse his Protection Visa application 12 days after the death of his mother and the grief he experienced was a factor in him not lodging an application for review within the prescribed period. Consequently, subject only to further review or appeal (now out of time), the delegate's decision is a final determination of his Protection Visa application and his related protection and non-refoulement claims under Australian domestic law. The Minister's power under s 36 is to be distinguished from the Minister's discretionary power to grant a visa under s 195A of the Act. Thus far, no application for review or appeal has been lodged with the Tribunal or any court of competent jurisdiction and no request for Ministerial intervention has been made.
22. In making the protection visa decision, the delegate was required to consider the protection claims advanced by NYQK or which were suggested in the particular circumstances. I accept that is what the delegate did.
23. NYQK did not raise any mental health issue in the context of his Protection Visa application and related protection claims. This is an omission or an error NYQK now seeks to address in these proceedings such that his mental health issues can properly be considered and taken into account.
24. The raising of a significant new claim, not previously considered or evaluated by the delegate, might affect the reliability of the delegate's findings in respect of the other claims which were evaluated. Albeit trite, this has a particularly sharp point when the additional new claim involves mental illness and related issues which pervade or intrude upon previously considered protection claims. It is for this reason, NYQK asserts the delegate's findings should not be accepted. The Minister contends the Tribunal should accept but is not bound by the delegate's findings.
25. The extent to which the delegate's findings should be accepted requires evaluation of NYQK's representations in respect of his mental illness and other matters, and the protection and non-refoulement claims he now makes with the assistance of his legal representatives, some of which have been considered and addressed by the delegate. This is a matter of fact and degree. The purpose of the evaluation is to assess the weight which should be given to the legal consequences consideration when determining if there is another reason to revoke the decision to cancel his Visa. There is no utility in conjecture about the possibility the delegate would have made a different decision on the information and claims NYQK now relies upon in respect of his mental illness. The Tribunal has no power to apply the criteria in s 36 of the Act for present purposes.
26. The delegate's findings were made on 16 September 2025 and they have currency.
27. In consideration of the claims raised, NYQK's case is distinguished from that of Applicant S270/2019 v Minister for Immigration and Border Protection (Applicant S270).[101] In that case, non-refoulement was not squarely raised and it was not a mandatory relevant consideration under s 501CA(4). In Drame v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[102] Bell J discussed some difficulties reconciling the analysis in Applicant S270 with the analysis in Ali's case. Related questions of deferred consideration were resolved in Plaintiff M1's case where a non-citizen was able to apply for grant of a protection visa:

Where the cancelled visa is not a protection visa and a decision‑maker defers assessment of whether non‑refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Migration Act, it nevertheless may be necessary for the decision‑maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being "another reason" why the Cancellation Decision should be revoked.[103]

28. Deferment of consideration of NYQK's protection and non-refoulement claims is not an option as his Protection Visa application has been finally determined and, by operation of s 48A, it is not open for NYQK to apply for another protection visa unless the Minister exercises the discretionary power conferred by s 48B. The Minister has not done so. Consequently, the facts underlying his claims must be taken into account.
29. Evaluating NYQK's representations for the purposes of determining if there is another reason to revoke the decision to cancel his Visa involves some awkwardness. The s 36 decision is a final (negative) determination of Australia's protection obligations to NYQK and related non-refoulement obligations under international law as expressed in relevant provisions of the Act. The awkwardness arises in respect of the potential for factual findings to be made which are not consistent with the s 36 decision and the finding NYQK is not a person to whom Australia owes protection or who engages Australia's non-refoulement obligations. As I informed the parties during the hearing, it is not for the Tribunal to resolve the legal question which then might arise of the status of any such factual findings in the engagement of non-refoulement obligations for the purposes of s 198 of the Act.
30. The protection and non-refoulement claims NYQK raises in these proceedings include:

4. ... removing him to Burundi would be in breach of Australia's non-refoulement obligations, which were not fully assessed during the protection visa process for several reasons including that he was not represented and therefore did not properly put his case to the Department, he does not have a proper understanding of his mental illness and so did not raise this as a protection claim with the Department and that there are non-refoulement claims which were not adequately assessed by the Department. > > 5. In reviewing the non-refoulement obligations, the Tribunal is not confined to, or bound by the decision of the delegate who refuse to grant [NYQK] a protection visa. The Tribunal must separately consider and assess whether returning [NYQK] to Burundi would be a breach of Australia's non-refoulment obligations. The Tribunal should not, as the Respondent contends, adopt the delegate's decision in circumstances where the applicant was not represented and has raised claims in this Tribunal proceeding that were not previously assessed. > > 6. [NYQK] faces a real risk of serious harm on return to Burundi because he is a member of the following particular social groups: > > a. A person with Schizophrenia who requires ongoing medication to control his illness. > > b. A person of the Twa indigenous ethnic group. > > c. A returnee from a Western country. > > d. Risk of forced recruitment as a young man of fighting age.[104]

31. It is said these claims engage Australia's international non-refoulement obligations, including under the Conventions, and the expression of those obligations in Australian domestic law.
32. As I comprehend NYQK's claims in respect of schizophrenia should he be returned to Burundi, there are three limbs:

(a) well-founded fear of persecution by reason of his membership of a group, namely sufferers of mental illness involving psychosis; > > (b) risk he will suffer significant harm and he will be subjected to cruel, inhuman or degrading treatment, as a result of his mental illness; and > > (c) likelihood he will be unable to obtain medical treatment and other assistance he requires to stabilise and manage his mental illness.

33. NYQK relies on extensive materials setting out country information to which I have had regard.[105] Some of this material is of questionable currency as it relates to circumstances in Burundi more than 5 years ago, prior to significant changes in the government of Burundi and related relevant circumstances.[106] Even so, some of this material is indicative of the likely situation in Burundi presently. For example, the very low availability of psychiatrists in Burundi as reported by the World Health Organisation on 25 April 2019 (0.01 psychiatrists per 100,000 people) is likely to be an ongoing issue currently. Other more recent materials, such as the reports published by the World Health Organisation[107] and the Journal of Public Health in Africa,[108] have greater currency and provide a more reliable indication of circumstances and risks NYQK might face should he return to Burundi.
34. Overall, this body of material supports a finding that people with mental illnesses involving psychosis are likely to be marginalised, stigmatised and subject to discrimination which prevents them from participating in social, economic and political life. Psychiatric treatment for these conditions is expensive, and it is not widely available or accessible. There is some evidence, albeit from 2021, the International Organisation for Migration provides initial health and mental health and psychosocial support to refugees, including referrals to relevant services.[109] On more recent reports, commonly, mental illness is relegated to the realm of taboo and superstition and is considered as supernatural sufferings that can only be cured by spiritual interventions or by resorting to traditional medicines and rituals, [110] including exorcism, counselling and strings of holy stones tied around wrists and ankles.[111] There is evidence of some human rights abuses in traditional healing practices, such as maltreatment, including forced fasting, exorcisms, which include physical beatings (sometimes resulting in death) and chaining to contain agitated patients, and locking restriction of visitors in a dark room, restriction of food and incorporating herbal ingredients that are potentially toxic.[112] It is families who commonly refer sufferers of mental illness to traditional healing practitioners.
35. I am satisfied there is a real risk NYQK would face substantial or systematic discrimination, stigmatisation and poor treatment should he return to Burundi and experience further symptoms of his schizophrenic illness or psychotic episodes. In such circumstances, the risk he would suffer significant harm is real and raised on substantial grounds. His related fears of systematic discrimination or persecution are likely well-founded. I am satisfied the non-refoulement claim made on the basis of NYQK's mental health is likely to be made out.
36. This goes beyond the matters considered by the delegate when making the protection visa decision and determining that NYQK is not a person to whom Australia owes protection under the relevant provisions of the Act. That decision notwithstanding, in the circumstances I have discussed and on the findings made, it is likely Australia's international non-refoulement obligations would be engaged even though no positive 'protection finding' has been made within the terms set out in s 197C(4), (5), (6) and (7) of the Act. While the absence of such a finding means removal under s 198 is open, on the findings I have made removal may well breach Australia's international non-refoulement obligations. The consequences of doing so for NYQK are likely to be dire. The consequences for Australia, if any at all, are indeterminate, uncertain and opaque.
37. In addition, NYQK claims if he is forcibly returned to Burundi he will be at risk of forced recruitment into the Conseil national pour la défense de la démocratie-Forces de défense de la démocratie (CNDD-FDD) or its quasi-military youth militia, the Imbonerakure. This claim is drawn from concerns about his age and imputed anti-government political opinion which might be ascribed to him as a returnee. He fears he would be forced to engage in or be the victim of violent acts, including beatings, torture and killings, in which he would face a real risk of serious harm. This matter was touched on but not squarely addressed in the delegate's reasons. Nevertheless, on those reasons, it is clear enough the delegate considered the violence attributed to the Imbonerakure had not reduced following the change in leadership within the Burundian government in May 2020. So much is reinforced by the materials before the Tribunal. This notwithstanding, considering the relevant materials, I am not persuaded NYQK's fears of persecution on political grounds are made out. I am not satisfied there is a real risk he would be forcibly recruited into the Imbonerakure or the CNDD-FDD and he would suffer significant harm as a result.
38. Considering all these matters, the legal consequences of a non-revocation decision include the following options.
39. The first is that NYQK would be forcibly returned to Burundi on the basis that he does not engage Australia's non-refoulement obligations as his Protection Visa application was refused and no 'protection findings' were made for the purposes of s 197C(3) of the Act. This would be despite the findings I have made in respect of NYQK's mental health circumstances and the real risk of harm he would face on being returned to Burundi. It would likely breach Australia's international non-refoulement obligations, albeit authorised on the basis of the decision to refuse NYQK Protection Visa application and the absence of any 'protection finding'. In human terms, this would likely have dire consequences for NYQK.
40. These consequences would weigh heavily in favour of revocation.
41. The second possibility is that the NYQK is found to be owed non-refoulement obligations, on acceptance of the findings I have made or possibly following appeal against the protection visa decision in a court of competent jurisdiction. Should such a finding be made, it is unlikely NYQK would be refouled to Burundi. More probably, he would be held in immigration detention pending removal to a third country at some indeterminate future point, should a country be found that is willing to take him. In this scenario, the period of NYQK's detention would be uncertain, although, following NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs[113], in all likelihood, he would be granted a bridging visa which would allow him to be released into the Australian community with restrictions, pending removal. The period of such an arrangement is unknown and highly uncertain. Ultimately, should he be removed to a third country, albeit presently unknown, it can be expected he would face a period of adjustment adapting to the new country, albeit his mental illness is likely to reduce his capacity to do so.
42. These consequences would also weigh heavily in favour of revocation.
43. The third possibility is that the Minister exercises power under s 195A of the Act to grant NYQK a visa or under s 48B to enable him to make another application for a protection visa. These possibilities are presently remote. There is no compulsion on the Minister to exercise either discretionary power, and any such exercise is not an inevitable or even a likely consequence of the decision presently to be made. There is no cause for speculation about the likelihood of such an eventuality. If NYQK is granted another visa, the statutory requirement for his continuing immigration detention falls away. The possibility of this does not reduce the weight to be given to the legal consequences of a non-revocation decision.
44. I am satisfied the legal consequences of the decision weigh in favour of revocation.

1. Section 9.2 of the Direction requires consideration of any impediments NYQK would face should he be removed from Australia to Burundi:

(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account: > > a) the non-citizen's age and health; > > b) whether there are substantial language or cultural barriers; and > > c) any social, medical and/or economic support available to them in that country.

2. NYQK alleges he will face substantial and dire impediments should he be forcibly returned to Burundi.
3. In large part, the impediments he asserts overlap with the claims he has made for protection and in respect of non-refoulement.
4. The Minister contends if the Tribunal finds NYQK is owed non-refoulement then consideration of any impediments relating to removal to Burundi falls away. This is incorrect. Consideration of any such impediments is mandatory under s 9.2 of the Direction. Furthermore, while one might expect Australia would comply with its non-refoulement obligations under the Conventions, at least insofar as these have been included in Australian domestic law, such an expectation does not negate the obligation to consider any impediments NYQK may face if he is removed to his home country, although it might affect the weight given to such consideration.
5. NYQK is 29 years old. The adaptability one might ascribe to a person of his age is attenuated by his schizophrenic illness and his mental health condition. It is this which raises a significant impediment to his socio-economic reintegration if he is returned to Burundi. The weight of the relevant materials and country information suggests he is likely to struggle to obtain the psychiatric treatment he requires to manage his condition. The available medical evidence suggests there is a real risk his schizophrenic disorder will relapse or recur and he will experience further psychiatric symptoms and episodes of psychosis should he cease taking prescribed antipsychotic medications, Paliperidone and Olanzapine. Aside from NYQK's reluctance to take these medications, at least in part because he does not believe he requires them, it is probable there are very few psychiatrists in Burundi and, in consideration of the state of the health system in Burundi, even if these medications are available in that country, which is far from clear, it is likely NYQK would experience difficulty obtaining and administering the medications (the Paliperidone is administered by injection).
6. Further impediments can be expected to arise for NYQK if he relapses into psychosis in Burundi. He would then be at risk of discrimination, stigmatisation and poor treatment. This could reasonably be expected to have a significant adverse impact on his capacity to engage in economic and social life in Burundi. On the relevant country information in the materials to which I have been taken, in these circumstances he is likely to encounter difficulties finding employment, housing and earning a living in order to subsist.
7. Even though NYQK is fluent in the Kirundi language and his extended family members are from Burundi, it is likely he has little direct knowledge of Burundian culture and social mores as he left that country when he was 4 years old. It is possible he might obtain some assistance from an uncle and a sister who reside in Burundi, although he has minimal contact with his uncle and no contact with his sister. He has family members and close family friends in Australia who are familiar with Burundian culture, including his father, KD and BN. These people may well be capable of assisting his transition should he be returned to Burundi.
8. As a 'returnee' from a western country, NYQK is at risk of being targeted or harassed on grounds of perceived wealth or by the Imbonerakure, although the risk of the latter is raised in the context of ascribed political opinion or his age, neither of which are likely in NYQK's case. This notwithstanding, in 2021 the Office of the High Commissioner for Refugees reported:

43. There remain considerable barriers to the socioeconomic reintegration of returnees, as chronic poverty in the country makes for unstable reception conditions. Government pressure to step up the pace of returns has exceeded the absorption capacity of reception areas. An estimated 70 per cent of returnees are in serious humanitarian need and 23 per cent are in extreme humanitarian need. > > 44. Returnees face, inter alia, a lack of livelihoods, shelter and land and limited access to schools and health-care services, as well as security problems including land and intrafamily disputes that have gone unresolved due to justice system dysfunctions. They also experience harassment, persecution and discrimination on the part of local communities and others. Households headed by women are even more vulnerable and encounter specific difficulties. In 2021, 22 per cent of returnees believed that the security situation in Burundi had not improved since they had fled.[114] > > [Footnotes removed.]

9. Even viewing this in the context of improvements in the arrangement and funding of social welfare in Burundi since 2020,[115] there is a real risk NYQK would face impediments to his socio-economic reintegration as a returnee. It is possible, as the Minister contends, NYQK might have skills from his education and vocational qualifications in Australia which are transferable to Burundi. It is obvious that NYQK's capability of earning income utilising any transferable skills requires paid employment. It is this, the opportunity to obtain employment, which is likely to be adversely affected by any relapse in his schizophrenic illness and further episodes of psychosis. The available materials do not establish any reasonable basis on which to find NYQK is likely to be able to obtain the psychiatric and other treatment he needs to manage his psychiatric disorder should he be returned to Burundi.
10. NYQK's Twa ethnicity is likely to be an additional factor affecting how he is perceived and treated in the context of the rapatrié-résident division applied to returnees. As a Twa returnee, he may well encounter difficulties obtaining official documentation[116] and he may face exclusion from opportunities in the formal economy, as often occurs to members of the Twa ethnic group.[117]
11. Considering these matters, I am satisfied NYQK is likely to face substantial impediments should he be returned to Burundi. The impediments are likely to be enduring rather than temporary, particularly if his mental illness relapses and he experiences further psychotic episodes.
12. This consideration weighs in favour of revocation.

1. No issues have been raised by either party in respect of any impact on Australian business interests in this case. The materials before the Tribunal do not raise any such issue.
2. Consequently, this consideration does not weigh for or against revocation of the Visa cancellation decision.

1. NYQK urged me to adopt the path of reasoning the Tribunal followed in TVVT and Minister for Immigration and Multicultural Affairs[118] when weighing the relevant considerations in his case. The path of reasoning required is well established. Necessarily, each case turns on its own facts.
2. I am mindful that the protection of the Australian community is generally to be given more weight than other considerations. Some of NYQK's offending conduct is viewed very seriously, particularly his serious assault of a police officer and his family violence offences. When the serious conduct he engaged in is considered on a spectrum of criminal conduct, as the sentences he was given plainly reveal, his criminal offences are not at the higher end and they did not cause substantial harm to his victims. This goes to the weight of the protection consideration.
3. The risk NYQK might engage in further serious conduct is moderate to high, particularly should he fail to adhere to prescribed treatment for his schizophrenic illness or decide to forego further treatment. There is a substantial risk of harm to the Australian community should this occur. NYQK's resort to anger and aggressive behaviour, including wielding knives in altercations and in public, underpins the nature of harm he could cause. In the past, NYQK has not inflicted physical harm using a knife during incidents of violent behaviour. I accept that doing so requires a substantial step he has not yet taken.
4. It is of significant concern that NYQK's violent behaviour is likely associated with his schizophrenic illness and psychosis, during which his perceptions of reality and his judgment are impaired. Dysregulation of these kinds increases the risk to the Australian community should the Visa cancellation decision be revoked. This highlights the importance of NYQK taking medication to manage his mental illness. When he is taking the prescribed medication, there is no record of him offending.
5. NYQK has little insight into his mental illness. He accepts the diagnosis and adheres to prescribed treatment when required to do so. Nonetheless, he does not believe he requires medication to manage his illness, and he prefers not to take the medications prescribed as they have undesirable, stultifying side effects. This increases the risk of relapse and further episodes of psychosis, and the related risk he will engage in further dysregulated serious conduct and cause harm to individuals or the Australian community. Account must be taken of factors which protect against such an eventuality, including the network of support BN and MK described and the change in NYQK's circumstances following the death of his mother and his completion of a drug-related rehabilitation course. I accept NYQK has gained some insight into the role of his previous cannabis use in his dysregulated behaviour and his offending conduct. Much turns on whether his avowed intention of abstinence holds. If it does and he continues to take antipsychotic medications, the risk he will engage in further serious offending conduct is reduced. If it does not and he resumes use of cannabis (or other psychoactive drugs) and ceases taking medications to manage his schizophrenic illness, the risk is increased.
6. While these are matters which have been tested while NYQK was in the community in 2021 and 2022, they held good only while he was under a mental health treatment order and shortly thereafter. NYQK's current resolve has not been tested in the community. Without such an order, by his own account, he does not believe he requires medication and he does not plan to take it unless it is prescribed. This increases the risk and the weight which should be given.
7. When the seriousness of NYQK's offending and the risk of harm to the Australian community are combined, I am satisfied this consideration weighs solidly against revocation.
8. To this, NYQK's family violence adds weight against revocation. Even though his family violence is heavily contextualised by childhood trauma, exposure to CM's domestic violence against his mother as a teenager, heavy use of and possible addiction to cannabis and psychotic mental disorder, family violence in any form is an abhorrent scourge in the Australian community. The additional weight of this consideration is moderated only by the nature of the family violence NYQK engaged in, including verbal abuse, breaching the DVO on four occasions and causing damage to property.
9. Australian community expectations also weigh against revocation. While the privilege of remaining in Australia is tempered to some degree by non-refoulement obligations, NYQK has breached the expectation of obedience to Australian law. NYQK's conduct raises concerns about his character which tests the tolerance of the Australian community. The concern about his character is sharpened by his lack of insight into his mental illness and the risk he could cause further harm should he forgo further treatment. The weight of these considerations is reduced by the length of time NYQK has resided in Australia from the age of 13.
10. Against these primary considerations, the strength, nature and duration of NYQK's ties to Australia, the best interests of minor children and other considerations weigh in favour of revoking the decision to cancel his Visa.
11. NYQK has spent most of his life in Australia. He completed his schooling in Australia, he has worked in employment in Australia after leaving school and he considers Australia to be his home. The substantial majority of his remaining family members, but for two sisters (one of whom he has not met) and an uncle, are residing in Australia. He has an extensive family network of immediate and extended family members, and close family friends within the Burundian community residing in Australia. This increases the weight which should be given to this primary consideration.
12. NYQK has seven relatives who are minor children. There is scant evidence about these children and their relationships with NYQK. Despite this, I am satisfied their interests are affected by the decision in respect of NYQK's Visa. It is likely, by inference at least, NYQK maintains contact with some of these children, particularly IN, within the network of interwoven family relationships. This is likely so even though NYQK's attempt to reside with his father was short-lived. There is little evidence of any communication between NYQK and each of the minor children during the period of his incarceration and immigration detention. NYQK does not have, and is unlikely to have, a parental role with IN and his 6 minor cousins. This diminishes the weight that can be given.
13. There is not sufficient evidence or any reasonable basis on which to infer any of the minor children were negatively impacted by or exposed to NYQK's offending conduct and his family violence. IN's views are known, and these add weight in favour of revocation.
14. Even despite the paucity of relevant evidence, it is probable that non-revocation of the decision to cancel NYQK's Visa is not in the best interests of each of the minor children. Non-revocation would mean each of these children would be physically separated from NYQK and they would not be able to physically enjoin him in their family life in Australia. Even though there are risks associated with his mental illness, particularly if he ceases treatment and relapses, I am satisfied non-revocation is not in their best interests. This primary consideration weighs in favour of revoking the decision to cancel NYQK's Visa, but only slightly.
15. Other considerations are generally given less weight than primary considerations.
16. On the submissions of the parties, much turns on the legal consequences of the decision, including consideration of non-refoulement claims NYQK has made in these proceedings, and any impediments NYQK will face should he be returned to Burundi.
17. The legal consequences of non-revocation involve three hypothetical options. The first is that NYQK is held in immigration detention until he can be returned to Burundi, despite findings I have made in respect of his non-refoulement claims, particularly relating to mental illness. The second option is that he is held in immigration detention and then granted a bridging visa allowing him into the Australian community under restrictions, pending removal to a third country. Under either option, once NYQZ is removed from Australia, in all likelihood, he would not be allowed to return. The third is that the Minister intervenes.
18. The third option is remote and this does not affect the weight of this consideration.
19. The first and second options are more probable. Even though the legal consequences of each would be the result of Government policy, the practical effect for NYQK, in human terms, of each option is dire. Under the first option, he would be forcibly returned to Burundi despite findings that in doing so there is a real risk he will suffer significant harm and there are well-founded fears of systematic discrimination. This would likely breach Australia's international refoulement obligations, despite the absence of a 'protection finding' for the purposes of s 197C(3) of the Act. The consequences for NYQK would likely be dire, whereas the consequences for Australia, if any at all, would likely be reputational. Under the second option, NYQK would lose his liberty to some degree for an indefinite period until he is removed to a third country willing to take him, should such a country be found at some future point. Under both options, NYQK would be physically separated from his extended family, including minor children, and close family friends from whom he draws support, albeit that this would occur at some indeterminate point in the future under the second option.
20. The first of these options weighs very heavily in favour of revoking the Visa cancellation decision. The second also weighs in favour of revocation, but less heavily.
21. Should NYQK be removed to Burundi, it is likely he will face substantial impediments. I have found his socio-economic reintegration into Burundi, having left at the age of 4, would probably be impeded by his mental illness and related discrimination. It is highly unlikely NYQK would be able to obtain the psychiatric treatment he requires to manage his schizophrenic disorder. Without treatment, NYQK's schizophrenic illness is likely to relapse and he is likely to experience further psychotic episodes. Such an eventuality would likely have a compounding effect on impediments he might other experience as a result of his Twa ethnicity and his status as a 'returnee'.
22. These impediments would likely have an enduring quality, well beyond the initial period in which one could anticipate NYQK would experience temporary difficulties transitioning and reintegrating into life in Burundi. On the present evidence, it is unlikely NYQK would obtain much assistance from his uncle and sister in Burundi. As I understand NYQK's evidence, his single telephone contact with his uncle was not productive of any offer of assistance, rather his uncle asked him for money. NYQK has no contact with his sister in Burundi. MK gave evidence the sister leads a spartan subsistence life in a remote village without utilities.
23. These considerations weigh very heavily in favour of revoking the decision to cancel NYQK's Visa.
24. Weighing all the relevant considerations, on balance, I am satisfied the primary and other considerations weighing in favour of revocation outweigh all other considerations, including the protection consideration.
25. The primary considerations of protection, family violence and Australian community expectations are very weighty matters. So is the primary consideration of NYQK's ties to Australia, particularly as he has lived in Australia for most of his life. While considerations relating to legal consequences of the decision and impediments on removal generally carry less weight than primary considerations, and the protection consideration in particular, in the circumstances of NYQK's case they, too, involve very weighty considerations which add substantially to the weighing exercise.
26. There are no additional matters to consider arising from the materials or the submissions of the parties. As I have said, I do not accept the proposition advanced for NYQK that Australian community expectations in the particular circumstances of his case can properly be evaluated as another consideration, beyond the matters already traversed in s 8.5 of the Direction.
27. Overall, I am satisfied and find that the considerations in weighing in favour of revocation of the Visa cancellation decision outweigh those weighing against such a conclusion.
28. That being so, even though NYQK does not pass the character test, for the purposes of s 501CA(b)(ii) of the Act, I am satisfied there is another reason to revoke the decision to cancel NYQK's Visa.
29. From this it follows the decision of the Minister's delegate on 4 September 2025 must be set aside and the decision to cancel NYQK's Visa revoked.

1. The 4 September 2025 decision under review is set aside and in substitution, under s 501CA(4) of the Act, the Tribunal decides to revoke the decision to cancel NYQK's Refugee (Class XB) (Subclass 200) visa.

Solicitor for Applicant: Ms Neerja Thirunavukarasu

Solicitor for Respondent: Mr Jarvis Kirstenfeldt

[41] BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCAFC 14, [107].

[47] Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 (Tanielu), [97] citing Nigro v Secretary to the Department of Justice [2013] VSCA 213, [130].

[75] FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR), per Charlesworth J at [75] and Stewart at [89].

[77] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2, [51]-[52].

[78] Plaintiff S22-2025 v Minister for Immigration and Multicultural Affairs [2025] HCA 36, per Gageler CJ, Edelman and Jagot JJ, [26].

[79] NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38, [9].

[83] [2015] FCA 1444, [40].

[98] Ali v Minister for Home Affairs [2020] FCAFC 109 (Ali), [110].

[99] Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 (Plaintiff M1), [28]-[30].

[101] [2020] HCA 32.

[102] See for example [2020] HCATrans 206 and 207 (27 November 2020) (Drame).

[106] For example, Pacifique Irankunda, Laura Heatherington, Jessica Fitts, 'Local terms and understandings of mental health problems in Burundi', Transcultural Psychiatry, 25 January 2017 (835-855); World Health Organization (WHO), 'Psychiatrists working in mental health sector (per 100 000)', 25 April 2019 (855); Pacifique Irankunda, Laurie Heatherington, 'Mental health treatment outcome expectancies in Burundi', Transcultural Psychiatry, 17 June 2016 (856-875); and Ventevogel P, Jordans M, Reis R et al, 'Madness or sadness? Local concepts of mental illness in four conflict-affected African communities', Conflict and Health 7, 3 (2013) (884-899).

[107] World Health Organization (WHO), 'Public Health Situation Analysis (PHSA): Burundi', 29 November 2024, Exhibit 1, 686-702.

[108] Bonaventure Nikoyandoye, Leandre Simbananiye, Annalisa Casini, 'Calling for the inclusion of psychosocial professionals in the health system in Burundi', Journal of Public Health in Africa, 31 May 2025, Exhibit 1, 876-880; Kenfe Tesfay Berhe, Hailay Abrha Gesesew, Paul Ward, 'Traditional healing practice... mental health in sub-Saharan Africa: a systemic review', BMJ Open 2024, Exhibit 1, 822-834.

[113] [2023] HCA 37.