ARTA|2026-01-16|Before: General Member J

The Applicant was born in Myanmar (Myanmar). He is a citizen of Myanmar.
The Applicant arrived in Australia in July 2015.
The Applicant is single.
The Applicant has two siblings in Australia, a brother and a sister. The evidence indicates that he is estranged from his sister and has limited contact with his brother.
The Applicant prior to his visa cancellation, held a Subclass 200 Refugee visa, which gave him the right to permanently reside in Australia.
The Applicant claims that he cannot return to Myanmar as he would face persecution in that country.

The evidence indicates that prior to May 2022, the time of the Applicant's index offending, he had no criminal antecedents in Australia or overseas.
On 11 March 2022 the Applicant, after drinking heavily, went to a brothel that he had frequented in the past, seeking services. The Applicant was advised that the requested services were unavailable. The Applicant when refused service, became angry, drove to a petrol station, purchased a jerry can, filled it with petrol, he also purchased a lighter a legionnaires hat, and returned to the premises and wearing the hat, gloves and a surgical face mask set fire to them. The fire was able to be brought under control within a short period of time by the manager of the premises and an attendant fire crew. Nevertheless, the damage to the premises and the repair work necessary cost in the range of $150,000 to carry out. The premises was open for business at the time of the arson.

Judge Allen in the County Court of Victoria sentenced the Applicant on 21 December 2023 and the Tribunal has had regard to the sentencing decision.
Judge Allen noted at the outset of the judgement that the Applicant appeared before the court with no criminal history and noted that the Applicant had lived in Australia as a refugee for the past eight or nine years. Judge Allen noted that during that period the Applicant had conducted himself admirably, he was part of a strong Christian community, he worked hard, and he had nearly completed a bricklaying apprenticeship.
Judge Allen noted that:

"the future was looking bright for you in rebuilding a new life in this country. Surrounded by members of your community, engaging in the Australian community, engaging in employment with strong career prospects ahead in a solid trade. All of that came to an end as a result of the conduct that is described in the two prosecution openings".

With respect to the Applicant's offending Judge Allen noted that:

"it is simply sufficient to say that on 11 March 2022, probably intoxicated and probably emotionally distressed already, you went to a brothel, seeking services. You were told that they were not available. You became angry and aggrieved by that, and for some bizarre reason, which I do not think you have been able to explain, you decided to get some petrol and set fire to the premises. > > Fortunately for you, the fire was relatively minor, relatively as far as arson is concerned, and was quickly brought under control by the manager of the premises. Nevertheless, quite a deal of repair work was necessary which cost something in the range of $150,000 to carry out. > > During the course of the investigation into that matter, the police had cause to look at your electronic devices, your mobile phone in particular, and it was by reason of that, that they discovered that you are in possession of the child abuse material. > > The child abuse material was quite extensive in number, but relatively speaking, as far as this kind of offending is concerned, the number of items of child abuse material you had by way of pictures and videos was relatively minor, somewhere towards the lower end of the spectrum, but it contained some appallingly gross examples of child abuse. Some of it contained real prepubescent children, young children being abused and filmed in the course of that. I have read the description of the material and some of it is horrifying, I must say. It is appalling".

Judge Allen noted and accepted that the Applicant was deeply ashamed for his offending and noted that fortunately the Applicant's community had pardoned him for bringing shame on them and the objective moral wrong that he engaged in by obtaining child abuse material possessing it and viewing it. Judge Allen noted that the Applicant admitted to police that he had viewed the material and that he liked to watch it, which Judge Allen noted was "a pretty stark admission. I take into account that you made that admission".
Judge Allen noted that since the Applicant was charged with respect to these offences that he had now spent one year and nine months in jail in pre-sentence detention. Judge Allen noted that this was a long period of time, particularly given the fact that the Applicant had been isolated in jail as a consequence of his language difficulties, his cultural difficulties, and the fact that he was a member of a very small cultural community. Judge Allen noted the fact that the Applicant had very few visitors in prison apart from his uncle who had visited him on three occasions and that the Applicant had been too ashamed to accept visits from others.
Judge Allen noted that when the Applicant was last before the County Court to enter a plea, members of the Burmese community attended in support of the Applicant. Judge Allen noted that the Applicant had pleaded guilty to the offending at the first available opportunity, a plea that was entered during the COVID-19 global pandemic which was having a very serious adverse effect on the administration of criminal justice. Judge Allen noted that the Applicant's guilty plea had assisted the courts in that regard to what Judge Allen described as the Applicant's "great credit".
Judge Allen noted that the Applicant's guilty plea exhibited acceptance of responsibility for the offending and was consistent with the shame that the Applicant experienced because of the offending. Indeed, Judge Allen noted that the prosecutor described the Applicant as developing a sense of "real remorse and insight into the gravity of your offending, particularly in relation to the child abuse material".
Judge Allen acknowledged the fact that the Applicant's term of imprisonment and continued term of imprisonment had been particularly hard due to the Applicant's cultural isolation, language difficulties, along with the fact that it was the Applicant's first time in prison.
Judge Allen took into consideration the likelihood that the Applicant would be deported as a consequence of his offending and that it would be inevitable that he would be taken into immigration detention. Judge Allen noted that this was "a form of extra-curial, that is additional, punishment".
Having regard to the Applicant's prospects of rehabilitation Judge Allen noted that:

"I take into account that you have demonstrated good prospects of rehabilitation whilst you have been in jail for the last nine months. You have engaged in programs and courses, not only English language and other courses, but especially in relation to your alcohol abuse problem in order to deal with that. > > I accept your plans upon your release when you're able to, subject to the immigration restrictions, to recommence your apprenticeship, so that you might complete it and qualify as a bricklayer, and hopefully be able to work in the Australian community, although there are question marks hanging over your ability to do that, which I also, as I have said, take into account. > > In my view, you have good prospects of rehabilitation, bearing in mind the matters I have enumerated, the absence of priors, your conduct since you have been in custody, the ongoing support you have in your community and your family, in particular your uncle, and what I have read in the psychiatric and psychological material. You are not a paedophile. You have acknowledged what you have done is wrong and you are determined to put things right in the future. I accept all of those matters, and they augur well in terms of your prospects of rehabilitation. > > I take into account of course, that there has already been a delay in this matter, approaching now two years, and this matter has been hanging over your head for a significant period of time, which is also a form of punishment in itself. Nevertheless, both charges are serious. The arson charge was serious. I have looked at the authorities in relation to that, and of course, this was a serious example, although at the lower end of the spectrum, possession of child abuse material".

As noted, Judge Allen went on to sentence the Applicant for 3 ½ years for both the arson and child abuse material offences and ordered that the Applicant serve a minimum sentence of two years before he was eligible for parole. Judge Allen also noted that the Applicant had already served 638 days by way of pre-sentence detention.
It was also noted that the Applicant would be the subject of an order under the Sex Offender's Registration Act 2004 (Vic) requiring a reporting period of eight years. Judge Allen explained to the Applicant that he would be required to report for a period of eight years with respect to being on the sex offenders register.

On 6 February 2024 the Applicant provided a request for revocation of the mandatory cancellation of his visa to the Department of Home Affairs.
The Applicant stated the reasons that he was seeking revocation were:

"I don't feel safe in my home country. There is ongoing war, many friends and some family, have been killed in fighting, I have had no contact with my family since March 2022. I have great concerns for my life and safety in my country when I arrive. I fear for my life and the lives of family still alive, please allow me to stay in Australia and work hard upon release".

The Applicant advised the Department that he would provide some letters of support and character references later and that it was difficult to do so because he was currently imprisoned.
The Applicant completed a personal particulars form in response to the mandatory cancellation of his visa. In response to the question in that form about the impact on family members of a negative s 501 decision outcome, the Applicant stated that he believed that his family would be devastated if his visa remained cancelled because of safety concerns in the event that he was returned to Myanmar.
The Applicant in response to the question asking him to account for his criminal offending behaviour stated that:

"there is no excuse for my offending, I can only offer a reason, or reasons. I had received news that my close friend had died overseas. I drank alcohol heavily for an entire day and made a stupid decision to go to a massage parlour, the girl I would normally see was busy for many hours, I became agitated and angry, and while drunk I through (sic) fuel around fuel at the entry and light fire and then panic and go back to put out but it was to (sic) late and already out, I regret very much"

In the personal particulars form the Applicant stated that he had been engaging in drug and alcohol programs in prison and at the time of completion of the form he was hoping to engage in a sex offenders' program.
In respect to his work history the Applicant advised that he had been a bricklayer from 2019 to 2022 working for Hudson Brickworks and that he had been studying a course in bricklaying, a Certificate III course, which necessitated two years of study.
The Applicant stated that he was a member of the Mara Christian Church in Victoria, and a member of the church choir and that he also engaged in fundraising activities with the church.
The Applicant stated that he had concerns and fears about returning to Myanmar. The Applicant stated that there was an ongoing war in his country and that he had lost friends and family and that given his age he would likely be caught up in the fighting which was terrifying to him. The Applicant stated that he believed he would be killed either by being forced into fighting in the war in Myanmar or if he refused to fight that he would be executed.
The Applicant was asked to provide any other information that he wanted the decision-maker to take into account in relation to his case. The Applicant stated that:

"I very much regret decisions Ive (sic) made in the past and have been very active within Christian community in church, I would have no problem with any monitoring and/or extended supervision orders placed on me if I could be granted permission to remain in Australia".

The Applicant provided letters from the Mara Christian Church of Victoria. One from Reverend Van Bik, a Senior Pastor, dated 18 February 2024.
Reverend Van Bick stated that:

"we are writing this letter to support and acknowledge that Mr Hu Hmo, DOB 5/5/1994 is a member of the Mara Christian Church of Victoria since his arrival on 02 July, 2015. Thereafter, he was greatly involved in Church activities and served as a leader in the youth department. Everyone who knows and was a part of his life knows that. > > Mr Hu Hmo is a person who is always ready to help those in need and be a blessing channel to many in one way or another. We as a Church, acknowledge the generosity of Mr Hu Hmo amongst our church members and everyone around him".

The Applicant also provided a letter from Mr David Chozah the Chairman of the Mara Community of Victoria dated 18 February 2024. Mr Chozah notes that:

"we are writing this letter to support and acknowledge that Mr Hu Hmo, DOB 5/5/1994 is a member of the Mara Community of Victoria since he arrived Australia on 02 July, 2015. Ever since his arrival, he served as a reliable member of our community. Everyone who knows and was a part of his life knows that Mr. Hu Hmo is a person who tries his best to make genuine connections with those around him. Likewise, we as a community also recognises the good deeds Mr Hu Hmo has done for his people and the way he has never hesitated to extend a helping hand to those in need. Furthermore, he is an active member and was greatly involved in organising community events".

The Applicant provided a statement to the Tribunal in support of his review application which is dated 24 November 2025 and the Tribunal has decided to replicate it in full below:

I, Hu Hmo, of Melbourne Immigration Transit Accomodation, Camp Rd, Broadmeadows, in the State of Victoria, unemployed, make the following statement: > > I make this statement in response to my visa cancellation and to outline my protection claims. > > I confirm that the information I provided to the Department of Home Affairs is correct, except where I have provided further clarification below. > > My offending and rehabilitation > > I acknowledge that I committed serious crimes - arson and knowingly possessing child exploitation material. I deeply regret what I did. I feel significant shame and remorse about my actions. > > The arson occurred in the context of my use of alcohol and experience of grief and distress after the death of my cousin. There is no excuse for what I did, it was a terrible thing to do. Although I realised the seriousness of what I had done soon after, it was too late. I deeply regret my actions and am deeply sorry for my offence. > > The possession of child exploitation material occurred in a context in which I was added to a group chat that shared sexual images, both adults and underage. I did not share images, but I received and viewed material sent in this group chat. > > I realise that in the back of my mind I knew it was not a good thing. When I was arrested is when I came to know how serious it was to possess this material. > > I have attempted to change my ways because of this. When I was young in Myanmar, I had a friend who was much older than me that introduced me to alcohol. He was an alcoholic. The environment and situation was very bad. We lived in poverty, there was a lot of violence. I often saw the police and soldiers chasing people, arresting people for forced labour, beating people and more. I dropped out of school. I had no real education. Over time as life became more unstable and we moved around and my family had a lot of problems, I started drinking more to deal with what was happening in life. Due to what was happening in Myanmar, I fled the country. I went to Malaysia and I started drinking more to forget about what had happened to me, about my family and everything that had happened in Myanmar. > > I became an alcoholic. This continued until I came to prison in Australia. I used to drink every day. It is no excuse, but I know that if I had not been drinking daily, I would not have committed these offences. It pushed me into the darkness, and I ignored what I knew about what was right and wrong. After being in prison and now immigration detention for years, sober, I have a clear mind > > and I feel like a completely different person. I have different thinking. I don't drink at all anymore and I don't want to. > > I have completed some programs during my time in prison to address my offending behaviour and the issues that led to my offending behaviour. I completed the PEACE program. During this program I learnt that peace is all about your mind and how you see things, rather than what is happening around us. I learned to focus on how I see things, and how precious human life is. I learned about forward thinking, not thinking too much about what happened to us in the past and focusing on hope and the future and what I want to do in the future. We spoke about how to prepare and how to be more optimistic about the future. We learned about kindness and compassion. This was very helpful for me. It totally changed me. I greatly regret what I did in the past. I received a lot of encouragement to change my way of thinking and living and I realised that the mindset I used to have was harmful. > > I completed the ATLAS program. This taught us how to live our life, how to build a family, how to make a good family and a good home, what a good environment looked like. > > I completed a drug and alcohol program in prison, Changing Gear. I learned a lot because before this I was an alcoholic. I paid a lot of attention in the sessions about alcohol use. We were taught how to be more realistic about our lives, how to say no to friends that are not helpful, how to leave old friends and environments behind, and how to make good choices about what we do. We were taught about the consequences of drinking alcohol on our behaviour and the consequences of our actions. This was a lot of new information for me. I had never done anything like this before. > > In the training and sessions, I participated in, the information I learned also addressed sexual-related offences. I tried to complete a specific sex offender's program in prison, but the prison advised me that I was not eligible to complete this program because it was not recommended for me due to the particular nature of my offence, and then there not being enough time on my sentence for someone who was not required to do it to complete it. I would still like to do this if I am released to make sure I am reflecting on my pasts actions and taking responsibility for them. Despite this, I have taken a lot of steps to understand my behaviour and I feel deep remorse. I understand how harmful it is, even for adults, let alone children, to be forced into sexual activity. Noone should ever be doing this, especially to children. It will destroy their lives. When I first saw the images, I was shocked. I realise that my mindset and lifestyle, with my alcoholism, made me not only forget the past but not be really present in my life or think about the reality of what was happening. I now realise what receiving these images was supporting and how harmful it is. I greatly regret what I have done and being part of this group. I do not have words to describe my regret and shame. It is > > a great shame, I am very shameful about myself when I think about it. I realise that being part of that group was part of being in the darkness as an alcoholic and had very serious consequences. My behaviour was also against my traditions, my religion and against the Bible. > > I also completed the Prison Journeys program about how faith can help me address my offending behaviour and change my ways. > > Now I pray to God every day, I read my Bible and I repent. I have made up my mind not to go back to that kind of lifestyle I used to live. I have also wasted a long time of my life, as well as done things I am very ashamed of. I will never go back to drinking and this life. I have spent more than three years in prison and more now in detention. I have learned the biggest lessons in my life. I will be a good person. I will be staying away from bad influences. I will not break the laws. I will live my life according to the Bible, the Bible will be my guide. I am very hopeful I will be able to establish a happy and good life. > > My English has improved a lot. My language barrier was a factor in contributing to the bad choices I made, because of not understanding things properly and also feeling isolated. > > If I am able to be back in the community, I will build a new life. I plan to find a job to earn a living, saving money and I want to have a family. I want to be a better person and I have made up my mind to never go back to the life I lived. > > In prison I went to church services regularly - Catholic Church, Salvation Army, Uniting Church and more. In immigration detention there are no church services. Attending church helped me reflect on my actions and my values and become a better person, and think about my actions and what led me there. I met a chaplain, Paul, while I was in prison. We developed a good relationship and had deep conversations. I talked to him about my story and he provides moral support and shares the words of God with me. He reads the Bible to me and encourages me to pray and be connected to and live my faith. He came to visit me in immigration detention. He will be coming to see me again. We are in contact. Paul brought me a lot of encouragement to continue on the path I am on, not go back to my old life. I cried when we had a conversation recently because all of this time I have not had a visitor. And when Paul came, he really helped me. He spoke about faith, living according to the Bible. He gave me a lot of hope to keep going and to live according to the Bible. His support is helping me continue on my path of rehabilitation. > > Connections to the Australian Community > > I have lived in Australia for 10 years and I have connections in the Australian community. > > I am a member of the MARA Christian Church and MARA community in Sunshine. It is a Chin church and Chin community. I speak with people from the church, like the Chairman and Secretary of the church committee, about once a month. They provide me support and encouragement, they pray for me to return to the community with a new mindset. They support me to keep to my faith and have a better future, and talk with me about my faith and my values and my improved mindset. If I am released into the community I will continue to attend this church and community activities. > > Paul, a chaplain from a Catholic Church that visited me in immigration detention, is supporting me. We are in contact by email and phone and he will visit again with other church members. He provides guidance, encouragement and direction. He will continue to support me with my faith, my mindset and connecting with the church community. > > My older sister and older brother are in Australia. They have their own families with children. > > I also know people from the same clan as me who live in the community, aunts and uncles and cousins. > > I feel ashamed to have visits from my family while I am in prison and detention since my offending because I am a sinner. I have to resolve my problems on my own. > > I have a cousin from my clan that I am in contact with and have been in contact with occasionally throughout my time in prison and immigration detention. We have spoken more since I came to immigration detention as it is now easier to be in contact. > > If I am returned to Myanmar or sent to Nauru or remain in detention, I think my family would be scared for my safety. I think the people who have supported me, like my church community and my cousin, would be really worried about me and scared for what will happen to me. I think they will be affected. > > Fears of harm if returned to Myanmar > > I can't return to Myanmar. If I am forced to return, I fear I will be harmed as a Chin person and a young man, particularly someone who fled as a refugee. > > I fled my country to escape forced conscription, civil war and the targeting of Chin people. I could not live under the kind of rule Myanmar was under, it was not safe. I fled to Malaysia and I could not return to Myanmar. From Malaysia, through the UN I was granted a Subclass 200 Refugee visa to Australia because of my fears of persecution and harm if I was to return to Myanmar. I arrived in Australia in July 2015 on a Subclass 200 Refugee visa. > > I know I would be in very big trouble if I was sent back. I would be arrested because of fleeing the country. I left illegally, I don't have the right travel documents and I no longer have my national identity card. It would be obvious that I fled the country and that I am being sent back against my will. This would make me be seen to be against the military government. I believe at minimum I would be put in jail but most likely I would be killed. I have also taken part in protests against the Myanmar military regime since being in Australia. I fear that this information would be known to the authorities and would make me more of a target. > > The military rulers do whatever they want, they have no laws. They are killing civilians, bombing civilians. > > The military hate Chin people. They bombed the churches because they hate Chin people, we are Christian. They target us more than others because Chin people have been very active in opposing and rebelling against the military regime. So as a Chin person who fled the country, who lived in Australia as a refugee and who participated in protests against the Myanmar government and who is actively a Christian, I will be in serious danger if I am sent back to Myanmar. They have destroyed almost all of the churches in Myanmar, in Chin State. They bomb them and burn them down. I don't know why they do this to us. We respect their religion and have no intentions to do anything to their monasteries or temples, but they keep destroying our churches to stop us practising our faith. > > Many villages and towns in Chin State are totally destroyed and Chin people have had to flee to the bush. Many people cannot live in their homes because they will be targeted and killed. They have to live in the forest with no shelter, trying to survive however they can. I don't know where my remaining family who were in Myanmar are. They fled their homes. They are hiding in the forest, or somewhere along the border, or dead. I have no contact with them. I don't know how to find them or establish contact with them due to the situation, if they are alive. There is constant bombings and gun fights. People are running for their lives. > > Due to the civil war and conflict and the military regime, I am afraid I will be forcibly conscripted to the military because of my age. I fear that if I don't join the military I will be imprisoned or killed. I also fear that I will be assumed to be a member of the rebel forces because of my age and because I am Chin. If the military regime think I am a member of the rebel forces, I am afraid I will be imprisoned, tortured or killed. > > The authorities cannot protect me. The military regime is who will target me and who are killing the people, especially Chin people. Every night I have nightmares about being tortured by the regime in Myanmar. > > The regime is in power all over Myanmar. Even if I relocate and live somewhere outside of Chin State, I have no national identity card anymore. I need to show this at checkpoints. I will have to contact the authorities to try to get one. At checkpoints, you have to show who you are and then the authorities know everything about you. I will be identifiable as a Chin person wherever I go. I will face harassment, targeting, possible forced conscription and more for all the above reasons all over Myanmar. I cannot practice my faith openly anywhere in Myanmar due to the persecution of Christians. > > I have nowhere to go in Myanmar. I don't know if my family there are still alive as they have fled their village due to the war and targeting of Chin people. I don't know how I would be able to survive there - to live, to find shelter, to find employment. I have no options to survive in Myanmar. People are starving there in the forest. I can't even think of a way to survive. > > Fear of Harm if Transferred to Nauru > > I fear that if I were sent to Nauru, I fear that I will face serious hardship and problems. I don't know anything about Nauru. I am sure there will be no Chin people and I don't know how I will survive in Nauru. > > I know hardly anything about Nauru but I am afraid that I might be harmed or face problems as someone who was deported or transferred from Australia. I have been told about media articles about criminals being deported to Nauru and worry that I will be harassed or targeted by people in Nauru because of this. I am afraid of this because of my criminal record in particular, that people in Nauru will see me as a child sex offender. I am afraid that I will be attacked or even killed because of the record. They will think I am dangerous for their children. I am scared that I will be hated, isolated and attacked. People will already see me as a criminal due to being transferred from Australia and sooner or later they will hear rumours or hear something about the types of crimes. Nauru is a very small country and people will share a lot of information and know a lot. > > I am afraid that it will be more difficult to remain on my current path of not drinking in Nauru. I will have none of my supports, particularly my faith community. I will be isolated and lonely, and life will be very difficult there. In these circumstances, if I had no opportunity to improve my life at all in Nauru, I am worried I would relapse to drinking. In Australia I have support, and I have people and community who will keep me on this path. I have made up my mind and I have stopped drinking. I would have opportunities in Australia to shape my new life. Without any of that, in a place I know nothing about, it is very unpredictable what might happen. > > I am afraid that the government of Nauru will send me back to Myanmar. I am very worried that they can do this to me. If the Australian government send me to Nauru, and then they have just washed their hands of me, then I will be in the hands of the Nauru government. I don't know what kind of government they are. They will already have a view of me as a criminal. I don't think there will be human rights in Nauru. My life will be up to whatever they do to me, and I will have no say. They could just send me to Myanmar. If this happens, I do not think I will survive. > > My English has improved but I still need a Burmese interpreter for many things. I will have a language barrier and issues in Nauru due to my English. There won't be Chin people or Burmese people to help me communicate. I will be isolated and lonely and have problems interacting with the authorities, particularly if there are issues about my rights or legal issues or if my ability to live in Nauru is in question. I am worried about misunderstanding in these contexts. > > I don't know how I will survive in Nauru. I don't know what kind of support could exist for me, how I will get money or food or where I can live or what will happen if I have a health issue. > > Circumstances on release > > My cousin will support me to stay on track if I am released into the community. She told me I was crazy before, that I did not listen to her advice and this is why I am in this situation. She told me she will support me to not drink. She said she understands I am determined to make a new life and that she will support me to stay on the right track. > > I plan to find work. I previously did part of a bricklaying apprenticeship which I plan to complete. Construction work is my passion and I have relevant experience for this. > > The MARA church and church community will support me if I am released into the community. I can attend church services and re-engage in church activities. Church community members have said they will support me to follow my faith, to be connected to positive influences and to stay on the right track. > > Paul, the chaplain, will continue to support me if I am released. He will provide moral and religious support and encouragement. > > If I am released to the community, I want to do alcohol counselling to support me to maintain the changes I have made in the community. I will also complete a program or counselling to address my past offences of possessing child exploitation material, to reflect even more on my past actions. The pastor from my church will help me to organise programs and services that will help me stay on the right path. > > Conclusion > > I am deeply ashamed and remorseful for the offences I committed. There is no excuse for any of my behaviour, and I know it occurred in the context of alcoholism taking me down a dark path. I have changed my mind set aand my relationship to alcohol, and I am now not drinking, and I have clearly committed to not going down that path. My faith and involvement in the Church community will support me to maintain these changes. > > I cannot return to Myanmar. If I do, I will face serious harm as a Chin man, who fled the country. > > I request another chance in the Australian community. > > I believe that this statement is true and correct. This statement was prepared by telephone using a Burmese interpreter.

The Applicant also provided certificates of vocational and rehabilitation and personal development courses that he has undertaken since he had been in prison. The Applicant gave evidence at hearing that these courses were conducted in English.

RESPONDENT'S STATEMENT OF FACTS ISSUES AND CONTENTIONS

The Tribunal received a statement of facts, issues and contentions from the Respondent dated 16 December 2025 which has been duly considered.
The submission notes that the key issue for the Tribunal to determine is whether there is another reason why the cancellation decision should be revoked for the purposes of s 501CA(4)(b)(ii) of the Act, having regard to the primary and other considerations contained in Direction 110. The Minister contends that the Tribunal should not be satisfied that there is another reason why the decision to cancel the Applicant's visa should be revoked and therefore the Tribunal should affirm the decision under review.
Having regard to the Applicant's offending the submission notes that on 21 December 2023 the Applicant was convicted of knowingly possessing child abuse material and criminal damage by fire (arson) for which he was sentenced to 30 months imprisonment.
The Minister's contention is that the Applicant's index offending should be viewed as serious and contends that the imposition of a custodial sentence must be viewed as a reflection of the objective seriousness of the offences involved.
The Minister noted that the Applicant had derived some assistance from Refugee Legal Victoria with respect to the preparation of a personal statement dated 24 November 2025 and evidence of the Applicant's educational qualifications both vocational and rehabilitation based had been also provided.
Having regard to Ministerial Direction 110 with respect to protection of the Australian community the submission notes that with respect to the arson offence the Applicant whilst heavily intoxicated wanted to hire a sex worker and was told when he attended the premises called Rainbow Dolls, that no one was available. The evidence indicates that the Applicant left the premises, purchased a 10-litre jerry can, a legionnaires hat, unleaded fuel and a lighter and returned to the premises and poured petrol on the floor of the entrance of the building, throughout the foyer and into an office. The evidence indicates that there were six persons present in the building when the Applicant started the fire, however, they managed to evacuate the premises without injury. The submission notes that "the Applicant claimed that he was not aware that anyone was in the building at the time, which the prosecution accepted. The Applicant caused approximately $156,303.75 worth of damage to the property".
The submission notes that whilst investigating the Applicant's arson charges the police obtained the Applicant's mobile phone a search of which revealed that the Applicant was in possession of child abuse material. As has been noted, Judge Allen described the material in the Applicant's possession as extensive in number as well as 'horrifying' and 'appalling'. The Applicant claimed that with respect to the possession of this material that he had joined a group chat, and that the child abuse material was on his phone as a consequence of his interaction with that group.
The submission notes that the Applicant's possession of child abuse material was an offence committed against vulnerable members of the community and was supportive of the child abuse exploitation industry.
The submission notes that the safety of the Australian community is the highest priority of the Australian government and that the nature and seriousness of the Applicant's offending conduct must be viewed by the Tribunal as being very serious.
In addressing risk, the Respondent made a number of points. The Respondent noted that given the nature of the offending that if it was repeated in the future that there would be a serious risk of harm to members of the community causing physical, psychological and financial harm. The Respondent noted that the Applicant has expressed remorse for his conduct and has accepted responsibility for his offending. He also claims that he became an alcoholic from a young age and as a consequence of his incarceration is a completely different person and does not drink any more. The submission noted however, that whilst the Applicant was in prison "there was an incident on 18 December 2022 where a 'homebrew' was discovered in the Applicant's cell which he claimed to be used to freshen up the room".
The submission notes that in a Parole Suitability Assessment Report dated 30 January 2025 that the author of the report noted that the Applicant "has a substance use history, predominantly alcohol, which he commenced consuming on a regular basis at the age (sic). A link has been identified between substance use and offending".
The submission notes that whilst the Applicant was in prison he was involved in a violent incident with a fellow inmate on 20 March 2023. On 17 September 2023, when the Applicant was in prison he was found to have make-shift weapons in his cell including two pieces of timber resembling swords/knives and two wooden knives with a blade attached to the end. On 3 February 2025 the Applicant advised prison staff that he was involved in a minor physical altercation with another inmate. "The Minister submits that this history presents a risk of violence from the Applicant in environments where stressors are present".
The submission notes that the Applicant had been assessed by a forensic psychologist Ms Joanne Reynolds who noted a number of risk factors with respect to the Applicant's risk of recidivism. They were a history of problems with education and employment, a history of trauma and instability as a refugee, making the Applicant likely to become angrier if he believed he was being taken advantage of or treated differently to others. Further that the Applicant had experienced using fire to manage anger and may resort to similar behaviour in the future unless he learns coping strategies. Ms Reynolds also identified unmanaged life stressors such as relationship or employment problems and a clear link between substance use and offending.
The Respondent conceded that the fact that the Applicant will remain on the sex offenders register for eight years is a protective factor. The Respondent also noted that the Applicant claims to have the support of his cousin in the community as a protective factor but noted that his cousin's presence and support in the past had not stopped the Applicant from engaging in offending behaviour.
Overall, the Minister's position with respect to primary consideration 1, is that it weighs significantly against revocation of the visa cancellation decision.
The Respondent noted that there is no evidence that the Applicant had engaged in conduct that constitutes family violence and accordingly primary consideration 2 should be afforded neutral weight.
Having regard to the strength, nature and duration of the Applicant's ties to Australia the submission notes that the Applicant had been resident in Australia since the age of 21, a period of 10 years. It was noted that the Applicant's brother, sister, uncle, aunt and cousins reside in Australia. The submission noted that the only family member that the Applicant remained in contact with was his cousin. The submission noted the Applicant's involvement in the MARA Christian Church and MARA community. The Minister's position is that the letters of support from the church do not refer to the Applicant's offending and hence less weight should be given to them. Overall, the Respondent contended that the weight that should be given to primary consideration 3 is very limited.
Having regard to primary consideration 4 the best interests of minor children the Respondent noted that the Applicant did not have any children and hence this consideration should be afforded neutral weight.
With respect to the expectations of the Australian community it was noted that the Applicant through his offending behaviour had failed to obey Australian laws and that given the severity of his offending that the Australian community would expect that he should not hold a visa.
Having regard to 'other considerations' the submission addressed the legal consequences of the decision. The Respondent noted that the Applicant had been granted a Subclass 200 Refugee visa by the Australian Government, however he has not been made the subject of a protection finding. The submission noted that the Applicant has raised a risk of harm if he is removed to either Myanmar or Nauru. It noted that there is nothing to preclude the Applicant from making an application for protection and that he would not be liable to be removed from Australia whilst his protection claims were being assessed. It was conceded that if his visa remained cancelled he would remain in immigration detention and would face removal from Australia in those circumstances however, he would not be removed pending the outcome of any prospective protection visa application that the Applicant lodges.
The Respondent submits that it would be appropriate for the Tribunal to defer from an assessment of whether the Applicant is owed protection obligations in accordance with the High Court decision in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 8 at [72].
Having regard to the Applicant's submission that he would face the prospect of being resettled to Nauru and that in that country he would face serious hardship and problems, the Respondent submits, that the Tribunal "should confine its consideration to the direct legal consequences of a decision to affirm and should not speculate about future possibilities. Such speculation places the reasoning beyond the legal consequences of the decision immediately before the Tribunal". Reference is made to the case of KYZH and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1718 at [175].
The Respondent submits that the Tribunal should follow the reasoning of DP Burford in KZYH at [187] which states that:

"it is clear that a legal consequence of refusal would be the Applicant would remain on the removal pathway on a BVR. His exposure to removal to a third country is a legal consequence of the decision. In my view, the significance of that legal consequence for the purpose of this decision does not rest in the third country to which the Applicant might be removed if an agreement was reached with respect to him, or a class of persons to which he belongs (affected by the decision in NZYQ). The significance lies in the ongoing uncertainty created by the prospect of removal and the lack of any avenue for review..."

Overall, the Respondent submits that this consideration weighs in favour of revocation but is outweighed by the primary considerations 1 and 5.
Having regard to the extent of impediments if the Applicant was removed from Australia the submission notes that the Applicant is 31 years old and does not have any known medical conditions. He has accumulated significant work experience in Australia as a bricklayer and he has also completed several educational courses that should assist him with employment prospects into the future. The Respondent acknowledges that the Applicant may experience some difficulty in re-establishing himself in Myanmar however, as he is in good health and has transferable employment skills this should assist to support his future. The Respondent also concedes that the Applicant was likely to face practical, emotional and financial hardship re-establishing his life in Myanmar. The Respondent contends that this consideration should be only given slight weight in favour of revocation.
The Respondent submits that with respect to impact on Australian business interests that there is no evidence that the Applicant's removal would compromise the delivery of a major project or the delivery of an important service in Australia and that this consideration should be afforded neutral weight.
Overall, the Respondent contends that the Tribunal should find that primary considerations 1and 5 weigh significantly against revocation of the cancellation of the Applicant's visa. The Respondent places emphasis on the fact that the safety of the Australian community is the highest priority of the Australian government and further to this that non-citizens who engage in criminal conduct should expect to forfeit the privilege of remaining in Australia. The Respondent contends that having regard to Direction 110 that there is not another reason available to the Tribunal to revoke the cancellation of the Applicant's visa.

The Tribunal conducted a review hearing on 7 and 8 January 2026. The Applicant appeared via video conferencing facilities. The Applicant was not represented. The Minister was represented by Mills Oakley Solicitors who instructed Dr Michael Taylor of counsel. The Applicant was assisted by a Burmese interpreter.
At the outset of the review hearing the Tribunal explained the process of merits review, the respective issue in the review and how the hearing would be conducted. As the Applicant was not represented the Ministers representative agreed it would be appropriate for the Tribunal to take the Applicant though his evidence.
The Applicant confirmed that he was born in Myanmar in 1994 and that he was ethnic Chin.
The Tribunal enquired how the Applicant was able to obtain a Subclass 200 visa. The Applicant described life in Myanmar as being very difficult and that he escaped to Malaysia. The Applicant stated that he resided in Malaysia for a period of three years and that he held a United Nations card for one year and was eventually granted the visa to Australia in 2015. The Tribunal enquired of the Applicant about his understanding of the Subclass 200 visa. He advised that it was a special visa for refugees allowing them to migrate to Australia on a permanent basis.
The Tribunal asked the Applicant what support he derived from the Australian Government at the time of his arrival in July 2015. The Applicant stated that he received Centrelink benefits, he was provided with clothing and furniture and described that he was looked after very well.
The Tribunal asked the Applicant about his siblings. He advised that he had one older brother and one older sister who resided in Deer Park Victoria. He advised that his siblings also obtained Subclass 200 visas with his brother arriving in 2014 followed by the Applicant and his sister in 2015. The Tribunal asked the Applicant whether his siblings had taken out citizenship. He advised that they had not. The Tribunal asked the Applicant whether he had explored taking out citizenship. The Applicant stated that he wanted to apply, however language barriers caused a delay in doing so. The Applicant stated that at the time of his offending he was close to making an application for citizenship.
The Applicant confirmed that he had worked as a bricklayer, undertaking an apprenticeship, and that he studied bricklaying at technical college. The Applicant stated that he was just about to obtain his qualifications when he was sent to prison.
The Applicant advised that he was single and that he had no children.
The Tribunal asked the Applicant whether he had struggled with drugs or alcohol during the period that he had lived in Australia. The Applicant stated that had been an alcoholic. He would drink every day and got into trouble and went down the wrong path. The Applicant explained that he started drinking in Myanmar as a teenager and that he had an older friend in Myanmar that he drank with. The Applicant stated that his drinking continued in Malaysia. The Applicant stated that once he obtained work in Australian and was earning money, he became a very heavy drinker. The Applicant stated that his drink of choice was beer in the summer and Jack Daniels in the winter. The Applicant advised that he did not drink when he attended church or when he went to technical college or indeed when he went to work apart from one can of beer on one occasion.
The Tribunal noting the Applicant's arrival in July 2015 asked when he linked in with the church in Victoria and he advised as soon as he arrived, he connected with the Mara Church. The Tribunal asked the Applicant whether there was anybody in the church community that he could speak to about his alcoholism or whether he had a medical practitioner that he could talk to about his alcoholism. The Applicant stated that he had never seen a doctor with respect to his alcohol issue, but he had spoken with the Pastor of his local church. The Applicant stated that his Pastor would counsel him when he had been in a fight or argument with other people. The Tribunal asked the Applicant how often he would get into a fight or argument with other people. The Applicant stated that he did not engage in physical fights just arguments.
The Tribunal asked the Applicant about his intimate relationship history in Australia. The Applicant stated that he had one relationship with a woman of Burmese ethnicity. The relationship began in 2018. The Applicant stated that he proposed to his former partner, but he never received an answer, and that the relationship came to an end around 2021 or 2022. The Applicant stated that the relationship ended because his former partner advised him that she loved him as a friend/brother. The Applicant stated that the rejection made him sad, and he ended up drinking more. The Tribunal asked the Applicant whether his alcohol abuse was a factor in the breakdown of that relationship. The Applicant stated it could have been, but he was not sure.
The Tribunal asked the Applicant about his education history. The Applicant stated that he only completed his education to grade 8 in Myanmar. The Applicant stated that when he left school he could read and write to a certain degree but could fluently speak Burmese because it was his national language.
The Tribunal noting the Applicant arrived in 2015 asked when he started frequenting brothels. The Applicant stated this was possibly around 2017 that he could not remember the exact time and that he did not go often. The Applicant confirmed that he only went to the one place in Sunshine North in Victoria and that he could not remember the name of the place and that his friends initially took him there. The Tribunal asked the Applicant whether he would see one escort on a regular basis or different escorts. The Applicant stated that when he entered the brothel the escorts would introduce themselves and the manager would ask the Applicant which escort he wanted.
The Tribunal asked the Applicant whether it was a fair assessment that he had been heavily drinking from the time that he arrived in Australia up until the time of his arrest in 2022. The Applicant stated that this was right, that he was not able to drink in jail and that he craved alcohol in jail but there was no alcohol available. The Tribunal asked whether alcohol was available in immigration detention. The Applicant stated that he had made a decision not to drink alcohol any longer. The Applicant stated that he had been attending church services during his imprisonment. The Tribunal enquired whether alcohol was available in immigration detention, and he advised that it was not.
The Tribunal noted that the material before it indicated that he had been found with contraband in his cell whilst in prison namely a homebrew, the Tribunal asked the Applicant what that incident was about. The Applicant stated that when he was sent to jail alcohol was not available and he was craving alcohol, and he ended up getting alcohol from a friend in prison. The Tribunal asked the Applicant whether his deep-seated addiction to alcohol meant that he would risk engaging in this behaviour in a prison environment. The Applicant stated this was right, that his system was craving alcohol, and he ended up trying to access alcohol in a cunning way.
The Tribunal noting the Applicant's evidence that he started consuming alcohol as a teenager in Myanmar, had continued to drink for three years in Malaysia, and had drunk in Australia from 2015 until the time of his imprisonment suggested there had been no opportunity for him to live in the community alcohol free. The Applicant stated that because of alcohol he ended up in jail. The Applicant stated that he had come to understand the consequences of being a drunk. The Applicant stated that he had gone four years without alcohol. The Applicant stated he had attended various training and education courses that addressed alcohol abuse and stated that if he went back into the community he would not drink alcohol.
The Tribunal asked the Applicant what made him so sure about that. The Applicant stated because he had experienced the consequences of alcohol that he will do his best not to repeat the same mistake and that he did not want to go back to prison.
The Tribunal noted that the Applicant had an older brother and an older sister in Australia and asked the Applicant what they thought about his current predicament with respect to the cancellation of his visa. The Applicant stated that there was not much they could do. The Applicant stated that he was in a dark place and there was not much anyone could do to help him. The Applicant stated that he needed to rely on the outcome of the Tribunal review.
The Tribunal noted the Applicant claimed to have a fear of returning to Myanmar and asked him what that was based on. The Applicant stated that he escaped to Malaysia. The Applicant stated that people in Myanmar were forced into labour and that if you did not comply you had to serve in the military. The Applicant also stated that there was a civil war happening in Myanmar. The Tribunal noted that all the citizens of Myanmar would be impacted by the civil war. The Applicant stated that Burmese citizens were protesting against the military coup, and as a result the soldiers were killing innocent citizens.
The Applicant was questioned by Mr Taylor.
Mr Taylor asked the Applicant whether he received any assistance with respect to English-language classes when he arrived in Australia. The Applicant stated that he completed 510 hours of English-language classes.
Mr Taylor asked the Applicant when he was released from prison. The Applicant advised on 8 August 2025. Mr Taylor asked the Applicant whether he was given parole when his sentence came to an end. The Applicant advised that he applied for parole, however it was not approved and that he applied a second time for parole, and it was again rejected. The Applicant confirmed that he had never been approved for parole from prison and when his sentence came to an end, he was transferred into immigration detention. The Applicant confirmed this that he worked in the prison making meat pies, pasties and lasagne and that he also worked in the bakery and that he had undertaken a number of food safety courses. The Applicant also gave evidence with respect to his work as a bricklayer, he advised that he had also worked for an organisation called Tasty Chips. The Applicant had also worked in a chicken processing plant. The Applicant advised that he was sacked from both these positions. The Applicant then moved on to his bricklaying position and associated study.
Mr Taylor advised that he wanted to ask the Applicant about a number of incidents that occurred during his term of imprisonment. The first incident was the homebrew incident where the Applicant in his responses to questions of the Tribunal advised that he was craving alcohol and obtained homebrew from a friend. The Applicant confirmed that this was the case, and that the homebrew was similar to alcohol. Mr Taylor asked the Applicant when the prison officer found the homebrew whether he advised the officer it was for him and the Applicant stated 'yes'. Mr Taylor referred to page 154 of the hearing book which was a description of the incident. The incident record indicated that the Applicant advised that the homebrew had been used to clean the kettle and that this was a different reason that he told the Tribunal. The Applicant stated that he lied back then, so things would not escalate, the Applicant stated that he was scared to advise it was alcohol. Mr Taylor put to the Applicant that he lied to a prison officer to avoid getting into trouble about the homebrew and the Applicant stated, 'that is right'.
Mr Taylor referred to an incident described at page 129 of the hearing book namely an altercation between the Applicant and another prisoner where the Applicant sustained an injury to his eye, nose and chin and the other person sustained a black eye. The Applicant advised that he remembered the incident found at page 130 of the hearing book which indicated that the Applicant had verbally abused another prisoner. Mr Taylor asked why this was the case. The Applicant stated there was conflict over access to a single cell in a prison cottage and that the Applicant was only offered a double cell and that he became upset about that. The Applicant stated that the fellow inmate goaded him about not cleaning the toilet in the cell and for urinating on the floor. As a consequence, an altercation occurred. The Applicant stated that he was sad, angry and upset.
Mr Taylor referred to page 139 of the hearing book an incident that occurred on 17 September 2023 in prison at which time contraband was found in the Applicant's cell. The contraband was described as a piece of wood approximately 10 cm long with both ends sharpened into a point along with some razor blades that had been extracted from a pencil sharpener. The Applicant stated that the pieces of wood were used to make a cross. The Applicant stated that the blades were used for art and craft purposes. The Applicant stated that he would use these materials to make flowers and other art and craft. The Applicant stated that he did not have any intention to make trouble with the blades with other prisoners. Mr Taylor asked the Applicant why he would hide the blades in his cell. The Applicant stated that he knew you could not have a blade in a cell in your possession and the Applicant stated that he used the blade to cut canvas.
The Tribunal asked the Applicant why he would have a blade in his cell when he knew that he was not allowed to do so irrespective of the blade being in plain sight or hidden. The Applicant stated that prisoners were allowed to use a pencil sharpener in prison and that he used the pencil sharpener to extract the blades. The Tribunal noted that it should have been self-evident to the Applicant that having a sharpened 10 cm stick with a blade attached to it in prison could be used against other prisoners. The Applicant stated that he had no intention to use it in that way. The Tribunal noted that this incident appeared to be indicative of a lack of judgement, given that the Applicant knew the blade in prison was unlawful. The Applicant reiterated that his use of the blade was to cut canvas and that he was able to obtain canvas from an Indigenous prisoner.
Mr Taylor referred to page 144 of the hearing book another incident that occurred in prison where the Applicant reported a minor physical altercation in his prison cottage. The Applicant stated that a fellow inmate was disrespectful towards him and an altercation ensued and the Applicant suffered a bruise to his eye. The Applicant stated that a senior prison officer spotted the injury and took him to medical staff who looked at the injury. Mr Taylor noted that the description of the incident at page 144 of the hearing book stated that there were no injuries recorded. The Applicant stated that it was just a little wound. The Applicant stated that the other prisoner was not injured.
Mr Taylor asked the Applicant whether any of the classes and sessions that he had undertaken in prison pertained to anger management. The Applicant stated that there was a peace program that he attended in prison and that he struggled to understand some of the content of the program and development sessions. The Applicant also advised that he attended the Atlas Program in prison along with the Healthy Relationships program which gave guidance on how to communicate with people, how to foster good respectful relationships and communicate effectively and to be of good behaviour. Mr Taylor asked the Applicant why he undertook a course on family violence. The Applicant stated that he took these programs because he believed they were teaching something beneficial and that he could not remember the course on family violence.
Mr Taylor took the Applicant to his offending history and asked him questions with respect to the arson offence.
Mr Taylor noted that the name of the brothel that the Applicant attended was called Rainbow Dolls. Mr Taylor referred to page 350 of the hearing book noting that the Applicant claimed to have committed the arson due to alcohol consumption and grief and distress over the death of a cousin. The Applicant stated that that was correct he was very sad and was going through grief and a friend took him out to have a drink so that he could feel better and that after drinking they went to the brothel. The Applicant was asked about his cousin. The Applicant stated that his cousin died as a consequence of alcohol abuse. He advised that he died around March 2022. He advised his cousin lived in Malaysia. The Applicant stated that the last time that he saw this cousin was in 2012, and the last time he spoke to his cousin was around 2022. He advised that his cousin was his mother's older sister's son. Mr Taylor noted that this account of the death differed to that described at page 65 of the hearing book in which the Applicant describes his distress as a result of the death of a friend overseas who had died. The Applicant stated that the document at page 65 had been completed on his behalf by friend in prison with respect to his request for revocation of the cancellation of his visa.
On the night of the arson the Applicant stated that he attended the brothel and was introduced to some girls at the brothel and that he chose one of the escorts who was not available. The Applicant advised that he became agitated and left and went to a petrol station. The Applicant stated had started drinking at about 8pm that night and attended the brothel at around 11pm.
The Tribunal asked the Applicant whether he drove to the brothel after drinking for three hours and he advised that he did. The Tribunal asked the Applicant whether he drove to the petrol station to purchase the jerry can, petrol and other items and he advised that he did. The Applicant confirmed that after he arrived at the petrol station that he filled the jerry can and purchased a lighter. The Tribunal noted that the evidence before it provided by the Applicant indicated that the arson offence had occurred as a consequence of two factors excessive drinking, and grief, and that the combination of these factors had led to the commission of the offence.
The Tribunal noted that the evidence at hearing indicated that the Applicant had made a number of conscious decisions on the night of the arson offence. Firstly, the Applicant made a conscious decision to drink alcohol for a period of three hours. The Applicant then made a conscious decision to drive to a brothel whilst intoxicated in an attempt to engage the services of an escort. When these services were not made available to the Applicant, he made a conscious decision to drive to a petrol station, to fill a 10 litre jerry can with petrol and to purchase a lighter. The Tribunal noted that this was indicative of a number of conscious decisions and appeared to negate the Applicant's claims of being grossly impacted by alcohol. The Applicant was invited to comment on this. The Applicant stated that he admitted it was reflective of very poor judgement. The Applicant stated that alcohol was the trigger to his poor judgement. The Applicant stated that in the past 10 years in Australia that this was the only incident that had occurred.
Mr Taylor noted the Applicant's evidence that when he was refused service at the brothel he became angry and agitated and asked whether this was the first time this had occurred. The Applicant stated it was the first time and that he was shocked at what he did. The Applicant claimed that he must have been possessed by 'evil Satan'. The Applicant stated that prior to the arson incident he had never been asked to leave Rainbow Dolls and this was the only time he had been turned away.
Mr Taylor took the Applicant to page 287 of the hearing book. This document was from the Director of Public Prosecutions with respect to the Applicant's offending. The police evidence indicated that this was not the first time that the Applicant had been turned away from the brothel. The Applicant stated that he disagreed, and this was the only time that he had been turned away. Mr Taylor asked the Applicant whether he had access to a Burmese interpreter for the police interview and he advised that he did.
The Applicant was asked where he was residing at the time of the offending and he advised with his aunty in Deer Park Victoria the Applicant was asked how far it was to drive from Deer Park to Sunshine North, and the Applicant stated between 10 and 20 minutes. Mr Taylor noted that the car that the Applicant drove was a Toyota Hi Lux and the Applicant stated this was correct, it was his vehicle used to work in the construction sector. The Applicant stated that the petrol station was around 3 to 4 minutes' drive from the brothel.
Mr Taylor made reference to page 285 of the hearing book namely the Applicant's police interview which indicates that when the Applicant arrived at the petrol station that he purchased a 10-litre jerry can, a legionnaires hat, unleaded fuel and a lighter. Mr Taylor asked the Applicant why he purchased the hat. The Applicant stated so people would not recognise his face. Mr Taylor noted that the Applicant at the time of the arson offending had white gloves on and wore a face mask. The Applicant advised that he purchased the gloves from the service station and that he believed they were rubber gloves. Mr Taylor asked the Applicant why he needed to wear gloves at the time of the arson offending and the Applicant stated so people would not know that it was him that committed the offence. Mr Taylor asked the Applicant why gloves would make a difference to that. The Applicant stated that he purchased protective equipment to protect him and stop people recognising him. Mr Taylor asked the Applicant whether he meant not leaving fingerprints. The Applicant stated 'that would be the case' that he did not want to leave any evidence and that he also purchased a mask at the petrol station. Mr Taylor asked the Applicant why he needed to wear a face mask and once again the Applicant stated so people would not recognise him.
Mr Taylor confirmed with the Applicant that the time of the offending he wore a legionnaires hat, gloves and a surgical mask, and the Applicant confirmed that this was the case. Mr Taylor asked the Applicant where he poured the petrol, and the Applicant stated that when he returned to the brothel the door was not locked, so he entered the brothel and poured the petrol near the front door, lit it and then ran off.
Mr Taylor asked the Applicant whether he was aware that his actions were recorded on CCTV footage by the brothel. The Applicant stated that he was aware of this as he was shown the footage at court.
Mr Taylor asked the Applicant whether he believed the brothel was still open for business when he committed the arson offence. The Applicant stated that it was still operating for the day. Mr Taylor noted that the Applicant in his police account of the offending stated that he believed that there were no people at the brothel when he committed the offence. Mr Taylor noted that this contradicted earlier evidence where the Applicant stated that he believed that the brothel was open for business.
The Tribunal made reference to the police account which indicated that the Applicant attended the brothel at 11:08pm and returned to light the fire at 11:35pm. The Tribunal noted that it was difficult to accept that in the 27 minutes between that time that the premises had been closed for the night, especially given the fact that lights were on, and the door to the premises were open. The Applicant was invited to comment on this. The Applicant stated, "it might have been open at that point, I thought it was closed, the door was open, I have served my time in jail, I am sorry that it happened, I confess I am a sinful person".
On the second day of the hearing the Applicant was asked further questions with respect to the arson offending. Noting that the Applicant arrived at the brothel just after 11pm, Mr Taylor asked the Applicant how long it took to be shown the girls at the brothel and to select one. The Applicant stated it could have been 30 minutes. The Applicant was asked how long he would book a service for, and he advised usually half an hour. Mr Taylor noted that the evidence indicated that the Applicant arrived at the brothel at 11:08pm, that it took half an hour to select an escort and that he would have paid for half an hour so had the Applicant been given access to an escort the service would have run past midnight. The Applicant confirmed this would have been the case. Mr Taylor noted that at the previous day of hearing the Applicant said he did not think the premises were open because it was almost midnight. The Applicant stated "my actions were not premeditated I did not keep track of time I just did it"
The Applicant was asked how much damage the arson caused to Rainbow Dolls. The Applicant stated that he did not know how much of the property was damaged but was shown evidence of the damage at his County Court proceedings. The Applicant conceded there was damage to both the outside and inside of the building.
The Applicant also gave evidence that he attended the brothel with a friend, and that they entered the building together and went into separate rooms. The Applicant stated that his friend had nothing to do with the arson offence. Mr Taylor noted that if the Applicant's friend had selected an escort, that he would have been at the brothel when the Applicant set the premises on fire. The Applicant stated, "yes that is right".
Mr Taylor asked the Applicant about the child abuse offence. Mr Taylor made reference to pages 048-049 of the hearing book which was a record of orders made in the criminal jurisdiction of the County Court of Victoria and provided evidence of property seized from the Applicant during the police investigation. Page 48 noted that an item seized from the Applicant were Ray Ban Stories glasses with an inbuilt camera along with an Apple iPhone and two Samsung mobile phones. The Applicant confirmed that these were his possessions. He advised that the two Samsung phones were not in use and only the Apple iPhone was in use. The Applicant was questioned about the Ray Ban Stories sunglasses. He advised that they were sunglasses where the lens would change colours.
The Tribunal asked the Applicant whether he could use the glasses as a camera to take photos. The Applicant stated that you could use the glasses to take videos or pictures. The Applicant stated however that he purchased them because the lenses change colour.
Page 49 of the hearing book made reference to 2 exhibits seized from the Applicant, exhibits 14 and 15. These were spy cameras. The Applicant was asked about these items along with a large number of SD cards that were seized from him. The Applicant stated that he collected SD cards and spy cameras.
The Applicant was asked what he used the spy cameras for, and he advised that he had the spy cameras but did not use them. The Applicant was asked if he did not use spy cameras why he would have two spy cameras in his possession. Once again, the Applicant stated that he owned them, but he did not use them. The Applicant was asked to describe the spy cameras. The Applicant stated they "may be small, I don't know, I don't remember". The Applicant confirmed however that they were in his possession. The Applicant again stated that he never used the spy cameras. The Applicant was asked why he would purchase something that he had no need for. The Applicant stated that he purchased the spy cameras but never used them because he thought it was inappropriate. The Applicant stated that he purchased them separately. Mr Taylor noted that the Applicant purchased the spy cameras separately, however, claims to have never used the first camera. The Applicant then stated that he thought that he purchased them while he also purchased the sunglasses. The Applicant stated that he made the purchases on eBay. The Applicant added that he did use the camera in the glasses. Mr Taylor noted that the Applicant's earlier evidence was that he did not use the camera in the sunglasses and purchased them for the different coloured lenses. The Applicant agreed.
The Applicant was asked about the child abuse material in his possession, and he confirmed that it consisted of both photographs and videos. The Applicant stated that he received this material through a group chat called Telegram. The Applicant stated he did not know how he was added to this chat group but possibly it was through one of his friends. The Applicant stated that he did not request to be added to the group. The Applicant stated that as soon as he was added to the group that lots of photos appeared on his phone that was later confiscated by the police who saw the content of the material.
The Applicant confirmed that he had used the Telegram app previously for good purposes and that it just so happened that he was added to the child abuse material group. The Applicant claimed that he was added to this group in around 2021 or 2022 just before he was arrested. The Applicant claims that he was viewing the material for around 3 to 4 months before his arrest. The Applicant claims that he was not invited to join the group and he was not given an option to join but was just automatically added. It was noted that in the Telegram app there is an option to delete messages and other content and the Applicant confirmed that this was the case but there were so many messages and photos to be deleted that he was unable to delete all of the messages and photos.
The Applicant was taken to page 294 of the hearing book. This related to the Applicant's police record of interview on 23 March 2022 conducted with a Burmese interpreter with respect to the child abuse offending. In that interview the Applicant stated that he had downloaded a video from Google. Mr Taylor noted that this contradicted the Applicant's evidence that he only viewed child abuse material through the Telegram app. The Applicant was invited to comment. The Applicant stated that "what I told the police, and the record of interview was not correct" He added that in Myanmar we are scared of the police and that is why I lied".
Mr Taylor took the Applicant to his statement at page 352 of the hearing book. At paragraph 12 of the statement the Applicant stated that "I realise that being part of that group was part of being in the darkness as an alcoholic and had very serious consequences". Mr Taylor asked the Applicant whether being in this group chat was attributable to alcohol. The Applicant stated that he believed it was attributable to alcohol because he was not thinking clearly. Often when he was drunk, he would access the group chat. He advised that he did not access the app during the day and would look at it at night.
The Applicant was asked about his use of alcohol and drugs. The Applicant was taken to page 128 of the hearing book, an incident dated 26 September 2015, noting that the Applicant was found unconscious in a van and stated that he had been drinking and smoking an unknown drug. Aside from alcohol the Applicant was asked what other substances he had used in the past. The Applicant stated that he had used marijuana only once and that he drank alcohol.
The Applicant was asked about his siblings. He stated that his sister was married with three children whose ages were approximately 4, 7 and 10 and that his brother had two children aged 20 and 18 and a 17 year old child had passed away. The Applicant was asked about the last contact he had with his sister, and he stated it was just before he was sent to jail in March 2022. The Applicant was asked about the last contact he had with his brother, and he advised that he had some communication with his brother whilst he was imprisoned.
The Applicant stated he had no contact with his sister since March 2022. When asked whether his sister knew he was imprisoned, he advised that he believed that she did and that she was probably angry with him. The Applicant stated that his older brother knew the reason that he was imprisoned. He knew about the arson and child abuse material offending. The Applicant stated that the last contact he had with his brother was around October or November 2025. The Applicant stated that his brother was aware of his visa cancellation and that he had approached his brother for money to assist with legal representation, however, his brother was not able to afford to provide financial assistance. The Applicant stated that as a consequence, he became upset and advised his brother that he would attempt to get Legal Aid. The Applicant stated that since his brother refused to provide assistance with a private lawyer that he had not spoken to him.
The Tribunal asked the Applicant what happened with his Legal Aid application. The Applicant stated that he approached Legal Aid to help him and Refugee Legal provided him with assistance in the preparation of his declaration.
The Applicant was asked whether he had approached his brother to provide a letter of support with respect to the Tribunal proceedings. The Applicant stated that he had not spoken to him since he asked for money for legal assistance. He advised that his brother had not provided him with any documents. He advised that he was reliant on the documents provided by the Mara Church on his behalf. Discussion was had with respect to the two letters provided by the Mara Church. The Applicant stated that Reverend Bik and Mr Chozah knew about his offending.
Mr Taylor noted based on the Applicant's evidence to the Tribunal at hearing that he had lied to prison officers about the homebrew to avoid getting into trouble. That he had lied to police about sources of some of the child abuse material to avoid them looking further. Mr Taylor submitted that because of this evidence the Tribunal should doubt what the Applicant had to say about other matters. Especially with regard to what the Applicant says about not committing offences into the future. The Applicant was asked to comment on this. The Applicant stated, "I have nothing to say, everything is my fault and I'm really sorry".
In closing submissions, it was conceded by Mr Taylor that the inconsistencies about the identity of the person who died leading to the Applicant drinking heavily and attending the brothel on the night of the arson, variously described as a cousin, brother or friend appeared to be a language issue or translation issue. Mr Taylor also submitted that the weight that could be given to the respective rehabilitation courses and other courses that the Applicant had engaged with in prison was tempered by the fact that they were all delivered in English.
Mr Taylor stated that the Respondent was reliant on its a statement of facts, issues and contentions. The Respondent was also reliant on the Parole Suitability Assessment located at page 238 of the hearing book, along with the two prosecution summaries with respect to the arson offending and child abuse offending located at pages 284 and 291 of the hearing book.
Mr Taylor made reference to the Applicant's evidence around his alcohol use and the arson offending.
It was noted that the Applicant drove to the brothel from his residence in Deer Park a journey of approximately 10 to 20 minutes to the Rainbow Dolls brothel. The Applicant when refused service at the brothel then drove for 2 to 4 minutes to a petrol station and returned to the brothel. At the petrol station the Applicant purchased a number of items including a jerry can, petrol, a lighter, a legionnaires hat, a surgical mask and gloves. The Applicant purchased these items to avoid being identified with respect to his offending. The Respondent conceded that it was possible that the Applicant had been drinking heavily but was able to engage in a number of conscious decisions with respect to his offending behaviour. Mr Taylor noted that the Applicant relied on alcohol as an explanation for his offending and that through his abstinence as a result of imprisonment and immigration detention that he claimed his alcohol abuse will not occur in the future.
Mr Taylor noted that in terms of the Applicant's intoxication at the time of the arson offending that Judge Allen in the County Court at page 42 of the hearing noted that the Applicant was probably intoxicated and probably emotionally distressed.
Reference was made to the report dated 14 July 2023 by Dr Laura Dalzell, a psychiatrist at page 242 of the hearing book who noted that the Applicant "made a link between alcohol intoxication and his fire setting and said he wants to stop drinking" further that if the Applicant was to be granted parole that it was recommended that he be subject to an alcohol abstinence condition and monitoring in the community.
Mr Taylor made reference to the Tribunal's questioning of the Applicant on day one of the hearing noting that the Applicant's arson offending seemed to be based on conscious decision-making at every part of the arson offending. Mr Taylor suggested that the Applicant's offending appeared to have been driven more by anger management issues rather than the consumption of alcohol.
Mr Taylor noted that the Applicant's long-term addiction to alcohol and his claim to abstain from drinking if he was released into the community remained to be tested in a community environment and that his abstinence had only been affected by his imprisonment and immigration detention.
Mr Taylor noted there had been two separate applications to the Parole Authority of Victoria, both of which had been refused.
Mr Taylor noted inconsistencies in the Applicant's evidence throughout the hearing impugning the Applicant's overall credibility. Mr Taylor had referred to these credibility issues such as lying about the homebrew to prison officers and lying to police about the source of child abuse material. Mr Taylor also noted inconsistencies in evidence at hearing and previous evidence with respect to the Applicant's criminal proceedings. Mr Taylor also noted the Applicant's evasiveness and changing answers over the course of the hearing with respect to the Ray Ban camera glasses and the spy cameras and with respect to the opening hours of the brothel.
Mr Taylor stated that the evidence indicated that the Applicant's criminal offending with respect to Direction 110 should be viewed very seriously.
The arson offending indicated that the Applicant made significant attempts to avoid the potential legal consequences arising from that conduct.
The Minister's position was that there was a real risk of the Applicant engaging in future offending, and that having regard to Primary consideration 1 that this consideration weighed heavily against revocation.
It was conceded that Primary consideration 2 did not apply in this case.
Having regard to Primary consideration 3 it was noted that the Applicant had spent less than 10 years living in the Australian community prior to his imprisonment and that limited weight should be given to this consideration.
It was conceded that Primary consideration 4 did not apply in this case.
With respect to Primary consideration 5 the Minister relied on the statement of facts, issues and contentions noting that this consideration weighed heavily against the revocation of the Applicant's visa.
Having regard to other considerations Mr Taylor addressed the legal consequences of the decision. Reliance was made on the submissions in the Ministers statement of facts issues and contentions. Mr Taylor noted that the direct and immediate legal consequence of affirming the decision under review is that the Applicant would be without a visa, however, it was open to him to seek an appeal of the review decision and open to the Applicant to make an application for a protection visa so any claims for protection could be tested.
Having regard to the extent of impediments if the Applicant was removed, the Applicant had been engaged in a range of occupations in Australia most extensively as a bricklayer and hence his employability was broad.
Having regard to the impact on an Australian business, it was conceded that this other consideration was not relevant.
The Applicant was given an opportunity to make final comments to the Tribunal. The Applicant stated "I am a bad person, please give me a second chance to rebuild my life and be a good person. Please allow me to live in Australia again. If I return to my village in Myanmar, I am worried about my life. If I am sent to another country, I would know nobody in that country. Please let me continue to live in Australia".

The issues for determination before the Tribunal are:

whether the Applicant passes the character test for the purposes of s 501 of the Migration Act, as defined in s 501(6); and

(b) if not, whether there is another reason why the original cancellation decision should be revoked.

The Applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a 'substantial criminal record' as defined under s 501(7). It follows that the Applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
Section 501CA(4)(b)(ii) of the Migration Act requires the Tribunal to be satisfied that there is another reason why the original decision should be revoked.
Direction 110 sets out the principles which provide a framework "within which decision makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA". These are outlined as follows.

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community. > > (2) The safety of the Australian Community is the highest priority of the Australian Government. > > (3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia. > > (4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. > > (5) Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. > > (6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. > > (7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. > > (8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

Thus, the question in issue is whether there is another reason why the original cancellation decision should be revoked.
This involves giving appropriate weight to the considerations in Ministerial Direction 110 (both primary and other), requiring the Tribunal to examine factors for and against revoking the visa cancellation, and assessing and evaluating those factors to form a view as to whether the cancellation should be revoked.3
Direction 110 sets out Primary Considerations and Other Considerations. These are addressed under their respective headings below.

The Direction states that Primary consideration 8.1 (protection of the Australian community) is generally to be given greater weight than other primary considerations.
8.1. Protection of the Australian community.

(1) When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

(2) Decision-makers should also give consideration to:

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

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

The Nature and Seriousness of the Applicant's Conduct to Date

When assessing the nature and seriousness of a non-citizen's criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, which the Tribunal will now address.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that, without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent and/or sexual nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The Applicant's criminal history in Australia commenced in 2022 and related to the offence of arson as described in the sentencing comments of Judge Allen and the offence of the possession of child abuse material which was found on the Applicant's electronic devices by Victorian police.
There is no doubt that arson is a very serious offence as it can lead to injury, the loss of life and the loss of property. Fortunately for the Applicant in this case, the manager of the premises and Victorian fire fighters were able to extinguish the blaze set by the Applicant before it went on to cause greater loss and injury or possibly death to other persons.
There is no doubt that the Applicant's possession of child abuse material, despite it not being extensive in terms of the number of files on his devices, was material that Judge Allen referred to as both horrifying and appalling.
The Direction is clear that crimes of a sexual nature against children, of which the possession of child abuse falls, is offending that is viewed very seriously by the Australian Government and the Australian community.
Direction 110, 8.1.1(1)(a) refers to consideration of the nature and seriousness of the criminal offending engaged in by the non-citizen and references the fact that violent and or sexual crimes, crimes of a violent or sexual nature against women or children, and acts of family violence regardless of the sentence imposed are viewed very seriously by the Australian Government and the Australian community. The Direction does not limit the range of conduct that may be considered to be very serious.
The Tribunal finds that the nature and seriousness of the Applicant's offending is reflected by the fact that he was sentenced to a 3-and-a-half-year term of imprisonment which is the last resort in the sentencing hierarchy.
8.1.1(1)(b) states that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described in this part of the Direction are considered by the Australian Government and the Australian community to be serious.
There is no evidence that the Applicant has caused a person to enter into or to be a party to a forced marriage.
There is no evidence that the Applicant has committed crimes against government representatives or officials due to the positions that they hold.
Having regard to any conduct that forms the basis for finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-makers opinion (for example, section 501(6)(c)). The Tribunal finds having regard to the Applicant's 2022 criminal conduct that he is not of good character.
The Applicant's history in prison has not been uneventful. The Applicant was found to have home brew in his cell in December 2022 and his account with respect to this has differed at various points of time. The evidence indicates that the Applicant even after spending a number of months in prison, an environment in which alcohol was not available, was craving alcohol to such an extent that he accessed home brew to deal with those cravings.
The Applicant had also been involved in a violent altercation with another prisoner leading to both the Applicant and the other prisoner sustaining injuries that required medical assessment.
The evidence indicates that the Applicant had undertaken courses to assist him in addressing his alcohol abuse and other self-help courses that were available to him. He has also expressed a willingness to engage in a sex-offenders program.
With respect to 8.1.1(1)(c) the Applicant has been the subject of a full-time custodial sentence for his offending behaviour. The full-time custodial sentence in the view of the Tribunal is indicative of the seriousness in which the Applicant's offending behaviour was viewed by the County Court of Victoria.
With respect to 8.1.1(1)(d) there is evidence before the Tribunal of the impact of the Applicant's offending on the victims of his offending. In the material from the Department of Public Prosecutions in Victoria at page 286 of the hearing book there is reference to persons impacted by the arson offence at the Rainbow Dolls brothel. At paragraph 16 of that document, "one of the persons present in the building was coughing because of smoke. That person also stated they were scared and worried they wouldn't get out of the building'. At 17 'another person present stated that they were very frightened".
With respect to 8.1.1(1)(e) the frequency of the non-citizens offending and/or whether there is any trend of increasing seriousness the Tribunal finds as follows. The evidence indicates that the Applicant's offending is confined to his offending behaviour in March 2022.
With respect to 8.1.1(1)(f) the Tribunal finds that there is no evidence of a cumulative effect of repeat offending by the Applicant as his offending behaviour was confined to his 2022 offending.
With respect to 8.1.1(1)(g) there is no evidence that the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
With respect to 8.1.1(1)(h) the evidence before the Tribunal indicates that the Applicant has never been formally warned in writing about the consequences of further offending in terms of his migration status.
Having regard to 8.1.1(i) the evidence indicates that the Applicant has no criminal antecedents outside Australia.
The Tribunal finds that the factors in 8.1.1 of the Direction that can be weighed in the Applicant's favour are outweighed by the factors that weigh against him.
The sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against the revocation of the cancellation of the Applicant's visa.

The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

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

(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. > > (2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively: > > the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and > > the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account: > > information and evidence on the risk of the non-citizen re-offending; and > > 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). > > 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.

The Tribunal has referred to the sentencing comments in the County Court of Victoria of Judge Allen.
Judge Allen based on the material before him at the time of sentencing assessed that the Applicant had "demonstrated good prospects of rehabilitation whilst you have been in gaol for the last nine months. You have engaged in programs and courses, not only in English language and other courses, but especially in relation to your alcohol abuse problem in order to deal with that".
Judge Allen went on to find that "you have good prospects of rehabilitation, bearing in mind the matters I have enumerated, the absence of priors, your conduct since you have been in custody, the ongoing support you have in the community and your family, in particular your uncle, and what I have read in the psychiatric and psychological material. You are not a paedophile. You have acknowledged what you have done is wrong and you are determined to put things right in the future. I accept all of those matters and they auger well in terms of your prospects of rehabilitation".
The evidence before the Tribunal indicates that the Applicant consumed alcohol from a young age and the Applicant in his statement dated 24 November 2025 concedes that he was an alcoholic, commencing drinking in Myanmar as a 16-year-old, continuing drinking heavily during the three years that he resided in Malaysia and continuing unabated from the time of his arrival in Australia in July 2015 until the time of his arrest in March 2022. The evidence indicates that the Applicant struggled in his first few months of imprisonment to abstain from alcohol use and was found on 18 December 2022 to be in possession of home brew in his cell, which is indicative of the deep-seated nature of the Applicant's addiction to alcohol, given that he would risk using homebrew in a prison environment. The evidence indicates that the Applicant has not consumed alcohol during his period in immigration detention.
As discussed at the review hearing, since the age of 16, the Applicant has not resided in the community without resorting to the heavy use of alcohol. His abstinence from alcohol was forced and caused through imprisonment and immigration detention. Due to his incarceration, there has been no opportunity for the Applicant to demonstrate abstinence from alcohol in a community setting. Given his history of alcohol addiction, the Tribunal finds that there is a risk the Applicant may relapse.
The evidence indicates that when the Applicant has been faced with a difficult situation in life such as the breakdown of his relationship, that his default position has been alcohol abuse. To support this finding the Tribunal has had regard to the Parole Suitability Assessment undertaken by Corrections Victoria on 30 January 2025, and the associated assessments relied on for the purposes of that report. As discussed, the Applicant applied for parole on two separate occasions and parole was refused on both occasions. Parole authorities identified in their assessment that the Applicant required close oversight in the community through significant alcohol counselling supports due to his long history of alcohol abuse. Of note is an assessment conducted by Zoe Clark a clinician on 29 September 2024 at page 258 of the hearing bundle which indicates that the Applicant "demonstrates the attitude of an individual in the precontemplation stage of change, whereby he advises that he will struggle to limit his alcohol consumption when he returns to the community".
The Parole Suitability Assessment report dated 30 January 2025 also notes that the Applicant has a "substance use history, predominantly alcohol, which he commenced consuming on a regular basis at the age of 16. A link has been identified between substance use and offending".
The Applicant's time in prison has not been without incident. The evidence indicates that on 20 March 2023 the Applicant was involved in a violent incident with a fellow prisoner resulting in injuries to both the fellow prisoner and the Applicant, requiring medical assessment. On 17 September 2023 the Applicant was found to have what can only be described as make-shift weapons in his cell including two pieces of timber with sharpened ends and two wooden knives with a blade attached to the end. The Applicant advised that these were used for art and craft purposes. The Applicant's evidence indicates that he was aware that these items were contraband. The Applicant's evidence at hearing with respect to these items was inconsistent and lacked credibility.
Evidence before the Tribunal at page 126 of the supplementary tender bundle from Joanne Reynolds a forensic clinician (psychologist) dated 10 January 2025 notes that a number of dynamic risk factors had been identified as relevant to the Applicant's risk of recidivism that included "a history of problems with education and employment; history of trauma and instability as a refugee have made him more likely to become angry if he perceives that he has been taken advantage of or treated differently to others; the Applicant has now experienced using fire to manage anger and thus may be more likely to resort to similar behaviour in future unless he learns other appropriate coping skills; unmanaged life stresses such as relationship employment problems; and a link has been identified between substance use and offending. It is noted that Mr Hmo was intoxicated at the time of offending".
The evidence also indicates that Dr Dalzell in a forensic pre-sentence report dated 14 August 2023 for the Applicant's County Court proceedings found "Mr Hmo as low risk for sexual recidivism. Using the level of service/risk, need, responsivity (LS/RNR) 3 as a predictor of general criminal recidivism, Dr Laura Dalzell scored Mr Hmo's as in the medium range of risk and need, which relates to problems with education and employment, family/marital, and drug and alcohol problems".
The Applicant has claimed that he has the support of a cousin in the community, however to this end, the cousin was not called to give evidence at hearing. The evidence indicates that the Applicant is estranged from his older sister and largely estranged from his older brother. Their absence in the review proceedings in terms of the provision of testimony in support of the Applicant confirms this estrangement. The Applicant as a consequence does not have the support of his siblings in the event that he was released back into the community, and he lacks the protective factors provided by close familial support.
Judge Allen in his sentencing comments noted that the Applicant when interviewed by police with respect to his possession of child abuse material stated that "you admitted to the police that you had viewed the material. You said you liked to watch it. That was a pretty stark admission". The Applicant has made a frank admission of liking the child abuse material that he engaged with.
The evidence indicates that the Applicant has not to date completed a sex offenders course.
The Tribunal acknowledges that the Applicant would remain on the Sex Offenders Register for eight years, and that this provides some degree of protection.
The evidence before the Tribunal indicates that the Applicant's risk of recidivism with respect to the arson offending and the child abuse material offending has been identified as ranging between low and medium in the professional assessments before it.
Given the very serious nature of both the arson offending and the child abuse offending, the Tribunal finds that any risk, is too great a risk with respect to the government's overriding priority of protection of the Australian community.
The Tribunal finds that in circumstances where the crimes that the Applicant may commit in the future could cause physical, financial and psychological harm to the Australian community that overall, this consideration weighs very heavily against the revocation of the cancellation of the Applicant's visa.

Primary Consideration 1 weighs very heavily against a decision to revoke the cancellation.

There is no evidence before the Tribunal which indicates that the Applicant has engaged in family violence and hence this consideration is afforded neutral weight by the Tribunal.

Primary Consideration 2 is not relevant and accordingly is afforded neutral weight.

PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA

Having regard to this primary consideration Direction 110 states the following:

(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. > > (2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to: a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that: i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

The Tribunal must (8.3(1)) consider any impact of its decision on the Applicant's immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(2) of the Direction allows for the consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community.
The Applicant is single and has no minor children.
The evidence before the Tribunal indicates that the Applicant's brother and sister reside in Australia and that he has an uncle with whom he is close. The evidence as discussed indicates that the Applicant is estranged from his sister and has been since the commission of his offending, and that he is largely estranged from his brother with whom he has had no contact for a number of months.
The Tribunal notes that the Applicant has worked in Australia in the construction industry as a bricklayer, and that he had commenced, and was close to completing, an apprenticeship in bricklaying.
The Applicant also has a close association to his church the Mara Christian Church of Victoria who have provided two letters attesting to the Applicant's character.
When all of these factors are taken into account this consideration is given moderate weight in favour of revoking the cancellation of the Applicant's visa.

Primary Consideration 3 is given moderate weight in favour of revocation.

PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

The evidence indicates that the Applicant has never had children, and that this consideration is not relevant, and the Tribunal accordingly affords this consideration neutral weight.

Primary Consideration 4 should be given neutral weight.

PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

The Tribunal notes that Primary Consideration 5 of Direction 110 states the following.

(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: > > In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Applicant has breached this expectation through his criminal conduct. > > 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 measurable 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.

The Applicant states that he has taken proactive steps to address his alcohol problems that led to his offending and subsequent imprisonment. The Applicant notes that he had lived in Australia for 10 years and that he has a fear of persecution if he were returned to Myanmar.
The Respondent contends that the Applicant does not meet the Australian community's expectations that he would obey the laws of this country, and that community expectation would be that his visa should remain cancelled.
The Respondent contends that this consideration weighs heavily in favour of non-revocation. The Minister's position is that the Applicant through his offending history has put members of the Australian community at risk and his engagement with child abuse material offending perpetuates the cycle of child abuse.
The Direction makes it clear, that the Australian community expects non-citizens to obey Australian laws while they are in Australia. When a non-citizen engages in serious conduct in breach of this expectation then the Australian community expects the government not to allow such a non-citizen to remain in Australia.
The Australian community expects that the Australian government should cancel a person's visa if serious character concerns are raised through the commission of serious crimes. Indeed, the expectation applies regardless of whether the non-citizen poses a measurable risk of causing harm to the Australian community.
Upon consideration of the evidence before it, the Tribunal is satisfied that the expectations of the Australian community, particularly given the community's intolerance of very serious offending such as child abuse and arson weighs very heavily against the revocation of the cancellation of the Applicant's visa.

Primary Consideration 5 weighs very heavily against a decision to revoke the cancellation.

It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. These are considered under their respective headings below.

Pursuant to Direction 110 at 9.1 the Tribunal needs to take account the fact that unlawful non-citizens are, in accordance with section 198 of the Act, liable to removal from Australia as soon as is reasonably practicable in the circumstances specified in that section of the Act. Accordingly, if the Tribunal does not revoke the cancellation of the Applicant's visa, he will be held in immigration detention until such time as he can be removed from Australia.
Other legal consequences of the decision include a prohibition on applying for other visas, except for a Protection visa or a Bridging R visa under s 501E, and a permanent exclusion from Australia for visas subject to Special Return Criteria 5001(c).
The Applicant has stated in relation to his prospective removal that if he was returned to Myanmar, he would face persecution in that country for a range of reasons. These are his ethnicity, as an ethnic Chin, the absence of a travel authority, forced conscription into the army of Myanmar, and a fear that if he fails to engage in the military he would be imprisoned or killed.
As discussed at hearing the Applicant's claims for protection have not been assessed and there is nothing to preclude the Applicant from lodging a protection visa application in Australia and having his claims for protection properly tested. The Tribunal notes that during the assessment process the Applicant would be held in immigration detention until his protection application is finally determined.
The Tribunal is of the view that in the event that the Applicant lodges a protection visa application that a full assessment of the Applicant's claims and the prevailing country circumstances applicable in Myanmar at the time will be undertaken and how those circumstances may impact the Applicant.
It was also submitted that if the application for protection is refused the Applicant could be issued with a Bridging R visa, pending his removal from Australia, potentially to Nauru and that he may face harassment or be targeted by persons in Nauru because of his Australian criminal history, that he could resume drinking alcohol, and that he will be deprived of his human rights in Nauru. In the view of the Tribunal this is all merely speculative. The Tribunal notes that if a protection visa application is refused, it is at the time of the refusal that the legal consequences of the decision come into play, including the grant of a Bridging visa R, or any prospective removal to a third country.
If the Applicant's visa remained cancelled, and he lodged a protection visa application he will remain in immigration detention (pending his release from prison) until his protection visa is finally determined.
The Tribunal finds that the legal consequences of the decision for the Applicant are highly impactful, particularly a potentially extended period in immigration detention in the event that the Applicant does in fact lodge a protection visa application.
For these reasons the Tribunal finds that this consideration should be given moderate weight in favour of revocation.

Having regard to consideration 9.2, the extent of impediments if removed from Australia the evidence indicates the Applicant is 31 years old and that he does not suffer with any known medical conditions. The evidence indicates that the Applicant has worked in meat and chicken processing factories and has significant experience as a bricklayer and has completed a number of vocational courses including courses relating to bricklaying.
The Applicant arrived in Australia at the age of 21 and the evidence indicates that he spent his formative years in Myanmar before fleeing to Malaysia in approximately 2012 prior to coming to Australia in 2015. The Applicant may face some impediments upon return to Myanmar having been outside the country for the past 13 years.
The Applicant as a citizen of Myanmar would be subject to the health and welfare systems in that country.
The Tribunal finds that this consideration should be given moderate weight in favour of revocation.

With respect to 'other' consideration 9.3, namely the impact on Australian business interests this consideration does not apply, and the Tribunal affords neutral weight to this consideration.

Having regard to the evidence before it the Tribunal finds that the Applicant does not pass the character test.
Having close regard to the principles in paragraph 5.2 of Direction 110, the Tribunal has taken into account the considerations identified in sections 8 and 9 of the Direction which are relevant to this decision. The Tribunal has duly considered the matters raised by the Applicant in this review.
The following considerations weigh very heavily against a decision to revoke the cancellation:

(a) Primary Consideration 1, Protection of the Australian community from criminal or other serious conduct;

(b) Primary Consideration 5, The expectations of the Australian community.

Primary Consideration 2 is not relevant and hence given neutral weight.
Primary Consideration 3 is given moderate weight in favour of revocation.
Primary Consideration 4 is not relevant and hence given neutral weight.
To the extent that they are relevant, the Other Considerations are overall given moderate weight in favour of revocation.
Consequently, the Tribunal is not satisfied that there is another reason to revoke the visa cancellation.

The decision not to revoke the cancellation of the Applicant's Class 200 Refugee visa is affirmed.

Offender's Registration Act 2004

Hmo and Minister for Immigration and Citizenship (Migration) [2026] ARTA 82 (16 January 2026)

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

JYVY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] AATA 3617

FYBR v Minister for Home Affairs [2019] FCAFC 185

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 8 at [72]

KYZH and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1718 at [175]

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs

At a glance

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Decision date

Before

Source

Judgment (69 paragraphs)

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Legislation Cited (1)

Cases Cited (6)

Hmo and Minister for Immigration and Citizenship (Migration) [2026] ARTA 82 (16 January 2026)