1. The Applicant has provided several statements in response to the notice of intention to refuse his visa on character grounds. These statements include his handwritten response to the notice of intention to refuse his visa dated 18 September 2024. In explaining his offending behaviour, the Applicant states:

I was unaware that the money was part of a scam and I did not realise I was supposed to report these unknown deposits to my bank. At the time, I was experiencing significant financial difficulties and was struggling with my mental health including stress, anxiety and depression. I also had high dependency on alcohol, which further impaired my judgement. Receiving this money fuelled my dependency because I received it at random and unplanned times and in this deception case me being under significant financial pressure and also the pleasure of having free money had me make poor decisions in those times of desperation. In believed that the money was legitimate and did not suspect any fraudulent activity ...

1. The applicant refers on other occasions to being unaware the money was 'part of a scam' that he was unintentionally involved in a scam.
2. He acknowledged at hearing that this statement is false and accepts he placed advertisements on Gumtree for animals he did not have and received money.
3. His explanation that he was under pressure when he made the statement does not excuse his deliberate untruthfulness and causes doubt about his oral testimony where this is not supported by other information.

1. The Applicant has applied for a Subclass 866 (Protection) visa which has been refused under s 501(1) of the Migration Act 1958 (Cth) (_'_Act'). Under s 36A of the Act, before refusing a protection visa, the Minister must consider and make a record of whether certain requirements are met for a protection visa.
2. Under s 501(1) of the Act the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
3. The character test is set out at s 501(6) of the Act and includes at s 501(6)(d)(i) that a person does not pass the character test if, in the event that the person were allowed to enter and remain in Australia, there is a risk that the person would engage in criminal conduct in Australia.
4. If the Applicant does not meet the character test, the remaining issue is whether his visa application should be refused.

ASSESSMENT OF WHETHER THE APPLICANT IS A REFUGEE

1. Under s 36A of the Act, where a person has made a valid application for a protection visa, the Minister must consider and make a record of whether the Minister is satisfied of certain requirements for a protection visa set out in s 36 of the Act.
2. This includes at s 36A(1)(a) of the Act, a record of:
   • whether the person is a person in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee in accordance with s 36(2)(a) of the Act, and
   • whether the person meets the requirement in s36(1C) of the Act that the person is not a person in respect of whom the Minister considers on reasonable grounds is a danger to Australia's security or, having been convicted of a particularly serious crime is a danger to the Australian community.
3. The Minister is required to do so before deciding whether to grant or refuse the visa and, among other things, before considering whether the grant of the visa is prevented by any provision of the Act or regulations (s 36A(2) of the Act).
4. In this case, the Minister provided a file note which states the Applicant is 'indicatively found to be a refugee'. This document does not show the Minister has considered or made a record of whether the Applicant meets s 36(2)(a) or s 36(1C) of the Act and does not comply with the statutory obligation in s 36A of the Act.
5. The Minister was asked to provide further information and submissions on how the file note addresses the requirements of s 36A of the Act. In response, the Minister produced a document with a 'draft' watermark that records that the Applicant meets s 36(2)(a) and also satisfies the criterion in s 36(1C) of the Act, together with a screen shot of the Department's case recording system that states the Applicant is 'indicatively found to be a refugee'. The Tribunal was advised that once a delegate reaches this stage of the process, they stop considering the matter further, and it remains recorded as a 'draft' and indicative finding.
6. Whether or not this is the administrative practice, s 36A requires a written record of a state of satisfaction. A 'draft' document and an 'indicative' finding do not record this state of satisfaction.
7. While the requirements in s 36A have not been addressed, there is a protection finding for the purposes of s 197C, which at 197C(5)(a) includes an implied state of satisfaction that the person meets s 36(2)(a) and s 36(1C) of the Act. This is relevant to the legal consequences of the decision to reuse the Applicant a protection visa.
8. Failing to meet s 36A of the Act, while failing to comply with a statutory duty, does not affect the validity of the decision to refuse the Applicant's visa, and as a result the Tribunal must proceed to review the decision.

1. The Applicant objected to material summonsed from the Department of Child Protection ('the Agency'). This was because with the agreement of the Agency the Respondent limited the scope of the summons, so that 'the documents required should pertain to information that will assist in demonstrating that the applicant ([name]) is not a safe person to be around children'.[1]
2. The Applicant argues that the Agency did not comply with the summons issued by the Tribunal, and documents that were exculpatory may have been excluded. The Applicant also submitted that the Respondent had failed in his obligation to use his best endeavours to assist the Tribunal to make the correct or preferable decision and to assist the Tribunal to meet its statutory objective.
3. The Tribunal is not bound by rules of evidence and may have regard to information that may be relevant to the decision that is under review (Pochi v Minister for Immigration and Ethnic Affairs [1979] AATA 64, Brennan J). The weight the Tribunal places on that evidence is another matter. The Applicant did not seek to obtain any other evidence from the Agency, and instead invites the Tribunal to speculate that there may be exculpatory information.
4. As the information provided by the Agency is relevant to other conduct of the Applicant and the best interests of children affected by a decision to refuse the visa, the Tribunal has had regard to the records summonsed. These records have been considered in light of the statements of the Applicant and Ms AC and their oral evidence.

1. The character test is set out in s 501(6) and includes at s 501(6)(d)(i) that a person does not pass the character test if, in the event that the person is allowed to enter or remain in Australia, there is a risk the person would engage in criminal conduct in Australia.
2. The Minister has issued Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA ('the Direction'). It is expressed to apply to the Administrative Review Tribunal in making a decision under s 501 or s 501CA of the Act. Annexure A to the Direction includes an explanation of various aspects of the character test. This states at paragraph 6(2) and (3):

(2) The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.

(3) It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.

1. An Applicant must satisfy the Minister that they meet the character test, and the onus lies on the Applicant in that respect. This involves persuading the decision maker that they will not engage in criminal conduct: Singh v Minister for Immigration for Citizenship and Multicultural Affairs [2023] FCAFC 46 per Mortimer J at [6].
2. The Applicant argues that he does pass the character test because he has undertaken rehabilitation, has factors in his life that act to protect against reoffending, is abstaining from alcohol, and receives financial support and counselling. It was submitted that his risk of reoffending was no more than minimal or trivial.
3. The sentencing remarks of Magistrate Pandya identified loss of income as a factor in his offending. The Applicant stated that at the time of his offending he was struggling with his mental health and dependency on alcohol. It follows that these are factors that increase the risk he will engage in criminal conduct.
4. The Applicant has had some counselling while in immigration detention, and a letter from Clinical Psychology Registrar Ms Sassi states she has seen the Applicant twice regarding psychological strategies to assist with drug and alcohol abstinence.[2] Her report is brief and regarding treatment, states in its entirety:

As requested sessions have focused on strategies via a Cognitive Behavioural Therapy (CBT) approach with [the Applicant] showing good understanding and insight as well as articulated commitment to abstinence and reasons for same. This is in light of his recognition of the costs and consequences of his alcohol and drug use in the past.

1. Ms Sassi says that his risk of reoffending falls in the low range, with this being the lowest category. Ms Sassi did not give evidence, and her report does not state how she formed this conclusion.
2. The Applicant has had some counselling after being released from immigration detention, having had one session at the time of his statement, at which he discussed coping mechanisms for stress. He has completed a course 'AVERT Family Violence Fundamentals', and four sessions of the SMART recovery program. The Applicant said he completed the AVERT course in eight hours on one day, learning coping mechanisms for stress such as a cold shower, controlling his breathing and having a pet cat. He refers enrolling in a Men's Behaviour Program, but did not provide evidence of attending this program. The Applicant has completed a number of courses through the Church of Scientology.
3. He claims current protective factors are being able to access Centrelink payments on his BVR and having temporary housing St Vincent's men's centre. He has plans for the future and wants to further his studies at TAFE or university. He has completed a 'Prepare to work safely in the construction industry' course and enrolled in a forklift course. He has started attending church and playing soccer. He plans to see a doctor and continue counselling.
4. The Applicant has been in the community since 16 April 2025 and has not come to the attention of police in that time. While this is to his credit, he has been in the community for a limited period with the spectre of a decision on the refusal of his visa on character grounds. He is also subject to the conditions of a BVR.
5. Psychologist Mr Watson-Munro gave evidence that the Applicant is a cooperative but psychologically troubled man. He is described as having taken positive steps to address the factors that led to his offending, including separating from Ms AC as she had continued to drink. Mr Watson-Munro stated the Applicant continues to suffer symptoms of anxiety and depression and has low self-esteem. Mr Watson-Munro stated that with continued support, supervision and treatment the risk to the Australian community of the Applicant reoffending is trending from moderate to low.
6. In oral evidence, Mr Watson-Munro described the Applicant as in partial remission from alcohol abuse, having been abstinent for a period of approximately six months. Mr Watson-Munro explained that a period of two years is full remission of this condition. While the early signs are promising for the Applicant, Mr Watson-Munroe said there is more work to do before his rehabilitation could be considered complete.
7. The Applicant said he last had a drink of home brew beer while in immigration detention in December 2024 and has been abstinent for six months; a quarter of the period Mr Watson-Munro considers necessary.
8. The Applicant is in the early stages of establishing himself in the community. He is in temporary housing and is looking for ongoing housing. He will face financial pressure while reestablishing himself, which was a component of his prior offending. He is in the early stages of rehabilitation for his alcohol use, which was also identified as a risk for his offending, particularly in relation to driving offences and his interaction with police. There is a risk of reoffending in the form of driving or disorderly behaviour offences.
9. Much was made of potential future offences relating to family violence in this matter, however it is unnecessary to consider this further at this stage as there is a risk of criminal conduct that is unrelated to family violence.
10. As there is a risk, which is more than minimal or remote, that the Applicant will engage in criminal conduct, he does not pass the character test as set out in s 501(6)(d)(i) of the Act. The remaining issue is whether his visa application should be refused.

1. The Minister has issued Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA ('the Direction'). It is expressed applies the Administrative Review Tribunal in making a decision under s 501 or s 501CA of the Act, and I must comply with the Direction.

1. Paragraph 5.2 of the Direction provides principles to provide a framework to approach decision making. These are:

(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.[3]

1. The Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:

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

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

(3) One or more primary considerations may outweigh other primary considerations.[4]

1. The Direction contains five primary considerations, which are:

(1) The protection of the Australian community from criminal or other serious conduct; > > (2) Whether the conduct engaged in constituted family violence; > > (3) The strength, nature and duration of ties to Australia; > > (4) The best interests of minor children in Australia; > > (5) The expectations of the Australian community.[5]

2. The Direction contains three other considerations, which are the legal consequences of the decision, the extent of impediments if removed, and the impact on Australian business interests.

1. The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens, and entering or remaining in Australia is a privilege conferred in the expectation that non-citizens are and have been law abiding, respect important institutions and will not cause or threaten harm to individuals or the Australian community.[6]
2. Decision-makers should also consider the nature and seriousness of the conduct to date and the risk to the community if the Applicant commits further offences or engages in minor serious conduct (paragraph 8.1(2) of the Direction).

1. The Direction provides factors the Tribunal must consider when examining the nature and seriousness of the criminal offending or other conduct to date.[7]
2. The Applicant's criminal offending is described above and comprises four counts of deceiving another to benefit self, failing to comply with breath analysis directions, drive under disqualification or suspension and disorderly behaviour.
3. The Minister relies on conduct which it is submitted constitutes family violence. Family violence is defined in paragraph 4(1) of the Direction as violence, threatening or other behaviour that coerces or controls a member of the person's family or causes them to be fearful. In this context, a member of the person's family is further defined as including a person who has, or has had, an intimate relationship with the relevant person.
4. The Applicant submits that given the gravity of the consequences, any conduct that could be construed as family violence should be established on a higher level of satisfaction consistent with Briginshaw v Briginshaw [1938] HCA 34. In Briginshaw Dixon J stated:

The seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such cases 'reasonable satisfaction' should not be produced by inexact proof, indefinite testimony, or indirect inferences.

1. The proposition that Briginshaw contained principles that bind the Tribunal was rejected by the Full Court of the Federal Court in Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 (per Flick and Perry JJ [120] - [122]. While the principles in Briginshaw can provide assistance in determining issues, the Tribunal is not bound to these principles or the provisions in the uniform Evidence Acts which reflect them (WKBF v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3728 at [16]).
2. The Direction refers to conduct which is defined in paragraph 4(2) as including behaviour or conduct of concern that does not constitute any criminal offence. This is capable of including acts of family violence as defined in the Direction. The consequences of refusing a protection visa are significant, however family violence is only one of many factors specified in the Direction and may be attributed appropriate weight by a decision maker. This requires the Tribunal to be satisfied that the conduct has occurred and to assess the conduct correctly but does not require any higher level of satisfaction or proof.
3. The Applicant acknowledges that some of his conduct constitutes family violence.
4. Details of police reports, reports from the Agency, and the Applicant's statements to his psychologist were put to the Applicant in cross-examination. The Applicant acknowledged that there was violence in the relationship. This included that:
   • Police were called when he was locked out of the house because he was drunk and creating a disturbance;
   • Three days later two bags of cannabis were taken from him after the police were called to a disturbance;
   • On 13 November 2021 he broke a bedroom window to get into the house; and
   • He has pushed Ms AC and hit her with a small stick.
5. The Applicant told his psychologist Mr Watson-Munro that he has issues with domestic violence.
6. The Applicant said both he and Ms AC had problems with alcohol, and by the end of the day, there would be verbal violence with shouting and things being thrown around. He then said Ms AC would shout and he would leave the house. He said Ms AC would get violent and grab objects like a broom and hit him, and that he would push her or grab a stick to get her to stay away.
7. He specifically denied incidents in police records in which Ms AC is recorded as having a bruise on her cheek and telling the police that the Applicant caused the bruise and had threatened her.
8. The Applicant did not answer certain questions on the basis that the answer may incriminate him. An adverse inference cannot be drawn from him failing to answer these questions (Dolan v Australian and Overseas Telecommunications Corporation (1993) FCR 206). However, this leaves unexplained the allegations in the police report and from the Agency that he pushed food into Ms AC's face. Ms AC stated in her evidence that this did not occur. He denied punching biting or choking Ms AC as recorded in by police and the Agency.
9. The Applicant's former partner Ms AC gave evidence to the Tribunal. Her first language is not English, and it became apparent the interpreter available on the first day of the hearing was related to her. The hearing was adjourned to obtain a different interpreter. There are a very limited number of interpreters available in Ms AC's first language, and the interpreter arranged the second day withdrew at short notice. Another interpreter was made available through the Telephone Interpreter Service however this interpreter was male. Following an adjournment to allow her to confer with the instructing solicitor, Ms AC elected to give evidence in English on the understanding that we could call the interpreter in at any time. While not ideal, this is a time limited review and having made its best endeavours to locate a suitable interpreter, the Tribunal proceeded as best it could. The Tribunal was assisted by both counsel making their questions short and clear. Ms AC did not appear to have difficulty expressing herself in the hearing, and provided clear answers to the questions asked of her.
10. Ms AC said there was violence in the relationship and that she had reported incidents to the police, but the violence also came from her and her reports to police were not true. She said she did not get on well with one of the child protection workers and felt uncomfortable speaking to her because the worker said the children were not safe and may be removed. Ms AC said she drank too, which is why the children did not want to return to her care and not because they were frightened of the Applicant as recorded by the Agency.
11. Ms AC said that the Applicant would push or slap her and hit her with a small stick. She said she made up stories to police because she wanted to be free and wanted a break. She said the report in August 2021 that she had a bruise her cheek from the Applicant was not true, and it was also not true that he rubbed food in her face, pinched her, or bit her. She said when she was fighting with her daughter, he tried to protect her daughter and pushed her daughter to frighten her away from Ms AC. She said he had not put his hands around her throat, and that she was the one who was violent when she was drunk. She said the only time he hit her with a stick was when she used a weapon on him first, and she always hit him first.
12. Ms AC said she told police the Applicant punched her and pulled her hair because she was angry at him. She said the Applicant has not forced himself on her as reported by the Agency, and that she told the police a story that was not true about a cut on her head.
13. When asked, Ms AC said her aunty told her to tell police what she said was not true because her aunty thinks the Applicant is a good man and they should look after each other. She said the Applicant has not told her to withdraw her claims to police. The Applicant denied asking Ms AC to tell police the reports were not true.
14. Ms AC said they are having a break in the relationship but still help each other and they will recommence their relationship when she gets housing as she cares for him and loves him. She is currently living with either her aunty or her older sister with her youngest child as she does not have any housing. Her older children and granddaughter are living with their father in the Northern Territory.
15. It is always a delicate balance when a person who is said to be the victim of family violence gives evidence in support of the alleged perpetrator. There are many factors that may bring pressure to bear on an alleged victim that cannot be known to the Tribunal. However, Ms AC readily stated that some acts such as pushing, slapping, and hitting her with a stick had occurred. As she acknowledged some acts of family violence did occur, this provides a basis to accept her evidence that other reported incidents of family violence did not occur. I am not satisfied on the information before me that incidents denied by Ms AC occurred.
16. However, there is sufficient information before me from the Applicant's oral evidence, his reports to Mr Watson-Munro, Ms AC's evidence, the police reports and the reports of the Agency to show that some of the Applicant's conduct includes family violence. That the Applicant felt justified in his actions due to the actions of Ms AC does not detract from his own conduct. Ms AC's evidence that she was also drinking and was aggressive to the Applicant also does not detract from an assessment that the Applicant's conduct included acts of family violence.
17. Acts of family violence, regardless of whether there was a conviction for an offence, or a sentence imposed are regarded very seriously by the Australian Government and the Australian community (paragraph 8.1.1(a)(iii) of the Direction)
18. The sentence imposed by the court for the public disorder offence and driving offences have been fines and licence disqualification. The custodial sentence imposed is a sentence of imprisonment for five months.
19. There is no information before me of the effect on the victims of the Applicant's offending. Ms AC did not provide oral evidence of the effect of the Applicant's conduct on her, but did include in her statement that she was not frightened of him.
20. The Direction also requires a consideration of the frequency and cumulative effect of offending. The Applicant's criminal offending is infrequent, and due to the low number of offences, there is minimal cumulative effect. There is no information to show he has provided false or misleading information to the Department, and he has not re-offended since being warned of the consequences of further offending.
21. The nature and seriousness of his conduct is at the lower end of the spectrum with few convictions and only one set of offences attracting a custodial sentence which is relatively short. The nature and seriousness of the conduct weigh somewhat in favour of refusing to grant the Applicant a protection visa.

Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

1. The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of the Direction states, in part:[8]

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

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

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

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

1. information and evidence on the risk of the non­citizen re-offending; and
2. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). ...

1. This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[9] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[10]

1. To determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[11]
2. The type of harm that would be caused if the Applicant's criminal or other conduct is repeated comprise danger to other road users, financial loss to members of the community, and potential harm to a domestic partner in the form of pushing, slapping, breaking objects or windows and verbal abuse.

Likelihood of the non-citizen engaging in further criminal or serious conduct

1. Given the consequences of the offence of deceiving another to benefit was a term of imprisonment, it is unlikely that the Applicant will again engage in this type of offending.
2. The prognosis is less certain for alcohol related offences as he has suffered from alcohol abuse and is in the early stages of rehabilitation. It is the mechanism he has used to cope with circumstances in his life, and while he will not face the same stressors of his sexual orientation becoming known to his parents, he will face day to day stressors of managing in the community, presently on a very limited income. He does not yet have stable housing. If his relationship with Ms AC resumes or he enters a relationship with another person, he will face the stressors of a relationship. Both the Applicant and Ms AC state that jealousy played a large part in arguments between them on which their behaviour deteriorated, and this remains a prospect in future relationships.
3. His engagement in rehabilitation for his use of alcohol is encouraging but has not progressed to the stage where this condition is in remission, with Mr Watson-Munro stating he is a quarter of the way to remission having been abstinent from alcohol for approximately six months. He has engaged in rehabilitation courses such as the SMART recovery course and has had some counselling sessions and intends to undertake further counselling in the community.
4. The Applicant referred to being in receipt of a regular income through Centrelink payment and his relationship with Ms AC's children as factors that act to support him in the community and reduce his risk of engaging in further criminal or other serious conduct. He has undertaken further training to obtain work.

Conclusion on the protection of the Australian community

1. While not understating the harm caused by family violence, the Applicant's actions are at the lower end of the spectrum. He has undertaken rehabilitation and has good early progress, however he is in the early stages of his rehabilitation, and it is uncertain if his current behaviour can be sustained.
2. Overall, the protection of the Australian community weighs in favour of not granting the visa.

1. Paragraph 8.2 of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia, and the Government's concerns are proportionate to the seriousness of the family violence.
2. In this case there is information from independent and authoritative sources, being police records and records from the Agency indicating the Applicant has engaged in acts of family violence. There have been charges laid against him for acts of family violence that were later withdrawn. These records were provided to the Applicant, and he was taken through them in detail in cross-examination.
3. The individual acts of family violence that were established were infrequent and occurred in a context of alcohol abuse and conflict with Ms AC. There is some cumulative effect to these repeated acts, but not to any significant degree.
4. The Applicant states he was effectively acting in self-defence which does not show he accepts responsibility. However, he has taken the step of taking a break from the relationship, which he says occurred because Ms AC has continued to drink alcohol. There appears to be continuing issues regarding jealousy, with the Applicant suspecting Ms AC of being unfaithful while he was in immigration detention. The Applicant has a limited understanding of the effect on the children of witnessing acts of family violence and portrays himself as the person who was assisting the children.
5. The Applicant is taking steps to address factors that led to his conduct, undertaking a course in family violence and taking steps towards addressing his alcohol abuse.
6. This factor weighs moderately in favour of refusing his application for a protection visa.

THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

1. This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant's ties to Australia. Paragraph 8.3 of the Direction requires a consideration of the person's immediate family members who are Australian citizens, permanent residents or who have a right to remain indefinitely in Australia.
2. The Applicant arrived in Australia in December 2019 and commenced a relationship with Ms AC in 2021. He is currently separated from Ms AC and refers to his relationship with her children as being their stepfather, and his relationship to her granddaughter as being a step grandfather.
3. Three of Ms AC's children and her grandchild live in Alice Springs, and the Applicant has contact with them by telephone. Ms AC states she wants the Applicant to attend her sons' initiation ceremonies, however the views of the children are not known. Ms AC's eldest daughter has been a protected person under the intervention order and was reported to have concerns about the Applicant's behaviour towards her mother. This followed an incident where there was a dispute about the daughter returning to the Northern Territory. According to the Applicant, the daughter threw a glass decoration or ash tray at the television which broke. Ms AC was angry about the television, and the Applicant said he pushed the daughter to separate her and Ms AC as a means of protecting her. While not entirely consistent with the police report, this account is consistent with Ms AC's oral evidence and the description of the level of chaos in the household.
4. The Applicant has continued contact with Ms AC's youngest child including collecting her from school when Ms AC is unavailable and assisting with her care if Ms AC asks for his assistance. She will seek his help if she obtains further housing, as she says he is good at maintaining the house.
5. The Applicant has some ties with Ms AC's aunt and siblings however, the nature and extent of these ties is uncertain as her aunt and siblings did not provide statements to the Tribunal. He also refers to ties to the Marjara and Warlpiri communities but did not provide further evidence in support of ties with these communities.
6. The Applicant provided a letter of support from the President of the Kenyan Association who says he has participated in community events. He is also supported by the African Community Council, however his involvement in this association is unclear. His former neighbour stated they had some social interaction. He was employed as a personal care worker from December 2020 to October 2021. He has recently started attending church and playing soccer.
7. The Applicant has some ties to the Australian community, and this weighs moderately in favour of not refusing to grant him a protection visa.

BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

1. Paragraph 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision.
2. The Agency records express concern about the welfare of the children due to domestic violence, alcohol abuse and non-attendance at school. There are reports of fighting and alcohol abuse in the home.
3. Ms AC said some of the incidents reported in the Agency case notes were not correct. Other reports are consistent with Ms AC's oral evidence that both she and the Applicant were drinking and fighting, and that she also hit, bit and pushed the Applicant and had hit him with household objects like a frying pan. The children are reported as also living intermittently with others such as an aunt and a cousin in the period the Applicant and Ms AC lived together
4. Ms AC's eldest child has recently turned 18 years of age and is living in the Northern Territory with her daughter. Ms AC's two sons also live in the Northern Territory with their father and his family. Ms AC's youngest child lives with her, and the Applicant visits the youngest child.
5. The Applicant contacts the older children and Ms AC's granddaughter through electronic means but has not seen them in person since he was taken into immigration detention. Ms AC said he helps her daughter financially by buying nappies. Ms AC wants him to be present for both of her sons' initiation ceremonies.
6. The Applicant's current relationship with the older children and Ms AC's granddaughter is quasi parental. He keeps in contact with them and wants to attend the initiation ceremonies. The likelihood of the Applicant playing a positive parental role will depend on whether the children return to the care of their mother and whether both the Applicant and their mother cease drinking.
7. In cross-examination, Ms AC said that while she told the Agency the children did not want to return to live with her because of the Applicant, instead it was her problems with alcohol that led to the children not wanting to return. She says that when she obtains housing they may return to her care.
8. The Applicant's relationship with Ms AC's youngest child, who is eight years old, is closer than the other children. He has known her since 2021 when she was four years old. When he was living with Ms AC, the Applicant played a parental role. He currently assists with her care by collecting her from school when Ms AC is not available. Ms AC's youngest child has parental care from her mother and aunty. She has been exposed to the Applicant and Ms AC drinking and being abusive to each other. Ms AC's youngest child has a biological father, and her siblings live with their father. There is no direct information before me about physical or emotional trauma suffered by this child arising from the Applicant's conduct. It is accepted the Applicant has a relationship that is parental with Ms AC's youngest child and assists in her care.
9. Overall, the children are affected by alcohol use of many of the people in their lives. Given the role of the Applicant in the previous care of the children and his ongoing role for the youngest child, the best interests of the children are that he remains in Australia. This is stronger for the youngest child.
10. This attracts some weight in favour of not refusing to grant the visa.

1. The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that 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.
2. Paragraph 8.5(2) 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 the offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. This includes an expectation that a visa should be cancelled if they raise serious character concerns because of acts of family violence.[12]
3. 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.
4. This consideration weighs in favour of not granting the Applicant a visa. However, having taken into account the nature of the offending and sentences imposed, this attracts only slight weight.

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

Legal consequences of decision under s 501 or 501CA

1. 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.[13]
2. In general, if a person is an unlawful non-citizen, the person must be detained under s 189 of the Act and must be removed from Australia in accordance with s 198 of the Act.
3. Under s 197C of the Act, for the purposes of removal under s 198, it is irrelevant whether Australia has non-refoulment obligations. However, under s 197C(3) of the Act, the duty to remove does not require or authorise removal if the Applicant has made a valid application for a protection visa and in the course of determining the application a protection finding was made.
4. A protection finding has impliedly been made within the meaning of s 36(2)(a) of the Act, and the Applicant cannot be removed from Australia unless he is found to no longer be owed protection, or he can be removed to another country. If there are no reasonable prospects of removal, he cannot be detained (NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37). As a result, the Applicant has been released into the community on a BVR and will not be indefinitely detained.
5. As the holder of a BVR, the Applicant is defined as a 'removal pathway non-citizen' in s 5(1) of the Act.
6. A person who is a removal pathway non-citizen and who cannot be removed because of a protection finding can be given a removal pathway direction if the person can be removed to another country (s 199B of the Act).
7. Under s 76AAA, if a person who holds a BVR is given permission to enter and remain in another country and that country is subject to a third country reception arrangement, their BVR will cease and as an unlawful non-citizen are liable to being detained under s 189 of the Act.
8. The Applicant argues that because an interim third country arrangement has been made with Nauru, Nauru should be assessed as a potential country to which the Applicant will be removed, and particular examination should be given to the conditions in Nauru for a person who is bisexual.
9. The Applicant provided information on the poor economic circumstances for people in Nauru, but did not specify how this may apply to him. He refers to limited health services in Nauru, but does not state how this relates to his specific circumstances. He claims that Nauru is not a safe place for people with are LGBTQ as homosexuality was decriminalised in 2016 and same sex unions remain unlawful and there are no protections against discrimination because of sexual orientation. He submits there are reports of harassment of refugees and asylum seekers.
10. The Minister did not provide further information on any third country reception arrangements. The submissions of the Minister are that there are no third country reception arrangements between the Commonwealth and Nauru that have been made for the purposes of s 198AHB, with the only third country reception arrangement applying to three specific non-citizens. The Minister submitted that the Tribunal is not required to speculate about future possibilities and relied on authorities on speculating about the possible outcome of a future visa application (Ali v Minister for Immigration and Border Protection [2018] FCA 650, DOB18 v Minister for Home Affairs [2018] FCA 1523).
11. There is no other evidence before me that a third country reception arrangement that applies more broadly has been entered. The Minister was invited to provide any further submissions on likelihood of this power being exercised, the degree of risk of it being exercised, or documents regarding any agreements that exist, however submitted that it was an exercise in the Tribunal speculating and did not provide anything further. I accept that speculating that an arrangement will be entered, or that it would be entered with Nauru, or that any such arrangement would include the applicant does not assist me in making a decision in this matter.
12. It does not prevent me looking at the immediate legal consequences of the decision, which include that the Applicant remains liable to being given a removal pathway direction and the effect of such a direction. Moshinsky J in TCXM v Minister for Immigration and Multicultural Affairs [2025] FCA 540 ('TCXM') described the arrangement with Nauru for the three specific non-citizens an 'interim' arrangement with Nauru and found that this was the exercise of a non-statutory prerogative power (at [118]).
13. The interim agreement referred to in TCXM includes terms that relate Nauru to complying with international legal requirements and states it prohibits chain refoulment, or returning a person in Nauru to a country in respect of which the person has been found to be a refugee.
14. A permission must be granted by a country subject to a third country reception arrangement before a non-citizen can be removed to that country. Moshinsky J found that the decision to apply for a permission on behalf of a removal pathway non-citizen isnot a decision where the person is required to be afforded procedural fairness (at [152]).
15. There are other decisions that would have to be made before the Applicant could be removed to a third country; or, if a third country reception arrangement were to exist with Nauru, to be removed to Nauru. However, these steps could occur without the Applicant being given a further opportunity to present his case.
16. The legal consequences of the decision are that the Applicant:
    • would be granted and hold a BVR subject to conditions,
    • is subject to the prospect of being removed from Australia,
    • BVR will cease if he has permission to enter and remain in a foreign country with whom there is a third country reception arrangement,
    • will be detained under s 189 of the Act if his visa ceases; and
    • can be removed to a third country without any further opportunity to present reasons why he should not be removed to that country.

1. The immediate legal consequence of refusing his application for a protection visa is that the Applicant was granted a BVR and is subject to the conditions of a BVR. These conditions do not apply to the Subclass 866 visa for which he has applied. The conditions include that he does not engage in certain activities or occupations, that he reports as directed, and that he notifies of changes to his address or employment. He must notify of interstate or overseas travel and notify of contact with people who he knows have been charged with or convicted of a criminal offence.
2. A breach of a condition of the BVR can result in the cancellation of the BVR under s 116(1)(b) of the Act. However, as there will continue to be no reasonable prospects of removal, this leads to a cycle where he would again have to be released from immigration detention.
3. A breach of a monitoring condition of his BVR as defined in s 76B(4) of the Act is an offence punishable by a term of five years imprisonment. Many of the conditions on the Applicant's visa are monitoring conditions require him to report every day, to notify of any change to his employment details, to notify of interstate or overseas travel, to notify of contact with a person known by the visa holder to have committed a criminal offence and to notify of changes to his personal details. Other ongoing conditions imposed on his BVR are the requirement to attend an interview if directed, report for removal from Australia, and to facilitate his removal from Australia. A legal consequence of the decision is that he is required to comply with conditions on his BVR, a breach of which may result in a term of imprisonment for five years or a fine.
4. If the Applicant is not granted a permanent visa, the Applicant will not be eligible for services that require him to be an Australian citizen or permanent resident such as the National Disability Insurance Scheme and some Centrelink payments. There is no information to show he would be eligible for the National Disability Insurance Scheme, and this does not apply. He will not be eligible for some Centrelink payments.
5. The legal consequences for the Applicant are that he is subject to the conditions of his BVR and faces ongoing uncertainty about his ability to remain in Australia. If a decision is made to remove him to a country where a third country reception arrangement is made, he will not have further opportunity to present information about his circumstances. This includes the opportunity to make submissions that removal to Nauru or another country will cause him particular hardship or place him at risk of significant harm due to his sexuality.
6. Other legal consequences of a decision to refuse to grant the Applicant a visa under s 501(21) of the Act are that he cannot apply for another visa while in Australia other than a BVR, (s 501E of the Act), and he will be barred from making any further applications for a protection visa (s 48A of the Act).
7. The legal consequence of the decision weighs heavily in favour of not returning to grant the Applicant a protection visa.

1. The Tribunal must consider the extent to which the Applicant would face an impediment or impediments if removed from Australia to their home country, in establishing themselves and maintaining basic living standards taking into account the Applicant's:
   • age and state of health,
   • substantial language or cultural barrier; and
   • social, medical and/or economic support available to them in that country.
2. The Applicant stated he fears persecution if he returns to Kenya due to his sexual orientation. The Department has made an indicative finding that he is a refugee, and the draft decision record accepts his claims to fear harm if returned to Kenya. It follows the extent of the impediments if returned to Kenya are very high. However, as the Applicant is subject to an implied protection finding, there is no obligation to remove him from Australia unless a finding is made that he is no longer owed protection. It was submitted that he may feel compelled to return to Kenya if the alternative is removal to Nauru, however no further information was provided that this would be an outcome for the Applicant, nor that this would be what he would choose.
3. While the extent of impediments contemplated by the Direction are impediments in returning to the person's home country, this is also a convenient point to address the Applicant's claims to impediments he will face if he is sent to Nauru. The Applicant submitted the impediments to him being removed to Nauru must be considered as Nauru is the only country to which there is any prospects of him being removed as a removal pathway non-citizen. He submitted that Nauru has a high incident of food poverty and there is inadequate healthcare. It is claimed that Nauru is not a place that is safe for homosexual people and same-sex unions remain illegal. The are reports of violent attacks by members of the Nauruan community against refugees and asylum seekers, and law enforcement has been claimed to be a means to intimidate refugees and asylum seekers. It is submitted that he would be at risk of being returned to Kenya by Nauru or feel compelling to return to Kenya if he would be sent to Nauru.
4. The Amnesty International report information relied on by the Applicant[14] is from 2016 and details circumstances for people who were subject to the offshore processing and the circumstances are not the same as those of the Applicant. The source material to support the Applicant's claims about the views of the Nauruan President was not provided to the Tribunal. Citations that were provided to support to submission that the Nauruan President had said visa holders could be returned to their country of origin were not accessible to the Tribunal. While I accept that the circumstances for the Applicant will be less favourable if he were to be removed to Nauru, this remains speculative in the absence of further information.
5. While I give this factor some weight, the weight is limited due to the lack of certainty of removal.

1. Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
2. There is no information to show how that there would be an impact on Australian business interests if the Applicant is not granted a protection visa.

1. The Applicant stated he was attacked while he was in immigration detention, suffering a laceration to his cheek which required stitches and has suffered trauma as a result. While this incident would be traumatic, it does not weigh for or against granting or refusing to grant a protection visa.
2. Other considerations the Applicant raised, such as that he is a refugee, that he is tied to and reliant on the Australia community, and that his removal from Australia will result in a high risk of significant harm to him due to his sexuality have been considered above and do not require further consideration.

1. The Applicant has committed several offences, for which the most significant sentence is imprisonment for five months. He has not been convicted of any family violence offences but concedes that his conduct includes acts of family violence.
2. His offending is at the lower end of the spectrum, with the risk to the Australian community accordingly low, and the protection of the Australian community weighs slightly in favour of not granting him a visa. That his conduct includes family violence weighs against him. The expectations of the Australian community weigh slightly in favour of refusing to grant the visa.
3. The best interests of children weigh somewhat in favour of not refusing to grant the visa, and his ties to the Australian community weigh moderately in favour of not refusing to grant the visa. The legal consequences of the decision weigh heavily in favour of not refusing to grant the visa. The extent of impediments if he is removed from Australia weighs slightly in favour of not refusing the grant of the visa, and the impact on Australian business interests is neutral.
4. Looking at the circumstances wholistically, the Applicant's offending is at the lower end of the spectrum. He has complex family circumstances and continues to provide support of a parental nature to at least one of Ms AC's children and maintains contact with her other children and grandchild. His ties to Australia and the best interests of children weigh slightly in favour of not refusing to grant the visa.
5. Generally primary considerations are to be given greater weight than other considerations, and the protection of the Australian community is to be given greater weight than other primary considerations. However, in this case the legal consequences of refusing his visa application, given he has impliedly been found to be a refugee, weigh heavily in favour of not refusing to grant the visa, and together with the best interests of the children and his ties to Australia outweigh the other considerations in favour of not granting him a visa.
6. As a result the decision under review should be set aside and substituted with a decision that the visa is not refuse under s 501(1) of the Act.

1. The decision under review is set aside and substituted with a decision that the visa is not refused under s 501(1) of the Migration Act 1958.

[2] The report of Ms Sassi refers to a name which is the Applicant's middle name, and it is assumed this is the Applicant.

[8] See also the Direction, paragraph 8.1(2)(b).

[14] Amnesty International, Island of Despair: Australia's "Processing" of Refugees on Nauru, (Report, October 2016).