NZYQ v Minister for Immigration, Citizenship and Multicultural AffairsPHTP and Minister for Immigration, Citizenship and Multicultural Affairs... [2026] ARTA 60 | Case summary | Zoe

CTHARTA

PHTP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2026] ARTA 60 (9 January 2026)

austlii:cth/ARTA/2026/60

ARTA|2026-01-09

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Source facts

Court

ARTA

Decision date

2026-01-09

Source

Original judgment source is linked above.

Judgment (114 paragraphs)

[1]

The applicant was born in Maidan Wardak Province, Afghanistan, in 1991 and he is a citizen of that country. He is a Shi'a Muslim of Hazara ethnicity. His father is deceased. His mother resides in Iran, and his sister resides in Switzerland. His wife and two children reside in Quetta, Pakistan.[1]
The applicant arrived in Australia as an unauthorised maritime arrival in 2013. On 26 September 2016, he applied for a SHEV. On 20 October 2017, a delegate of the Minister granted the SHEV on the basis that Australia owed the applicant protection obligations under s 36(2)(a) of the Act. The delegate, therefore, made a protection finding within the meaning of paragraph 197C(5)(a) of the Act.[2]
On 5 March 2021, the applicant was issued with a Notice of Intention to Consider Cancellation (NOICC) of his visa under s 116(1)(g) of the Act, based on convictions in NSW between 21 June 2018 and 24 February 2021. The applicant did not respond to the NOICC, and, on 9 April 2021, a delegate of the Minister cancelled the SHEV. The applicant applied to the former Administrative Appeals Tribunal (AAT) for a review of the delegate's decision. On 30 June 2022, the AAT set aside the delegate's decision and substituted a decision not to cancel the applicant's SHEV. [3]
On 2 August 2022, the applicant's SHEV was cancelled under s 501(3A) of the Act on the basis that he does not pass the character test, having a substantial criminal record and having been sentenced to a term of imprisonment of 12 months or more.[4] The applicant received and signed the notification of cancellation on 10 August 2022. On 23 August 2022, he made representations, seeking revocation of the mandatory cancellation of his SHEV.[5]
On 21 February 2023, the applicant was released from prison and transferred to immigration detention. Following the High Court decision in (), he was granted a Bridging R (Removal Pending) visa (BVR) on 30 November 2023 and has resided in the community since that date.

[9]

On 21 June 2018, the applicant was convicted of common assault and fined $1000. The NSW police factsheet records that, on 7 March 2018, a pay dispute with his former employer resulted in the applicant pushing the victim in the chest and punching him on the left cheek.[22]
On 12 June 2019, the applicant was convicted of resist or hinder police officer in the execution of duty, for which he received a $500 fine. He was also convicted of the offence of behave in offensive manner in/near public place/school and fined $400. Based on the police factsheet, the police stopped a vehicle in which the applicant was a passenger and arrested the driver. The applicant appeared intoxicated, yelled and swore at police and resisted arrest.[23]
On 3 August 2020, the applicant was convicted of attempt stalk/intimidate intend fear of harm (personal)-T2 and was sentenced to an 18-month CCO, commencing 3 August 2020 and concluding on 2 Feb 2022. According to the police factsheet, the applicant and the victim had an ongoing dispute concerning the applicant's vehicle which had been towed after a motor accident. The victim demanded payment of a holding fee, which was accumulating daily. On 22 September 2019, the applicant attended the victim's house with two co-offenders to demand the return of his vehicle. Following a verbal exchange, a co-offender and the victim fought, and the applicant called the police and attempted to separate them.[24]
In a statement dated 13 September 2023, the applicant described the incident as a 'brawl' following an argument about his car. He stated that 'two other people were fighting each other and one of them had a knife.' The applicant called the police and 'the one holding the knife cut [the applicant's] hand very badly.' He stated he was affected by illicit substances at the time and that the injury contributed to him beginning to carry a knife.[25]
In a statement dated 19 March 2025, the applicant gave further context about the accident and towing arrangements, including his concern that he was being taken advantage of because of his limited English at the time. He said that when he attempted to retrieve his car without paying the holding fee, he was told a buyer had been found and that the proceeds would cover the debt, and he felt pressured into a sale. He said the incident on 22 September 2019 occurred as described in his earlier statement but asserted that he was not using drugs at the time.[26] The applicant was arrested on 23 September 2019 and remanded for approximately seven months until his release on bail on 22 April 2020. [27]
On 18 February 2021, the applicant was convicted of multiple offences, namely possess schedule 9 substance (being 2.0 grams of synthetic cannabis), shoptlifting-T2 (relating to theft of goods from a supermarket valued at $239.65), and three counts of fail to appear in accordance with bail acknowledgment. He was also called up for re-sentencing in relation to the earlier offence of attempt stalk/intimidate intend fear of harm (personal)-T2 and was convicted on 3 August 2020. In relation to these offences, he was sentenced to a 12-month CCO commencing 18 February 2021 and concluding 17 February 2022.[28]
On 24 February 2021, the applicant was convicted of the offence of _shoplifting value a) The remitted bundle
b) The applicant's bundle of documents submitted 19 March 2025

c) The applicant's remitted Statement of Facts, Issues and Contentions (the applicant's remittal SOFIC), filed 19 March 2025

d) The applicant's supplementary tender bundle filed 6 May 2025

e) The applicant's remittal SOFIC in reply, filed 6 May 2025

f) The applicant's further bundle of documents filed 16 July 2025

g) The Minister's bundle of documents filed 9 April 2025

h) The Minister's remitted Statement of Facts, Issues and Contentions (the Minister's remittal SOFIC), filed 9 April 2025
1. The Minister's further bundle of documents filed 24 July 2025
j) The oral evidence given by the applicant

k) The applicant's closing submissions (Exhibit A1)
1. The Minister's closing submissions (Exhibit R1)
m) The applicant's closing submissions in reply (Exhibit A2)

[22]

(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 [sic] 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.

[46]

In this matter, I have had regard to the applicant's criminal offending as well as other conduct.
The applicant has been convicted of fourteen offences between June 2018 and September 2024. His conduct to date includes a serious violent offence, namely reckless wounding with a knife.
In written submissions, the applicant accepted that the reckless wounding conviction was serious but submitted it should be assessed in its factual and personal context. In the remittal SOFIC, the applicant contended that he 'has been convicted of serious criminal offences but is not in the most serious classes of offenders,'[33] and cautioned against placing weight on police factsheets beyond what is established by the convictions and sentences imposed.[34] It was further submitted that most of the applicant's offending can fairly be characterised as impulsive and occurring while under the influence of drugs rather than pre-planned, that the drug-related offending involved relatively small quantities, that there is no history of sexual offending or family violence, and that the majority of the offences resulted in fines and bonds.[35] The applicant relied on Judge Craigie's sentencing remarks as recording that the reckless wounding occurred in circumstances described as 'loss of control' in a setting where he was 'grossly intimidated and pressed,' as well as the sentencing judge's remarks about the applicant's state of hypervigilance. In the original SOFIC, the applicant characterised his criminal conduct as being at the low range of objective seriousness for the purposes of the protection of the Australian community.[36]
In the remittal SOFIC, the Minister submitted that the applicant's conduct should be treated as very serious. The Minister relied on the applicant's convictions for violent offending and for offending against police officers in the performance of their duties, as well as other offending. It was submitted that the applicant's repeat offending has a cumulative effect and discloses a trend of increasing seriousness.[37] The Minister submitted, in particular, that the circumstances of the reckless wounding where 'particularly serious,' involving the applicant repeatedly stabbing the victim with a kitchen knife in the street, including to the neck and chest, and that the seriousness is reflected in the sentence of three years and three months' imprisonment. The Minister maintained that the applicant's conduct to date is serious and weighs against revocation.[38]
I find the reckless wounding offence to be a very serious violent offending. The sentencing remarks, referencing the CCTV footage of the incident, established that the applicant produced a kitchen knife and used it repeatedly, causing multiple wounds, including a 5 cm wound to the left neck and a 15 cm wound to the right anterior chest of the victim. I accept the sentencing judge's observations that the location and number of wounds heightened the objective seriousness and that the conduct, once the knife was employed, had no 'shadow of self-defence.'[39]
The applicant's other offending includes common assault (involving punching the complainant) and resisting or hindering police. While those offences are not of the same gravity as the reckless wounding offence, they involve violence or aggression and demonstrate disregard for lawful authority and the rights of others. They bear on the overall characterisation of the applicant's conduct to date as involving a pattern of poor behavioural control and disregard for the rights of others and lawful authority.
In so far as the applicant relies on context, I accept, as the sentencing judge found, that the victim's conduct was intimidating and physically pressing, and that the applicant repeatedly tried to move away. While I have taken that into account in assessing the applicant's moral culpability in the historical sense, it does not reduce the objective seriousness of the actual violence inflicted, including the number of strikes and the location of wounds.
In the original SOFIC, the applicant relied on the sentencing remarks as the most reliable account of the circumstances of the reckless wounding and the sentencing judge's evaluative findings, including that the victim was 'blocking any path of retreat,' adopting an aggressive stance, and that the episode occurred in a setting described as a 'loss of control' in circumstances where the applicant had been grossly intimidated and pressed.'[40] The applicant further pointed to the sentencing remarks' characterisation of the applicant's prior offending as 'relatively minor,' and to the matters there recorded as bearing on culpability and mitigation, including remorse and early plea.[41] By contrast, the Minister argued that the reckless wounding was a particularly serious offence and, as a further indicator of that seriousness, relied on the fact that the applicant was sentenced to a term of three years and three months' imprisonment.[42]
I find that the sentence imposed, and the aggregate term of three years and three months' imprisonment with a non-parole period of two years, is substantial and supports the conclusion that the conduct was objectively serious. I also take into account that the sentencing judge regarded the standard non-parole period as a statutory guidepost bearing on inherent seriousness.
In the remittal SOFIC, the applicant submitted that he accepted the injuries sustained by the victim were significant.[43] In written closing submissions, it was submitted that, in his oral evidence, the applicant was frank about the offending and its impact on the victim, and that he described the offence as a 'big mistake' which led him to reflect and take positive steps. The applicant also relied on the sentencing remarks as the objective account of what occurred and what harm was caused.[44] In closing, the Minister again argued that the reckless wounding was particularly serious and should be treated as such in the assessment of Primary Consideration 1.[45]
I find the impact on the victim was significant. Even without additional evidence in relation to longer-term consequences, the injuries described demonstrate serious harm and an inherent degree of potential peril. The risk of catastrophic outcome from neck and chest stabbing is self-evident and heightens the seriousness of the conduct.
With regard to the frequency of the offending and any trend of increasing seriousness, the applicant submitted in the original SOFIC that his overall offending history should be assessed in light of the circumstances in which it occurred, including that his conduct reflected 'various social, mental, and health-related issues' rather than an aggressive character, and that substance use contributed to his offending during the relevant period. It was further contended that the applicant's record prior to the reckless wounding was 'relatively minor' in the sentencing sense and that the reckless wounding offence represents the peak of the offending, not an ongoing trend.[46] The Minister submitted that the applicant's offending demonstrates repeated disregard for the law across several years, and that there is a discernible escalation culminating in very serious violence. It was submitted that the applicant's repeat offending has had a cumulative effect and discloses 'a trend of increasing severity,' and that his criminal history should be viewed very seriously in the assessment of the nature and seriousness of the conduct to date.[47] In reply, the applicant submitted that 'the reckless wounding offence represents the height of his offending, and the "trend" of seriousness has been decreasing significantly since.'[48]
I find that the applicant has an offending history from 2018 onwards that includes multiple offences of varying types, including violence, drug related offences, public nuisance conduct, breach related offences, and property offences. The offending history shows repeated engagement with the criminal justice system over time. I find there is an escalation in seriousness cumulating in the reckless wounding offence, which is markedly more serious than the earlier offending and is properly characterised as an escalation. I also accept that the sentencing judge had described the applicant's earlier record as 'relatively minor.' That contextualises the escalation but does not diminish the seriousness of the culmination. I find the cumulative effect of the applicant's offending is significant. Even where some offences attracted fines or community-based orders, the overall offending history demonstrates repeated disregard for Australian laws over a sustained period. The fact that the reckless wounding offence was committed while the applicant was subject to community correction orders, in my view, aggravates the overall seriousness of the offending.
Having regard to these matters, I find the reckless wounding offence is very serious violent offending. The offence was committed in the context of an established offending history and while the applicant was subject to community-based orders. As to the nature and seriousness of the applicant's conduct to date, I find that the applicant's offending weighs significantly against revocation.

[57]

In the remittal SOFIC, the applicant submitted that the nature of harm should be assessed by reference to what any further offending is realistically likely to involve. It was submitted that the applicant's insight into his offending and remorse, and absence of violent incidents in custody or the community, indicate that violent offending is no longer part of the risk he presents. It was submitted that there has been no trend of violence since the reckless wounding offence, and that any further offending, if it were to occur, is more likely to be property or minor drug possession offending.[49]
In the Minister's remittal SOFIC, it was submitted that the nature of the harm posed to individuals or the Australian community, should the applicant engage in further criminal or other serious conduct, is very serious and that any such risk is unacceptable.[50] In closing submissions, the Minister submitted that if the applicant were to reoffend, such offending has the potential to cause serious physical or psychological harm to members of the Australian community, as well as cause property loss or damage.[51]
In his remittal SOFIC in reply, the applicant submitted that the Direction requires separate consideration of both the nature of the harm and the likelihood of the offending occurring, and that assessing the nature of harm depends on identifying what future offending may involve. The applicant relied on Dr Wearne's opinion that it is likely any future offending would fall into similar categories such as drug-related and breach offences, and that the risk of predatory violence, intentional violence or persistent anti-social behaviour is low, with harm varying from low-level public nuisance through, at its highest, moderate interpersonal violence. The applicant also relied on aspects of Dr Wearne's assessment addressing criminal tendencies and anger, and submitted these matters support the contention that the more serious forms of harm are not the most realistic risk pathway.[52]
The applicant further submitted that the Minister's contention that any risk is 'unacceptable' should not be accepted, particularly because it does not grapple with Dr Wearne's later opinions about the likely form of any future offending and the level of risk.[53] It was submitted that the Direction contemplates that only a limited class of conduct is such that any risk of repetition may be unacceptable. The applicant relied on JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs[54] to argue that an overly expansive approach to 'unacceptable risk' would not be consistent with proper construction of the Direction because it would render 'more otiose' the required assessment of likelihood of engaging in further criminal or other serious conduct.[55] The applicant also submitted that the Full Federal Court has warned against a 'ritualistic incantation' of risk being 'unacceptable' in light of the serious consequences of cancellation and submitted that the nature of any future offending in this case is not within the limited class where any risk is unacceptable.[56]
This factor requires consideration of the seriousness of the harm that may occur if the relevant conduct were to be repeated, particularly where the applicant's history demonstrates a capacity to cause serious harm in certain conditions.
The applicant's history includes serious violence in the reckless wounding offence. As the sentencing remarks record, that offence involved the use of a knife and multiple strikes, causing serious wounds, including to the victim's neck and chest. If offending of that kind were to recur, the harm could be grave, including serious injury or death. That conclusion is supported by the nature and location of the wounds and the fact of repeated strikes. The seriousness of that potential harm is not avoided by characterising the index offence as situational or substance related. Rather, the applicant's history demonstrates that, if relapse-driven dysregulation were to occur again in a conflict setting, there is capacity for harm of a very serious nature.
I consider Dr Wearne's evidence to be the most reliable guide, on the material before me, to the likely pathway and seriousness of harm if the applicant were to reoffend. I accept his opinion that the risk of predatory violence, intentional violence, or persistent and disorderly behaviour is low. I also accept his opinion that any reoffending is more likely to be situational and associated with relapse, peer triggers, and psychological instability, and that the harm, if he reoffends, could range from relatively minor outcomes, such as low-level public nuisance and drug-related or breach offending up to moderate interpersonal violence at the upper end. That evidence does not support a finding that serious harm is not possible. It does, however, assist in identifying that the most serious harm is more likely to arise through relapse driven escalation in particular circumstances.
I have taken into account the parties' submissions about 'unacceptable risk,' including the applicant's submissions that the Direction does not support an approach which treats 'unacceptable' as a formula applied without careful assessment of likelihood of reoffending. I agree that the evaluative task requires findings about the nature of harm and likelihood of the relevant conduct occurring, and that any conclusion about whether risk is unacceptable must be anchored in those findings rather than as a standalone label. I also accept that the Minister's submission about the seriousness of harm, if reoffending occurred, must be evaluated in light of the expert evidence now available, including Dr Wearne's assessment.
For these reasons, I find that the potential harm if serious violent reoffending of the kind demonstrated in the index offence were repeated is grave. However, the Direction does not support treating 'unacceptable risk' as a formula applied by reference to harm alone, divorced from the required evaluative task of determining the likelihood of the applicant engaging in further criminal or other serious conduct. I accept that an overly expansive approach to 'unacceptable risk' would tend to render otiose the Direction's requirement to assess likelihood. I am also mindful of the Full Federal Court's caution against a 'ritualistic incantation' of risk being unacceptable in light of the serious consequences that follow from cancellation.[57] Having regard to the evidence as a whole, including Dr Wearne's opinion that predatory or persistent anti-social violence is unlikely and that any reoffending is more likely to be situational and relapse associated, I am not satisfied that this is a case that would fall within the limited class contemplated by the Direction where the nature of the conduct and the harm that would be caused is such that any risk of repetition is unacceptable. That said, even on the more likely pathway identified by Dr Wearne, the upper-end possibility of interpersonal violence in the event of relapse means the risk of harm remains a highly relevant adverse factor and requires a cautious approach to the assessment of likelihood of engaging in further criminal or other serious conduct.

[59]

In the remittal SOFIC, the applicant submitted that the Direction requires consideration of information and evidence about the risk of reoffending, and evidence of rehabilitation achieved by the time of decision, giving weight to the time spent in the community since the most recent offence. It was contended that the applicant is unlikely to engage in further criminal conduct because he has made meaningful efforts to address substance use and mental health issues. In particular, he reported abstinence since around 2021; engagement with counselling and psychological support; attendance at Narcotics Anonymous and other programs in custody; engagement with mental health services while in immigration detention; and improved mental health since his release into the community. The applicant further submitted he now has significantly stronger protective factors and supports than at the time of the 2021 offending, including casework support from Life Without Barriers, medical and psychological treatment, Special Benefit payments, improved English skills, and stable accommodation in the community. The applicant also relied on evidence of remorse and developing insight and submitted that his extended period in custody and immigration detention had been a significant deterrent and catalyst for change.[58]
The applicant further submitted that, in the post-NZYQ context, the Tribunal should proceed on the practical basis that he will remain in the community regardless of the outcome, such that the likelihood assessment should take account of the way visa status may affect stability, access to supports, and capacity to maintain a lawful routine. The applicant relied on YMGL v Minister for Immigration and Multicultural Affairs[59] as supporting the proposition that, on the facts of that case, the Tribunal accepted that leaving an applicant on a bridging visa did not best serve community safety where it could restrict access to supports sought for drug and mental health issues, potentially increasing reoffending risk. The applicant submitted that a similar approach is relevant in this case and that visa cancellation should not serve an impermissibly punitive purpose.[60]
In the Minister's remittal SOFIC, it was contended that there is a real risk of the applicant engaging in further criminal or other serious conduct. The Minister relied on Judge Craigie's sentencing remarks, including reference to a Corrective Services risk assessment indicating a medium to high risk of reoffending at the time of sentence, and His Honour's findings concerning the applicant's depression and addiction. The Minister submitted that the sentencing judge considered that, without support in the community, the applicant was more likely to gravitate towards antisocial contacts and conduct, and that prior attempts at rehabilitation without support had not been successful. The Minister contended that the applicant's claimed improvements should be understood in light of his BVR conditions and the existence of ongoing legal proceedings. It was submitted that the applicant's contention that revocation would reduce risk by enabling access to further supports and family sponsorship proceeds on assumptions about future events that may not occur. It was argued that, in any event, there is no evidentiary basis to conclude that increased economic support or the presence of family would reduce recidivism. The Minister further contended there is limited evidence of rehabilitation and a clear need to complete formal courses in respect of drug addiction and violence and submitted that this primary consideration should be given significant weight against revocation.[61]
In reply, the applicant relied on Dr Wearne's assessment of him as presenting a low to moderate risk of reoffending and as not 'inherently antisocial.' The applicant contended that the Minister's assertions of 'limited evidence of rehabilitation' and 'clear need' for formal courses were advanced before Dr Wearne's report and are not sustained once the most recent assessment of clinical needs is considered. Reference was made to Dr Wearne's opinion that the applicant's substance use disorder is in sustained remission and that he does not presently require treatment for substance or alcohol use, subject to monitoring. The applicant also relied on his engagement with rehabilitation support, including Narcotics Anonymous, drug and other alcohol programs in custody and EQUIPS Foundation Program in the community. Reliance was further placed on Dr Wearne's assessment that the applicant does not present with an anger problem requiring intervention and did not exhibit residual PTSD symptoms at assessment.[62]
The applicant rejected the contention that improvements should be explained by visa conditions or the existence of these proceedings and emphasised that employment and family connection are relevant protective factors which are less capable of being realised while he remains on a BVR than under a more secure status. The applicant relied on CRRN v Minister for Immigration and Multicultural Affairs[63] to argue that, in the decision-making context addressed in that case, it was legally unreasonable not to assess the relative risk to the community of each visa outcome and submitted that a comparative risk assessment may likewise be required where the applicant will remain in the community irrespective of the Tribunal's decision.[64]
In closing, the applicant submitted that he was a credible witness and relied on several cases[65] to argue that caution should be exercised when assessing credibility of evidence given through an interpreter and by a person from a different cultural background. The applicant submitted that the sentencing remarks should be given significant weight, including in understanding the interaction between substance use and mental health issues leading to the index offending. The applicant relied on his oral evidence at the hearing that the index offending was a catalyst for change, including cessation of drug use and disengagement from 'bad friends.' The applicant addressed the 2024 cannabis possession offence, submitting that his oral evidence supported his honesty, and that he sought psychological support following that incident. The applicant also relied on Dr Wearne's oral evidence about relapse and triggers, the relative significance of cannabis as compared with methamphetamine for this applicant, and the protective value of stable accommodation and employment. It was submitted that there are now stronger protective factors than at any earlier point, including Ms Perry's evidence about her 'zero tolerance' approach to substance use and antisocial associates and the applicant's full-time employment. The applicant submitted that, while family reunification is not assured, the aspiration of reunification provides an intrinsic incentive to remain abstinent and law-abiding.[66]
The Minister accepted in closing submissions that the Tribunal should apply the reasoning in DVRL v Minister for Immigration and Citizenship[67] where it is engaged, namely where an applicant advances submissions and evidence requiring comparison of the risk posed under different visa scenarios. The Minister, however, submitted the Tribunal should reject a counterfactual risk assessment in this case because it proceeds on a false premise that revocation would result in the applicant holding a substantive visa, noting that the SHEV would have ceased by operation of law and that any Resolution of Status visa outcome is contingent on further steps, including the making of an application and satisfaction of relevant criteria. The Minister submitted that, on either outcome in this review, the immediate practical position is that the applicant will hold a BVR, and the risk assessment should proceed on that basis. The Minister accepted that the Tribunal should at least ask whether a counterfactual assessment is required given the way the applicant has put the case.[68] The Minister also relied on CRRN and on SSVJ v Minister for Immigration, Citizenship and Multicultural Affairs[69] and KFTJ v Minister for Immigration and Multicultural Affairs[70] as illustrating the need for logical and rational fact-finding where any comparative risk assessment is undertaken, albeit in the different context of Minister's personal decisions under s 501BA. The Minister submitted the applicant's risk is real and unacceptable, relying on the history of drug abuse and relapse, the 2024 cannabis possession incident (including the submission that but for police intervention the applicant would have used cannabis), the applicant's own evidence that 'bad friends' and missing his family were drivers that remain present, and the detention contraband parcel incident as showing ongoing susceptibility to negative influence and poor decision-making. The Minister submitted that while Ms Perry is a pro-social influence, her lack of awareness of the cannabis incident calls into question the extent of monitoring and deterrence she can provide. The Minister also relied on Mr Watson-Munro's assessments of risk as 'moderate' and Dr Wearne's 'low-moderate' risk assessment, submitting that given the seriousness of potential harm neither level of risk should be tolerated. The Minister relied on Dr Wearne's oral evidence that the applicant's trauma background will 'always play a role' and may be associated with maladaptive coping strategies.[71]
In assessing likelihood of the applicant engaging in further criminal or other serious conduct, I have considered the psychological and risk material from independent sources, and the evidence of rehabilitation and protective factors said to be operating at the time of this decision. The material spans a number of years and was prepared in different contexts. It includes: the pre-sentence report by Mr Chafic Awit dated 9 May 2022;[72] the Corrective Services pre-release report dated 24 November 2022;[73] the psychological report by Mr Watson-Munro dated 5 October 2023;[74] and Dr Wearne's forensic assessment dated 4 April 2025;[75] as well as the oral evidence, including the applicant's evidence of his current circumstances in the community.
I consider Mr Awit's report to be relevant because it records psychological vulnerabilities and substance-related issues at the time and links those issues to the applicant's offending in that period. I accept it as evidence of the applicant's presentation and identified risk drivers at the time it was prepared. However, I give it limited weight on the forward-looking question of present likelihood of the applicant engaging in further criminal or other serious conduct because it is historical, it predates the applicant's release into the community, and it does not evaluate the applicant's current living arrangements, supports, and protective factors.
The Corrective Services pre-release report assessed the applicant as medium to high risk of reoffending and recorded concerns that, while acknowledging unlawfulness, the applicant continued to maintain self-defence and minimise responsibility, had limited insight, and had not had an opportunity to engage in offence-specific intervention.[76] The report also verified attendance at an addictions support group and completion of several educational courses in custody.[77] I also consider this report as important evidence of risk assessment and rehabilitation needs at that time. It provides a baseline against which to assess whether the applicant's insight and protective circumstances have materially changed since release into the community.
Mr Watson-Munro's report was prepared while the applicant was in immigration detention. Mr Watson-Munro described a complex history involving depression, anxiety, features of PTSD symptomatology, and substance use disorder, in circumstances of separation from family, social isolation, and limited supports.[78] He assessed the applicant's risk of reoffending as moderate at that time, and emphasised that ongoing structure, supervision and psychotherapy were needed to address underlying symptomatology and reduce relapse risk.[79] I accept Mr Watson-Munro's observations as professionally grounded and relevant to understanding the applicant's then risk drivers and the protective value of structure and treatment. As with the previous two reports, I give Mr Watson-Munro's report limited weight on present likelihood of the applicant engaging in further criminal or other serious conduct because the applicant's circumstances have changed since late 2023, including through a period of living in the community with different supports and obligations.
Dr Wearne's assessment is the most recent specialist risk evidence and is directed to the applicant's present functioning and future risk. Dr Wearne assessed the applicant as low to moderate risk of recidivism, drawing on a structured clinical assessment and psychometric testing, including the Self-Appraisal Questionnaire (SAQ). Dr Wearne assessed the applicant as having low criminal tendencies, no anger problem requiring intervention, and a low risk of predatory violence, intentional violence or persistent antisocial behaviour. He assessed the applicant's substance use disorder as being in sustained remission, subject to monitoring. Dr Wearne identified the most proximal driver of the applicant's past offending as substance use, associated with poor emotional and behavioural regulation while under the influence, in circumstances exacerbated by negative peer association and broader psychological instability.[80] Dr Wearne also identified that interpersonal and reactive violence remain possible, particularly in the event of substance relapse and associated dysregulation. I give Dr Wearne's opinion substantial weight as the most contemporaneous and structured assessment of risk. However, I consider it in conjunction with the broader evidentiary picture, including the applicant's demonstrated vulnerability to relapse and the evidence bearing on boundaries and judgement under pressure.
The applicant's own accounts over time are relevant to understanding both historical triggers and present insight. In the applicant's earlier representations and statements, he repeatedly linked his offending to substance use, negative peers and the stress of separation from family.[81] He expressed remorse, a stated intention not to reoffend and described custody and detention as periods in which he had reflected on his conduct. He also stated that he would avoid former associates.[82]
In his oral evidence at the hearing, the applicant gave a similar account. He said he began using substances from about 2016, and that his use escalated in the years leading to the index offence. He attributed those developments to associating with 'bad friends' and to loneliness and stress while separated from his wife and children. The applicant also gave evidence that the reckless wounding offence was a shock that prompted him to stop using drugs, disengage from harmful associates, and focus on rebuilding his life, including employment and lawful conduct. I accept this evidence as broadly consistent with the risk pathway identified by Dr Wearne and with the historical material, subject to the specific inconsistencies addressed below.
I am satisfied there are substantial protective factors now operating which mitigate the likelihood of reoffending in the applicant's present circumstances. The most significant of these is the applicant's stable accommodation within Mr Perry's household. Ms Perry's evidence,[83] which I found credible and persuasive, was based on co-residence and direct observation, and it included evidence of practical boundaries within the household. On the evidence before me, that arrangement provides day-to-day structure and an accountability setting that was not present during the period leading to the index offence.
I also accept that the applicant's employment and routine operate as meaningful protective factors. The evidence that the applicant has secured employment as a labourer, with routine and lawful income, supports structure and reduces idle time. It is also consistent with Dr Wearne's evidence that such features can operate as dynamic protective factors, including by reducing exposure to harmful associates and reducing the opportunity for relapse.
Further, I have considered the evidence of the applicant's program participation in custody and in the community, including drug and alcohol education programs, Narcotics Anonymous, and engagement with community corrections programming. This evidence supports the broader picture of rehabilitation efforts and an intention to change. However, I do not treat course participation, of itself, as determinative of sustained behavioural change. I also place weight on the evidence of continuing casework and practical supports in the community. The applicant's ongoing contact with Life Without Barriers and employment support, together with receipt of Special Benefits, are relevant protective supports which were not available to the applicant during parts of the earlier offending period, and which contribute to stabilising his present circumstances.
I am mindful of the evidence that points to risk reduction over time, without overstating it's significance. There is evidence that some BVR supervision conditions were reduced over time, and the applicant submitted this reflects an acknowledgement by the Minister that risk is declining. I consider that circumstance as a contextual indicator only. It does not displace the Tribunal's evaluative assessment of likelihood on the totality of the evidence.
These protective factors must, however, be weighed against continuing vulnerabilities disclosed by the evidence, including relapse exposure and the applicant's capacity to maintain appropriate boundaries when under pressure.
The 2024 cannabis possession conviction demonstrates that, after the index offence and after being released into the community, the applicant was again in proximity to an illicit substance in a peer setting. It also exposes an inconsistency in his accounts over time. In Dr Wearne's report, it is recorded that the applicant had maintained that the marijuana belonged to a friend and that he had no intention of using it. In his oral evidence, the applicant accepted that, while the cannabis belonged to his friend, they intended to smoke it together while watching a soccer match, and that he accepted responsibility because it was found in his room and the intention was shared. I do not treat this inconsistency as determinative of the present likelihood of reoffending. However, it reduces the weight I place on the applicant's self-reporting about abstinence and boundary setting, and it supports a finding that exposure to drugs through social associates remains an ongoing risk factor.
I have also considered the detention contraband parcel incident. The applicant's oral evidence was that he agreed to receive a parcel on behalf of another detainee in circumstances said to involve parcel limits, believed it contained permissible items, and did not identify the detainee when contraband was found because he did not want to 'dob in.' The applicant submitted that the incident report is not a verbatim record, that it was prepared by a person not present for the relevant interaction, that it is unclear whether an interpreter was used, and that the statement that he 'claimed ownership of the contents' is ambiguous. The Minister did not contend the contraband was the applicant's property but relied on the episode as indicating poor boundaries and compromised judgment under pressure. I accept the limitations of the incident report and I do not consider the episode as establishing deliberate procurement or ownership of contraband. However, even on the applicant's own account, he agreed to an irregular arrangement, and then chose not to be fully transparent with authorities when the risk of adverse consequences became apparent. I consider the incident to be relevant to the applicant's vulnerability to negative influence and I am of the view that poor boundary-setting under pressure remains a concern, notwithstanding the protective effect of the applicant's current accommodation and supports.
I accept that separation from family remains an ongoing stressor and an identified historical trigger in the applicant's history. The applicant's evidence throughout the process was that missing his family contributed to substance use and offending in the past, and that he remains separated from them. I have also had regard to the Minister's submission, and Dr Wearne's oral evidence, that the applicant's trauma history will continue to play a role and may be associated with maladaptive coping strategies.[84] That evidence does not establish that relapse will occur. It does, however, reinforce that risk management depends on sustained protective structures and effective coping supports over time.
I have considered the parties' submissions on the relevance of the applicant's visa status to the likelihood of reoffending. The applicant submitted that the Tribunal should not approach this factor on the assumption that an adverse outcome results in removal. He submitted that, if the decision under review is affirmed, he will remain in the community on a BVR, and that the risk assessment should take account of the practical consequences of that status for stability, access to supports, and future planning. He submitted that revocation would better protect the Australian community because it would support a more stable and protective setting, including by improving access to supports and prospects said to be relevant to longer term family stability.[85]
The Minister accepted that the applicant has advanced a comparative or 'counterfactual' contention and submitted the Tribunal should at least consider whether any comparative Visa status of risk assessment is required on the way the case has been put. The Minister relied on DVRL and submitted that such an assessment should not be undertaken on the facts of this matter because revocation would not result in the applicant being restored to a substantive SHEV and any Resolution of Status outcome is contingent and uncertain. The Minister further submitted that, if any comparison is undertaken, it must be grounded in logical and rational findings on the evidence.[86]
I do not proceed on the premise that revocation would immediately result in the applicant holding a substantive visa, nor that it would necessarily lead to the grant of any further visa or to family reunion. Nor do I proceed on the basis that affirming the decision under review would result in the applicant remaining in the community indefinitely on a BVR. Those outcomes are contingent and I am not able to treat them as certain on the evidence before me. That said, the expert evidence identifies a risk pathway that is considerably sensitive to stability, structure, and disengagement from harmful associates. In that context, the Tribunal's decision may bear upon the likelihood of reoffending in a practical way by affecting the applicant's ongoing sense of security, capacity to plan, and exposure to continuing uncertainty associated with BVR status and potential future removal processes, discussed further below. I take those matters into account to the extent they are supported by the evidence, but I do not base my reasoning on speculative future visa outcomes. However, I do accept that sustained legal uncertainty can operate as a stressor and may, overtime, erode the stability and routine that otherwise operate protectively. In this case, the most concrete and immediate protective factors are those already operating in the community, namely stable accommodation, employment and routine, and service supports. The assessment of the likelihood of the applicant reoffending, therefore, turns primarily on whether those factors are real, operating, and capable of being maintained, while recognising that the level of uncertainty associated with the applicant's ongoing visa position may affect their durability.
Having regard to the evidence and submissions as a whole, I find the likelihood of the applicant engaging in further criminal or other serious conduct in his present circumstances is low to moderate. This finding is principally based on the protective factors currently operating in combination, namely stable accommodation with day-to-day pro-social oversight, meaningful employment and routine, and engagement with supports. It is reinforced by Dr Wearne's assessment of low to moderate recidivism risk and his evidence that the more plausible risk pathway is relapse-linked, situational offending associated with negative peer influences and psychosocial stressors, rather than entrenched predatory violence or persistent antisocial conduct. However, I am not satisfied that the risk is negligible or eliminated. The 2024 cannabis possession conviction demonstrates renewed exposure to illicit substances in a pure setting and reveals an inconsistency in the applicant's accounts over time which reduces the weight I place on aspects of his self-reporting. The detention parcel incident likewise indicates vulnerabilities in boundary setting and judgement under pressure. Those matters warrant caution and support the view that risk management remains dependent on continued stability, ongoing avoidance of substance-using associates, and sustained coping supports.
Overall, I am of the view that the risk is meaningfully mitigated and capable of being managed in the community, but it remains conditional upon the continuation of the current protective structures and applicant maintaining firm boundaries from substance related and criminogenic peer environments. Balancing these factors, I give Primary Consideration 1 moderately significant weight against revocation.

[69]

In the applicant's remittal SOFIC, it was submitted in this consideration weighs in favour of revocation. The applicant submitted that he has resided in Australia for about 12 years. He is unable to return to Afghanistan, and he has not seen his family since leaving that country. It was submitted that the Tribunal should assess his ties by reference to his total residence in Australia, notwithstanding periods in criminal custody and immigration detention. He submitted that his life is now anchored in Australia, that his offending did not commence soon after his arrival, and that he has consistently sought to support himself and contribute through work while living in Australia. The applicant further submitted that, as a SHEV holder, he was not able to sponsor his family members, and that the Resolution of Status transition arrangements recognise family reunification as a key benefit of access to permanent residence. On that basis, he submitted that his lack of close family in Australia should be understood in the context of the visa settings that applied to him.[87]
In the Minister's remittal SOFIC, it was submitted that this consideration should be given neutral weight or no weight because the applicant has no immediate family members in Australia. The Minister accepted that the applicant has lived in Australia for over 12 years, including time in custody, but submitted that much of that time is overshadowed by the applicant's criminal conduct, namely 13 convictions between June 2018 and July 2022. The Minister further submitted there is limited evidence of the strength, duration and nature of any family or social links with Australian citizens, permanent residence, or people with an indefinite right to remain in Australia, and contended that the consideration should, at most, attract limited weight in favour of revocation.
In reply, the applicant maintained that this factor generally weighs in favour of revocation. He submitted the Tribunal should give some leniency to his circumstances on the basis that he was precluded, by the legislative settings applicable to SHEV holders, from sponsoring his family to join him. The applicant tendered Ms Perry's statement and submitted that it demonstrates genuine and substantial social ties in Australia, developed in the context of his earlier adjustment difficulties, and that the strength of those ties should be given significant weight. The applicant further submitted that affirming the delegate's decision would preclude him from ever sponsoring his family to join him in Australia.
In closing, the applicant relied on his earlier written submissions and emphasised that his ties are strong and increasing, and that Ms Perry's evidence demonstrates that he has become part of her family over time and that they would suffer greatly if he were removed. The applicant also linked this consideration to the legal consequences of the decision and to Dr Wearne's evidence about the absence of family as a driver of past vulnerability, and the potential value of reunification as a dynamic protective factor.
The Minister submitted in closing at the applicant has no immediate family members in Australia and, while his residence of over 12 years is not insubstantial, much of that period is overshadowed by criminal offending, drug use, and periods of detention. The Minister submitted that the applicant has made little positive contribution to the Australian community and, apart from his friendship with Ms Perry and her sons, he has limited social ties. On that basis, the Minister submitted this consideration should be given limited weight in favour of revocation.
I accept that the applicant has lived in Australia for approximately 12 years and that he has not returned to Afghanistan since arriving in 2013 at the age of 22. While the applicant did not arrive as a young child, I am not satisfied that he began offending 'soon after arriving in Australia' in the sense contemplated by the Direction. With regard to time the applicant has spent contributing positively to the Australian community, the evidence is mixed when viewed across the whole period of residence because it includes significant periods marked by offending and detention. That history affects the extent to which the passage of time alone demonstrates settled, lawful integration. At the same time, there is some evidence of positive contribution, particularly through employment-related connections and the applicant's participation in Ms Perry's stable household. I consider these matters as more recent evidence of positive contribution since the applicant's release into the community and establishment of his current routine.
The applicant's most substantial ties to Australia are the close social and family-like ties he has developed with Ms Perry and her sons. I accept that Ms Perry and her sons are Australian citizens of indigenous background. Although they are not the applicant's immediate family, I am satisfied that the relationship is enduring, close and practically interdependent in a way that goes beyond friendship. Ms Perry's statement describes a relationship extending over several years, commencing through her sons' introduction of the applicant in about 2018 or 2019, in circumstances where the applicant was experiencing homelessness and instability. Ms Perry describes gradual involvement over time, including that applicant staying overnight on occasions when he was in difficulty. She also describes a period, around the time before the index offence, when she observed him 'going downhill,' avoiding her, and associating with 'the wrong sorts of people,' which she attributed to drug use and mental health decline.[88]
Ms Perry states the applicant has lived with her for about 15 months. She describes that arrangement as providing a stable home environment, day-to-day structure and close oversight. She states that he has never used drugs in her home and that she has never seen him use drugs. She describes practical household arrangements, including his payment of rent and contributions to bills, and she describes shared travel to Newcastle to visit her extended family, including her grandmother, whom the applicant has met and with whom Ms Perry says he has formed a positive relationship. She describes the applicant as having 'become part of the family,' and provides concrete examples of mutual support and accountability within the household. She also states that her sons continue to maintain contact with him and that they socialise together, including weekend visits and activities in the community.[89]
On the evidence before me, I am satisfied that the applicant's most substantial social ties are with Ms Perry and her family. I am satisfied that he has developed sustained, close and supportive ties with Australian citizens which are not casual or transitory. I find that the applicant's ties to Australia have increased in strength and depth over time through stable residence and genuine integration into Ms Perry's household and family unit. I accept that the applicant's time in Australia has been significantly interrupted and adversely marked by offending and periods of detention. That history limits the weight that can properly be placed on length of residence of itself, and it means any assessment of contribution over the period must be approached with caution. Nevertheless, the evidence before me also demonstrates real and current ties of significance to Australian citizens, and a more recent pattern of constructive participation in a stable household and community setting. Overall, I give this consideration moderately significant weight in favour of revocation.

[72]

Paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a 'norm,' expects the government would not allow them to enter or remain in Australia.
Paragraph 8.5(2) of the Direction directs that 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. 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 certain conduct, including 'commission of crimes against government representatives or officials...in the performance of their duties' and 'commission of serious crimes against women, children or other vulnerable members of the community' In this context, 'serious crimes' include crimes of a violent or sexual nature.
Paragraph 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) provides that decision-makers must apply the Government's stated expectations and are not to conduct an independent assessment of those expectations in light of the individual's circumstances.
In the original SOFIC, the applicant submitted that he has not engaged in serious conduct of the kind set out in 8.1.1 of the Direction and that the risk he may do so is not unacceptable.[90] It was submitted that the Australian community would be 'fair minded' and would expect a 'proportionate and reasonable judgment to apply.' It was submitted that the Australian community would not expect 'indefinite detention in the context of the applicant's low seriousness offending.' It was also submitted that drug use and addiction should be characterised as a public health and social issue rather than a criminal issue, and that it would not align with community expectations to cancel his visa based on drug addiction.[91]
In the remittal SOFIC, the applicant did not advance the premise that non-revocation would lead to indefinite detention. Relying on FYBR v Minister for Home Affairs,[92] the applicant accepted that paragraph 8.5 expresses the Government's view of community expectations and that the Tribunal must proceed on that basis. It was submitted that paragraph 8.5 contemplates a binary position in which a person will either remain in Australia or not, and either hold a visa or not. The applicant argued that, because of NZYQ, those expectations cannot be realised in his case because he will remain in the Australian community on a visa regardless of the Tribunal's decision. It was submitted there is no warrant to read paragraph 8.5 as containing an expectation that he should not be granted the visa he has applied for, or an expectation that he should not be allowed to remain in Australia permanently. The applicant contended that, in the circumstances, paragraph 8.5(1) does not apply in the usual way and it is permissible to moderate the weight given to this consideration because the stated expectations cannot be achieved in respect of him.
In the Minister's remittal SOFIC, it was submitted that paragraph 8.5 provides an exhaustive statement of the Australian community's expectations, and the Tribunal must not independently assess community expectations. The Minister submitted that, as a norm, the community expects non-citizens to obey Australian laws and expects the Government not to allow a person to remain in Australia where the person has engaged in serious conduct in breach of that expectation or where there is an unacceptable risk of such conduct. It was submitted that this expectation applies regardless of whether the applicant poses a measurable risk of physical harm and contended that the applicant has not sufficiently demonstrated that his risk of reoffending and causing further harm has been mitigated. Relying on YNQY v Minister for Immigration and Border Protection,[93] the Minister submitted that this factor is 'in substance adverse to any applicant.'
In reply, the applicant contended that YNQY was decided before NZYQ and before later legislative changes affecting persons who remain in the community on a BVR, and therefore does not assist where the assumptions underlying the Direction have been altered. Relying on the Federal Court decision in WVJB v Minister for Immigration, Citizenship and Multicultural Affairs,[94] it was submitted that the Tribunal is entitled to give reduced weight to the norm in paragraph 8.5 where the circumstances warrant limited weight or significance being attached to it, including because the applicant will remain the holder of a BVR and the stated expectation may never be realised.[95] It was submitted that, in other Tribunal decisions involving BVR holders,[96] the weight given to community expectations has been reduced. While there remains a future possibility of removal, the Minister characterised that possibility as speculative on the evidence, and that the weight to be given to this consideration should be reduced, particularly because the applicant has demonstrated his risk of reoffending has been mitigated.
Consistently with the applicant's reliance on FYBR, the Tribunal must 'proceed on the basis of the Government's view' and not independently assess community expectations in the particular case. The expectations of the Australian community in paragraph 8.5 of the Direction are stated in a normative manner. The focus of this consideration is not on the eventual physical outcome of whether the non-citizen is removed from Australia, but at the decision to cancel or refuse a visa based on character concerns. The Direction makes clear that the Australian community holds two key expectations: first, that non-citizens will obey the law in Australia, and second, that the Government should refuse or cancel the visas of individuals who raise serious character concerns.[97] The first reflects the normative standard of conduct expected of non-citizens, and the second reflects community expectations regarding the outcome of the exercise of the power conferred by s 501 in respect of a particular person who has not met that standard.[98]
Referring to paragraph 8.5 of Direction No. 99, Horan J in RCLN v Minister for Immigration, Citizenship and Multicultural Affairs[99] noted that the Direction does not 'require decision-makers to moderate the expectations of the Australian community in light of the specific circumstances of the non-citizen.' [100] His Honour stated:

[78]

The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia's non-refoulement obligations in respect of unlawful non-citizens.
While this consideration in the Direction refers to non-refoulment obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a visa refusal or cancellation under s 501 or related provisions, including unlawful status, the likelihood of being detained and/or removed, and refusal or cancellation of other visas.
If the mandatory cancellation of the applicant's visa is revoked, he will retain his visa or would be eligible to apply for a Resolution of Status visa. If the mandatory cancellation is not revoked, the applicant becomes an unlawful non-citizen. As a result, he would be liable to removal from Australia as soon as reasonably practicable under s 198, and in the meantime, detention under s 189 of the Act. Section 197C of the Act provides that for the purposes of s 198, it is irrelevant whether Australia has non-refoulement obligations in respect of a non-citizen. In such circumstances, the applicant would face significant restrictions on applying for another visa. Under s 501E of the Act, an application for a visa other than a protection visa cannot be made from within the migration zone, unless it is for a BVR in limited circumstances.
Furthermore, certain visas are subject to special return criteria (SRCs). SRC 5001(c) is of particular relevance as it provides for permanent exclusion if the visa applicant previously had a visa cancelled under section 501 and that cancellation has not been revoked under s 501CA. There is no provision for a visa applicant to whom SRC 5001 applies to request a waiver of the permanent exclusion. However, SRC 5001 will no longer apply if the Minister acts personally to grant a permanent visa to a person whose visa was cancelled under s 501.
As already noted, a protection finding has been made in relation to the applicant with respect to Afghanistan. That protection finding stands regardless of the fact that the applicant's SHEV has since been cancelled.[105] There is no evidence before me that a decision has been made in relation to the applicant under s 197D(2) to the effect that he is no longer a person in respect of whom any protection finding would be made.
As explained by paragraph 9.1.1(2) of the Direction, s 197C(3) ensures that, except in the limited circumstances specified in s 197C(3)(c), s 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made. The applicant, therefore, cannot be removed to Afghanistan in breach of Australia's non-refoulement obligations.
Following the decision of the High Court in NZYQ, detention of an unlawful non-citizen is not validly authorised by ss 189 and 196 if there is 'no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future.'[106]
The applicant currently holds a BVR that is exempt from curfew and monitoring conditions. In the remittal SOFIC, the applicant submitted that this consideration weighs in favour of revocation. The applicant's submissions focused on matters relating to applicant's residence in Australia, his inability to return to Afghanistan because of the protection finding, and the practical significance of family reunion being unavailable to SHEV holders. The applicant relied on the Resolution of Status transition arrangements and explanatory material to submit that access to permanent residence brings with it the ability to sponsor family members for reunification, and that the applicant's earlier visa status constrained his capacity to bring his family to Australia.
The Minister submitted that the legal consequences to be considered are the direct and immediate, statutorily prescribed consequences of the Tribunal's decision, being consequences described as inevitable or certain, assessed by reference to the facts and circumstances prevailing at the time of decision. The Minister accepted that this consideration weighs in the applicant's favour but submitted it should be given limited weight. The Minister submitted that, if the decision under review is affirmed, the immediate statutory consequence is that the applicant will continue to hold the same BVR he currently holds, permitting him to reside in the community and access welfare assistance. The Minister further submitted that the conditions of that BVR, and the uncertainty associated with it, are an intended consequence of the statutory scheme, and that the applicant's contentions about practical prospects of removal are speculative, including by reference to material indicating that only a very small number of people in a larger cohort had been granted visas by third country.
In reply, the applicant submitted that the parties agree on certain statutory consequences, including that he will continue to hold a BVR if unsuccessful, and that an unsuccessful outcome would attract statutory bars on future visa applications, foreclose any pathway to a resolution of status visa and permanent residence, and may engage a prohibition to prevent him from ever returning to Australia. It was submitted that the Minister's contention that the weight given to this consideration should be reduced because the consequences are intended by Parliament should not be accepted. In that context, the applicant addressed the Minister's reliance on Stoneley v Minister for Immigration and Multicultural Affairs[107] and submitted that Stoneley is not authority for the proposition that the Tribunal should diminish the weight to be ascribed to the legal consequences of a decision. On the applicant's characterisation, Stoneley upheld a 'neutral weight' conclusion because the Tribunal had dealt elsewhere, in detail, with the statutory consequences faced by the applicant 'at a very personal level,' and the Court indicated the position might be different for a person facing prolonged detention because Australia owed them non-refoulement obligations. The applicant submitted that in the present case, Australia owes him non-refoulement obligations and he faces the prospect of detention and removal to an unknown third country.
The applicant, relying on NBMZ v Minister for Immigration and Border Protection,[108] further submitted that the Tribunal is required to consider both legal and practical consequences of the decision. The applicant also relied on remarks in Hands v Minister for Immigration and Border Protection[109] as emphasising that decision-makers must confront the human consequences of decisions and avoid mechanical or formulaic reasoning. The applicant submitted that an unsuccessful outcome would mean he is indefinitely at risk of detention, without merits review pathway or any other visa application to remain in Australia and living in fear of removal to a foreign country with which he is unfamiliar. It was submitted that the applicant would be subject to stringent visa conditions and asserted that non-compliance with some conditions may expose him to mandatory imprisonment even where some conditions are properly characterised as administrative. The applicant submitted that an unsuccessful outcome would permanently foreclose family reunion through sponsorship. The applicant also addressed the Minister's argument that any Resolution of Status pathway would be subject to further character assessment and submitted that, while such a scenario may be legally open, it is improbable.
The applicant also advanced submissions about potential third country removal, including by reference to his status as a 'removal pathway non-citizen' and the existence of third-country reception arrangement with Nauru. The applicant submitted that removal pathway direction cannot be given in relation to Afghanistan because of the protection finding, and that a BVR may cease if the holder has permission to enter and remain in another country that is party to a third country reception arrangement. The applicant submitted the Tribunal does not have detailed evidence about the terms of any arrangement with Nauru, and advanced submissions about potential hardship and the inadequacy of services in Nauru. He submitted that, even if no offer has yet been made to him, any offer may result in prolonged detention, and that the prospect of removal to another country is an adverse consequence warranting significant weight in favour of revocation.
In closing, the applicant submitted that the legal consequences of the decision 'are the single most important factor in these proceedings' and should be given the greatest weight. He reiterated the absence of family as a vulnerability factor and the stabilising value of family reunification as a dynamic protective factor. He also referred to a series of Federal Court decisions dealing with the Direction in the post-NZYQ context, namely CRRN, SSVJ, KFTJ, and DVRL. In substance, the applicant submitted, these decisions demonstrate that where a person will remain in the community regardless of the visa outcome, the decision-maker must grapple with the practical effect of visa status on risk and supports and must provide a rational link between findings about risk and a conclusion that cancellation will protect the community. The applicant relied on DVRL as authority that, depending on the case advanced and evidence adduced, the Tribunal may be required to engage in an evaluative comparison of risk and mitigation under different visa scenarios. The applicant acknowledged that the Minister has appealed DVRL but submitted that any appellate outcome will not dictate all cases as each case turns on its own evidence and merits.
I accept that the direct and immediate statutory consequences of the Tribunal's decision must be identified by reference to the circumstances at the time of decision, and that care is required not to treat contingent future events as though they are certain. I also accept that this does not exhaust the evaluative task required by the Direction for this consideration. The parties' common position is that the applicant is a BVR holder now and will remain a BVR holder in the community, at least immediately following the Tribunal's decision, on either outcome.
I do not accept that the Minister's invocation of legislative intent is, of itself, a reason to reduce or give neutral weight to this consideration where the consequences are adverse.[110] Consistently with the applicant's reference to Stoneley, the question is whether the Tribunal has genuinely confronted and evaluated the consequences for the person affected, rather than treating them as the neutral feature of the statutory architecture. I accept that applicant's reliance on NBMZ and Hands to the extent those authorities are invoked for the proposition that the Tribunal must confront both legal and practical consequences and must do so in a manner that addresses the human impact of what is being decided.
On the evidence before me, an unsuccessful outcome carries serious and enduring consequences for the applicant. Those include the continuation of residence on a BVR with continuing insecurity, together with the operation of statutory bars and foreclosures identified by the applicant in reply, including exclusion from any pathway leading to a Resolution of Status visa and permanent residency and denial of family reunion. To the extend those consequences follow by operation of the statute upon an unsuccessful outcome, I treat them as legally prescribed consequences of substantial gravity.
I also consider it necessary to address the applicant's submissions about third-country removal in light of the current statutory and policy settings. Since the hearing, the Parliament has enacted the Home Affairs Legislation Amendment (2025 Measures No. 1) Act (Cth), which relevantly alters aspects of the legal framework governing the country reception arrangements and procedures. Further, in August 2025, Australian and Nauruan governments publicly executed a Memorandum of Understanding (MoU) establishing third-country reception arrangements under which Nauru agreed to provide 'long-term settlement visas' for up to 100 people in return for Australian funding commitments.
Based on the limited evidentiary material before me, I am unable to make a finding about whether this applicant will in fact receive a third-country visa, the timing of any such event, or the precise conditions that would attach to any third-country status if granted. Those matters remain contingent. However, I do not accept that the possibility of third-country removal can fairly be treated as merely abstract or theoretical in the prevailing statutory and diplomatic environment. The enactment of the 2025 amendments and the MoU demonstrate that third-country removal is an operative policy pathway capable of practical implementation for the post-NZYQ cohort.
On that basis, the applicant's ongoing residence on a BVR is not merely uncertain in a general sense. It is a precarious legal status that carries with it the prospect of renewed detention and the potential for future removal processes to a third country. The existence of a realistic legal and practical pathway by which it may occur is itself a significant consequence. It is also a consequence that, on the evidence before me, is capable of operating as a continuing stressor that undermines the stability, future planning and rehabilitation that operate as protective factors for the applicant. I take that into account in assessing the gravity of the legal and practical consequences of the continued BVR status in the post-NZYQ environment.
I also accept that the applicant's submissions linking these consequences to the practical management of rehabilitation and stability, including by reference to Dr Wearne's evidence about family connection and future-oriented stability as protective factors. While that bears directly on the protection of the Australian community, it also illustrates the practical significance of the legal consequences for the applicant's capacity to maintain a structured and stable life.
For these reasons, I give this consideration significant weight in favour of revocation. The direct statutory consequences identified by the parties, together with the serious practical consequences of prolonging insecurity on a BVR and the now more concrete prospect of future third-country processes, are consequences of real gravity for this applicant and warrant substantial weight in favour of revocation.

[85]

I have found that the applicant does not pass the character test under s 501 of the Act. In considering whether I am satisfied that there is 'another reason' to revoke the cancellation decision, I have had regard to the specific circumstances relating to the applicant. I have also had regard to the considerations referred to in the Direction. The evaluative exercise of weighing up the factors in the Direction is not subject of some ritualistic formula.[113]
The Direction says that the protection of the Australian community is the highest priority of the Government. Paragraph 7(2) expressly states that Primary Consideration 1, protection of the Australian community, is generally to be given greater weight than other primary considerations and primary considerations should generally be given greater weight than the other considerations. However, ultimately, appropriate weight to be given to both 'primary' and 'other considerations.'
I have concluded that the offending was of a serious nature and there remains a low to moderate risk of reoffending. I have also found that the risk is meaningfully mitigated and capable of being managed in the community, but that this remains conditional upon the continuation of the current protective structures. I have given Primary Consideration 1 (the protection of the Australian community) moderately significant weight against revocation and Primary Consideration 5 (the expectation of the Australian community) significant weight against revoking the cancellation of the applicant's visa. By contrast, I have given Primary Consideration 3 (strength, nature and duration of the applicant's ties to Australia) moderately significant weight in favour of revocation. I have found that the other considerations, in particular the legal consequences of the decision, attract significant weight in favour of revocation. I have given neutral weight to the remaining considerations.
Having regard to all of the primary considerations and the relevant other considerations as a whole, I conclude that the considerations favouring revocation outweigh those against. I'm therefore satisfied that there is another reason to revoke the cancellation decision.

Legislation Cited (2)

Review Tribunal (Consequential and Transitional Provisions No. [1) Act 2024

Review Tribunal (Consequential and Transitional Provisions No.](/cgi-bin/viewdoc/au/legis/cth/num_act/artatpn1a2024807/index.html) [1) Act 2024

Cases Cited (27)

PHTP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2026] ARTA 60 (9 January 2026)

Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83

CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138

CRRN v Minister for Immigration and Multicultural Affairs [2025] FCA 192

Doan v Minister for Immigration and Multicultural Affairs [2025] FCA 1411

DVRL v Minister for Immigration and Citizenship [2025] FCA 876

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

FYBR v Minister for Home Affairs [2019] FCAFC 185

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225

Howells v MIMIA [2004] FCAFC 327; (2004) 139 FCR 580

Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2

JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2988

KFTJ v Minister for Immigration and Multicultural Affairs [2025] FCA 958

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

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

PHTP v Minister for Immigration and Multicultural Affairs [2024] FCA 1170

RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876.

SSVJ v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 954

Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143.

SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562

WVJB v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 320.

YMGL v Minister for Immigration and Multicultural Affairs [2025] ARTA 185

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

(2004) 139 FCR 580

(2006) 11 NSWLR 186

(2006) 11 NSWLR 18

(2003) 214 CLR 118