1. The evidence was contained in a Hearing Book (HB)[1] and a Supplementary Hearing Book (SHB)[2] prepared by the Minister.
2. The HB included:

(1) The "G-Docs",[3] which relevantly included but were not limited to: > > (a) a Check Results Report of the Australian Criminal Intelligence Agency dated 11 March 2025, setting out the applicant's criminal history (Check Results Report);[4]

(b) NSW Police Facts Sheets relating to the applicant's driving offences and conviction for common assault;[5]

(c) a letter of Corrective Services NSW dated 11 July 2025 indicating the applicant's "low risk of reoffence";[6]

(d) statements of the applicant respectively dated 11 July 2025, 6 September 2023, 14 July 2025 and 9 March 2018;[7]

(e) the applicant's Personal Circumstances Form dated 14 July 2025;[8]

(f) the applicant's GP Mental health Care Plan dated 28 June 2025;[9]

(g) an ASPIRE Traffic Offender Course Local Court Report dated 8 September 2023, together with a Certificate of Completion;[10]

(h) a report of Dr Kala Ram, psychologist, dated 16 August 2025 and Dr Ram's CV;[11]

(i) character references of the applicant's brother, Mr Bikash Pokharel,[12] sisters- in-law Mrs Nirmala Phuyal[13] and Mrs Bimal Phuyal;[14]

(j) various character references of work colleagues;[15]

(k) submissions of the applicant's solicitors dated 15 July 2025;[16]

(2) submissions of the applicant's solicitors dated 4 November 2025,[17] to which were attached statements of the applicant,[18] the applicant's wife Mrs Nirjala Pokharel,[19] Interlock Compliance Evidence,[20] the applicant's Driving Record, [21] evidence of alcohol counselling,[22] a National Police Check of the applicant prepared by the Australian Federal Police;[23] a handwritten statement of the of the applicant's 10 year old son,[24] and evidence of his son's Australian citizenship;[25]

(3) the Minister's statement of facts, issues and contentions (SOFIC);[26]

(4) the applicant's reply to the Minister's SOFIC (Reply to SOFIC),[27] to which relevantly was attached a statement of the applicant dated 25 November 2025,[28] a report of Ms Diane Flack, an Alcohol and Other Drugs Counsellor,[29] a handwritten statement of the applicant's 12 year old daughter,[30] school reports and related documents for the applicant's children[31] and a character reference for the applicant by Mr Ravi Khatiwada;[32]

(5) documents produced under summons by Goulburn District Court;[33]

(6) documents produced under summons by Moss Vale Local Court;[34]

(7) documents produced under summons by Sutherland Local Court;[35]

(8) documents produced under summons by NSW Police.[36]

(1) the report of Ms Flack dated 3 December 2025;[37]

(2) documents produced under summons by NSW Police Force.[38]

1. The applicant, his wife, his two sisters-in-law, the applicant's daughter and the applicant's brother were required for cross-examination. Each gave additional oral evidence (which I will refer to below where relevant) and were cross-examined by Ms C Crawley who appeared for the Minister.

1. As noted, a number of statements of the applicant were before the Tribunal, including the two most recent statements being dated 4 November 2025 and 25 November 2025. These were in similar terms. For convenience, and in the interests of economic decision writing, I will summarise the most recent statement, being the statement of 25 November 2025.
2. The statement of 25 November 2025 was divided into the following sections.

1. In summary, the applicant says that he takes full responsibility for his past conduct, that he regrets his drink-driving offences and the distress they caused his family, the community, and myself. He acknowledges the domestic incident that occurred in 2016 between me his wife, and says that they have moved forward, and for the past nine years our relationship has been stable, supportive, and loving.
2. The applicant notes that he has served a term of imprisonment and says he has learned profoundly from that experience. He is making amends for past conduct and continues to pay $100 per month to the petrol station's company for the actions that resulted in a collision with the petrol bowser in 2023.
3. The applicant says that while he still drinks occasionally, he is now much more mindful and disciplined, and has made major changes to ensure that he will never repeat the mistakes of my past again. I have not reoffended since 2023 and am committed to living a reformed life.
4. The applicant says that he no longer drinks and drives under any circumstances.
5. I note that at the hearing the applicant gave evidence that he had now stopped drinking entirely, and had not had a drink for five weeks.

1. The applicant says that since his release from gaol in August 2023, he has taken genuine and proactive steps to address the factors behind my past offences. This includes:

(1) completing the ASPIRE Traffic Offender Intervention Program on 5 September 2023, where he gained a deep understanding of impact of traffic offences to society, behavioural factors that puts other road users at risk like speeding and drink driving, vehicle safety and vehicle maintenance, road trauma, alcohol's impact on judgement, and my responsibilities as a driver in Australian roads;

(2) attending "AA-style community support groups".

1. The applicant says that for several years he has attended counselling or support meetings wherever he can. He says that when his lawyers asked him for evidence, he realised he had no formal documents because the community groups he attended did not require registration or issue attendance records. For that reason, he enrolled with a counsellor from the South Western Sydney Local Health District to ensure the Tribunal had proper evidence of his commitment. In this respect, he relies on a letter of Ms Flack.[39]

1. It is not necessary to summarise this portion of the applicant's statement.

1. The applicant notes that he has two children aged nine and 12, who are Australian citizens. He says that their entire lives, being school, friends, community and their everyday routine, are in Australia. He says that his children depend on him every day for emotional support, their school and daily routines, supervision and safety, cultural and moral guidance, and then shall support and stability and security.
2. The applicant notes that his psychologist has assessed that relocating his children to Nepal would cause major educational disruption, emotional and psychological harm, cultural displacement and loss of established support networks. If they remained in Australia, they would suffer from attachment stress due to separation from the applicant.
3. The applicant says that keeping the family unit together in Australia is overwhelmingly in the best interests of his children, and that he and his wife remain proudly committed to their children's future in Australia. In this respect, he relies on his daughter's statement.

1. The applicant notes that the that Australia has been his home for over 17 years and that he works full-time in a meaningful role at Australian BioResources.
2. At the time of the hearing, the applicant was no longer employed at Australian BioResources.[40]

I am remorseful, rehabilitated, and am assessed as low risk by my psychologist and community corrections officer. My past offences do not reflect the person I am today. I respectfully ask the Tribunal to exercise compassion and allow me to remain in Australia so I can continue supporting my wife, raising my children, and contributing positively to my community.

2. At the hearing, the applicant's solicitor explored these issues with the applicant. He gave oral evidence consistent with his statement. Amongst other matters, the applicant gave evidence in chief that:
   • he has spent half his time in Australia working in residential care
   • he plays a major role in the family's household, and supports his family in every way, financially, emotionally, taking them to childcare and so on
   • his relationship with his wife and children is better than ever; he is a very proud Dad
   • he denied hitting his wife with a closed fist as alleged in the relevant Facts Sheet
   • he had had a little bit to drink and there was a little bit of argument, resulting in "push and shove". His wife was not injured
   • when he went to Court he was not represented. He had no idea about the legal system and the consequences for him of pleading guilty
   • that was the only incident involving his wife
   • the incident involving the petrol bowser was "the worst mistake ever done in my life", and the subsequent incarceration the "worst experience in my life", with four months feeling like 40 years
   • this experience caused him to try and stop drinking, "for my kids"
   • as at the time of the hearing he had not had a drink for five weeks
   • his sessions with Diane Flack have helped him a lot, and he now realises that drinking and driving is not acceptable at all
   • he is very regretful and very sorry for what he has done.
3. Relevantly, in cross examination, the applicant said that:
   • he had very few remaining contacts in Nepal, although his parents, aged 68 and 70, are living in Kathmandu
   • he has a brother and a cousin in Australia. The brother lives in Sydney
   • after his secondary education in Nepal, he worked in marketing and in accounting, and then in similar roles in Australia
   • he had to cease working in residential care as a result of the domestic violence charge
   • he accepted that his excessive alcohol consumption that night might affect his version of events
   • he denied he hit his wife as alleged, despite the statement in a letter the Department dated 9 March 2018[41] in which he stated he "bec[a]me physically violent to her which I have regretted and [am] ashamed of to this date"
   • he agreed that he pleaded guilty to the offence
   • he died lying to his psychologist and the police
   • did not agree that he was making excuses for his behaviour, as there are no excuses, I have done the mistake with pushing and shoving"
   • on the day of the petrol bowser incident, he did not know how much he had been drinking
   • he is very sorry as he realised he might have harmed or killed people
   • he has never displayed aggressive conduct in front of his children
   • denied that his drunkenness on 3 November 2025 showed that he had learned nothing from any of the programs he had attended
   • agreed that he had drunk on a number of occasions put to him by Ms Crawford, on the basis of materials in the SHB
   • denied that the continued drinking, the subject of police attention to 3 November 2025, did not demonstrate that his commitment to change was not genuine
   • agreed that he exposed his children to a significant risk of harm on the day of the petrol bowser incident
   • agreed that his children were removed from his care on one occasion for one night when they were taken to the home of one of his sisters-in-law
   • agreed that he spoke Nepalese, and that he would stay with his parents if he were removed to Nepal.

Evidence of the applicant's wife, Mrs Nirjala Pokharel

1. Mrs Pokharel prepared a statement dated 4 November 2025.
2. In her statement, Mrs Pokharel acknowledged the domestic violence in 2016, but denied that her husband hit her with a closed fist. She states that at the time though both she and her husband were under a lot of stress and that alcohol played a role in worsening the situation. Mrs Pokharel states that they have moved forward since that time, and that the applicant has accepted full responsibility in showing genuine remorse. Since that occasion there has never been any further violence or aggression.
3. Mrs Pokharel says that the applicant is a caring husband and a devoted father who helps with everything around the house. She says that since his imprisonment for drink-driving in 2023 she has seen a new level of maturity, calmness and responsibility in him, and that he now drinks much less and when he does he drinks responsibly.
4. Mrs Pokharel says that the children love their father deeply, and had a sense of security in Moss Vale that depends on having both parents around them. She says that if the applicant was forced to leave Australia it would devastate the family emotionally and mentally. Mrs Pokharel says that as she is dependent on her husband's visa status, she too would have to leave Australia. She says it would not be fair to force the family to leave together, and that her children have never lived in the Nepal and can barely speak Nepalese. She says that their home, education and future is in Australia. She described their ties to Australia and Australian culture as being "very deep" and "strong".
5. At the hearing, the applicant's solicitor explored these issues with Mrs Pokharel, who gave oral evidence consistent with her statement.
6. In particular, Mrs Pokharel said that her husband did not hit her in the incident on 21 September 2016, there was just a "little argument", with "only a little bit push". She said she did not understand the wider ramifications of calling the police and that with her poor English she expressed herself poorly to police and that "what I said to police was taken differently".
7. As to the "new level of maturity" she referred to in her statement, Mrs Pokharel confirmed that the applicant had not been drinking for about five weeks.
8. When asked about the applicant being found at home drunk by the police on several occasions, stated that for the last three years he had not drunk that much and that it was usually in the social context.
9. Mrs Pokharel confirmed that she worked five or six days per week, usually five, and that Mr Pokharel attended to the basic needs of their children, helped with their homework and prepared meals for them. She said she would be devastated if the applicant were removed from Australia.
10. In cross-examination, Mrs Pokharel:
    • said the reason she called the police on 21 September 2016 was because she wanted the applicant to stop drinking
    • did not accept that she was scared of her husband on that occasion and called the police to protect her
    • denied she was tailoring her evidence to support her husband
    • said she was "100%" confident he would never drink and drive again.

Evidence of the applicant's sister-in-law, Mrs Nirmala Phuyal

1. Mrs Nirmala Phuyal prepared a statement dated 9 July 2025 in which she gave rather moving evidence of the applicant's close relationship with, and care for, his children, describing the applicant as a "superhero" to them. She also spoke of the applicant's care and concern for her when she first came to Australia, describing him being like a guardian to her.
2. At the hearing, Mrs Phuyal:
   • described the applicant as "really good-hearted" and a responsible father and loving husband
   • was not present on the night of the September 2016, but understood it was a "simple husband and wife incident. Push and shove"
   • was aware of the applicant's convictions
   • said the applicant was not a regular drinker, "just a social drinker", who was now getting some help
   • as to the role the applicant played in his children's lives, said "He is a role model housework, driving them everywhere; cooking; basically he a good father who does everything for his children.
3. Relevantly, in cross examination, Mrs Phuyal:
   • agreed that alcohol had been a contributing factor to the applicant's criminal conduct, but that the applicant was dedicated to "interventions and strategies"
   • said that the applicant was a social drinker who did not drink very much.

Evidence of the applicant's sister-in-law, Mrs Bimala Phuyal

1. Mrs Bimala Phuyal prepared a statement dated 10 July 2025. She speaks in particular of the close and loving relationship between the applicant and Mrs Phokarel. She also talks about his "deeply involved and loving role" as his children's father. She states that the applicant is a:

pillar of strength and stability. When my sister gave birth to their second child, she decided to stay home to care for the children full-time for nearly five years. During this period, Subash single-handedly supported the entire household financially. Despite the pressure and demands of being the sole breadwinner, he never once wavered in his duties. He worked tirelessly and without complaint to ensure his family had everything they needed. He managed to strike a beautiful balance between working hard and being present for his wife and children. > > I believe that his continued presence here is not only in the best interest of his wife and children but also beneficial to the broader community as a member of our community and extended family, Subash is equally respected and loved. He has never hesitated to lend a helping hand to anyone in need and carries himself with humility and generosity. He is honest and upholds strong moral values. I have always found him to be thoughtful, calm in nature, and mature in handling life's challenges.

2. At the hearing, the applicant's solicitor explored these issues with Mrs Bimala Phuyal. She gave oral evidence consistent with her statement.
3. Relevantly, in cross examination, she gave evidence similar to that of her sister.

1. The applicant's twelve year old daughter, whom I will refer to as "ABC", is in Year 7 at High School. In an undated handwritten statement, she states that:

My father, Subash Pokharel, is a wonderful dad. I still had no idea how I got lucky.

2. ABC goes on to explain that she needs to stay in Australia to fulfil her education and that she would need the parents emotional support to do so. She wants to "get into" a good college or university and says that she cannot do that without the most important things in her life being "my hometown with friends, best friends & family and my parents".
3. ABC says that her parents have always tried their best to make her and her brother's life one of the best they could have. She says that her father has had a huge impact on her life, driving her to places and that he doesn't mind the taste in music.
4. ABC says that words cannot express how much she wants to stay in her birth country with her parents by her side watching her grow up.
5. At the hearing, the applicant's solicitor explored these issues with ABC. ABC gave oral evidence consistent with her statement.
6. ABC also said that her father did not speed "too much". She said she felt safe at home with him, and rarely saw either of her parents drinking. Such drinking as there was did not prevent them from caring for her and her brother and "they help us with everything".
7. I accept that the Minister was entitled to test evidence before the Tribunal, but I was somewhat surprised to see a 12 year old being required for examination. However, Ms Crawley's cross examination was a sensitive one, and ABC came across as an extremely impressive young woman who gave what I thought to be honest and compelling evidence. She clearly loves her father very much. Her testimony was all the more persuasive as she clearly recognised her father's faults.
8. In cross-examination, ABC said that when he father is drunk he "just sleeps really", but still cooks for the family. She agreed that she was taken away from her parents once when she was younger, but cannot remember much about it. She said that on that occasion her parents were "not that much" drunk. She said the applicant always helped her with her homework (which was why she was "good at maths and English), and that he had never been so drunk he could not help her with her homework.

Evidence of the applicant's brother, Mr Bikash Pokharel

1. Mr Bikash Pokharel prepared a statement dated 8 July 2025.
2. Relevantly, Mr Bikash Pokharel speaks of the applicant's "fundamentally good character", describing the applicant is a "devoted husband, a caring father, and a person who values honesty, integrity, and community service". Mr Pokharel says that his brothers "serious mistakes were uncharacteristic and occurred when the applicant was under significant emotional distress.
3. Mr Pokharel accepts that those circumstances do not excuse his brother's actions, but they do provide as contributing factors which temporarily impaired his judgment.
4. Mr Pokharel says that his brother has taken full responsibility for his behaviour, and expressed genuine remorse, and has engaged proactively in counselling and support services aimed at addressing the underlying issues.
5. Mr Pokharel says that he has witnessed significant and sincere change in the applicant's outlook and conduct since the events, and that his brother has consistently demonstrated respect for Australian laws and values, and remains committed to ensuring such behaviour is never repeated.
6. Mr Pokharel says that his brother has made meaningful contributions to Australian society, particularly through his longstanding work in the aged care sector. He has supported local businesses and been involved in community-oriented projects, including work at a research centre. He has always shown a commitment to helping others and being a productive and law-abiding member of the community.
7. At the hearing, the applicant's solicitor explored these issues with Mr Pokharel. He gave oral evidence consistent with his statement. In particular, in relation to the applicant's community ties, Mr Pokharel's referred to his relationship with his co-workers, and with the Nepalese community. Mr Pokharel said that in Moss Vale the applicant is known as a good person, where he has built a strong connection to society and to community.
8. As to the effect his removal would have on the family, Mr Pokharel said "if they go back that means the end of the family", and that their leaving would cause significant impact and distress to the children and "all of us. Mr Pokharel said that Sadhana and her brother wanted to be able to achieve their rights as Australian citizens. He noted that they had never lived in Nepal, where they would have to attend a new school, be exposed to an unfamiliar environment where they would face language barriers.
9. Relevantly, in cross examination, Mr Pokharel
   • agreed that the applicant used alcohol as a coping mechanism
   • was not sure if there was domestic violence in the incident of September 2016
   • agreed that alcohol was a contributing factor in the applicant's convictions
   • suffered relapses, although not on a daily basis
   • disagreed with the proposition that the applicant was not committed to not reoffending.

1. Other evidence included an undated statement of the applicant's 10 year old son, (whom I will refer to as "DEF") who simply stated:

my dad is a caring, lovley father. He loves us, cooks food for us. please let him stay. > > (Sorry I'm bad at writing) > > From DEF > > (spelling as in original)

1. The applicant relied on two short reports of Ms Flack.
2. The first report was dated 5 November 2025 and states:

This letter is to confirm that Mr Subash Pokharel has participated in Alcohol and Other Drugs Counselling (ADO) with our service. Mr Subash Pokharel completed an intake and Assessment on the 13/10/25. > > Mr Subash Pokharel has agreed to attend counselling with this service to address his alcohol issues and his first face-to-face appointment is on 12/11/25 that was my earliest appointment date. The primary focus of AOD counselling was to provide [Mr Subash Pokharel] with Psycho education, relapse prevention, cognitive behavioural therapy and general therapeutic support.

3. The second report, dated 3 December 2025, confirms that the applicant had participated in three counselling sessions to address his alcohol use, and that another appointment was booked for 9 December 2025, and that the applicant had agreed to continue counselling.
4. Ms Flack reported that the applicant presented as "punctual, neat in presentation and attentive during his counselling sessions new" Ms Flack states that Mr Pokharel had reported to her that he had stopped drinking alcohol.
5. As Ms Flack was not available for cross examination, the Minister submitted that no weight could be placed in her report on her reports. I disagree. In my view, I can and do find that the reports provide evidence of the applicant's enrolment in and attendance at counselling being undertaken with Ms Flack. While at this date there was no one way of knowing whether Ms Flack's counselling will assist with the applicant's rehabilitation, and Ms Flack does not purport to do so, nevertheless the fact that the applicant is now attending counselling is encouraging.

Report of Dr Kala Ram, psychologist, 16 August 2025

1. Also before the Tribunal was the Psychological Assessment Report of Dr Ram dated 16 August 2025.
2. In the report Dr Ram states her views on Direction No 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction) insofar that the direction applied to the applicant. Thus, by way of example for the reason stated in the report, Dr Ram assesses, in relation to the protection of the Australian community from criminal or other serious conduct, that the applicant's risk is "objectively low". She states that due to the applicant's positive progress since his release from jail on 5 August 2023, it is low risk of re-offence, is unlikely to pose a risk of harm to the Australian community.
3. As Ms Flack was not available for cross examination, the Minister submitted that no weight could be placed on her reports or on her opinions.
4. Largely, I agree. I do however think I can take her report into account insofar as it reflects statements apparently made by the applicant to her during the course of a consultation on 4 August 2025, particularly where those statements are consistent with other evidence before the Tribunal. By way of example Dr Ram reports that, in relation to the high range PCA incident, the applicant "expressed significant remorse for his actions and recognised, 'I've learned my lesson. I could have killed someone'."
5. At the hearing, the applicant's solicitor conceded that I should not take Dr Ram's ultimate conclusions in relation to the Direction, into account. Given that concession, it is not necessary for me to set out my views on whether I could have placed any weight on some of Dr Ram's opinions. It seems to me that Dr Ram's opinion as to whether or not conduct committed by the applicant in 2016 constituted family violence is not a matter falling within Dr Ram's expertise. In my view, those opinions fall into an entirely different classes to Dr Ram's opinions in relation to the applicant's mental status examination as assessed through psychometric testing and the Personality Assessment Inventory.

1. Finally, at the conclusion of the hearing, I heard oral submissions from Mr N Pokharel, the applicant's solicitor,[42] and Ms Crawley. Mr N Pokharel spoke to the applicant's submissions to the Minister prepared by him dated 4 November 2025 and applicant's Reply to the Minister's SOFIC. Ms Crawley spoke to the Minister's SOFIC.

RELEVANT FACTS, INCLUDING THE APPLICANT'S OFFENDING HISTORY

1. On 18 August 1980, the applicant was born in Nepal. He is presently 43 years old.
2. In 2007, the applicant married his wife, Mrs Nirjala Pokharel (née Phuyal).
3. Mr and Mrs Pokharel have two children, a daughter ABC, aged 12, and a son DEF aged 10. Both ABC and DEF are Australian citizens, and were born in Australia after their parents came to Australia in 2008.
4. On 29 June 2008, the applicant arrived in Australia on a Vocational Education and Training Sector (subclass 572) visa.
5. In 2014, the applicant was charged with "drive with low range PCA - 1st off". The Check Results Report records that on 7 August 20 14 the result was "Bond S 10 - 12 MONTHS". This is presumably a reference to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act). Section 10 relevantly provides:

10 Dismissal of charges and conditional discharge of offender > > (1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders-- > > (a) an order directing that the relevant charge be dismissed, > > (b) an order discharging the person under a conditional release order (in which case the court proceeds to make a conditional release order under section 9), > > (c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

6. On 6 July 2017, the applicant applied for the SRVB Visa.
7. On 21 September 2016, the applicant was charged with one count of "common assault (dv)"[43] under s 61 of the Crimes Act 1900 (NSW). Section 61 provides:

Common assault prosecuted by indictment > > 61 Common assault prosecuted by indictment > > Whosoever assaults any person, although not occasioning actual bodily harm, shall be liable to imprisonment for two years.

8. On 5 October 2016, the applicant was convicted, and the Check Results Report records the result was "Bond S9 - 9 MONTHS". This is presumably a reference to s 9 of the CSP Act which relevantly provides:

9 Conditional release orders > > _(1) Instead of imposing a sentence of imprisonment or a fine (or both) on an offender, a court that finds a person guilty of an offence may make a conditional release order discharging the offender, if - _ > > (a) the court proceeds to conviction, or > > (b) the court does not proceed to conviction but makes an order under section 10 (1) (b). > > _(2) In deciding whether to make a conditional release order with a conviction, the sentencing court is to have regard to the following factors - _ > > (a) the person's character, antecedents, age, health and mental condition, > > (b) whether the offence is of a trivial nature, > > (c) the extenuating circumstances in which the offence was committed, > > (d) any other matter that the court thinks proper to consider.

9. The applicant filed a severity appeal to the District Court of New South Wales. On 17 November 2016 the magistrate's order was confirmed.
10. There was a debate before me about the facts alleged in the Facts Sheet in this matter. Relevantly The Facts Sheet stated:

About 10:00pm on Wednesday the 21st of September 2016 the Accused and the Victim became involved in an argument over the arrangement of there child birthday party. This argument took place at 39 Kirkham Street Moss Vale. The children were present at the time of the incident. > > A short time later the argument became heated and both the Accused and the Victim had a push and shove between each other. As the altercation continued the Accused struck the Victim with a closed fist to the top of the Victims head several times. This caused pain and discomfort to the top of the Victims head. The Victim pushed the Accused away and contacted '000' informing the operator she had been assaulted by her husband and requested police. > > Police arrived at the location moments later and were invited into the premise by the Accused. Police observed the Accused to have blood shot eyes and unsteady on his feet. Police spoke to the Victim who was crying and holding the top of her head. She repeated several times to police she had just been assaulted by the Accused. > > Police approached the Accused, cautioned and arrested the Accused for Domestic Assault. > > Police questioned the Accused in regards of the incident and he said, "We had an argument over my sons party. I pushed her and she pushed me it was nothing". The Accused denied this assaulting the Victim with a closed fist. The Accused also stated he had consumed 4 glasses of Scotch during the evening. > > As police attempted to escort the Accused from the premises the Victim became emotional and grabbed hold of the Accused and did not want police to arrest him. This was due to the cultural background of family and the Victim believed the Accused was going to jail for a period of time. Police had to use force to remove the Victim from the Accused and explained to her the process that was to follow. > > Police obtained a DVEC Statement from the Victim at the scene. During her statement the Victim stated the incident was the first time she has been assaulted by the Accused and believes alcohol is a factor of his change of behaviour.

11. At the hearing I was told that the applicant had never used a closed fist and that, as in the Facts Sheet "I pushed her and she pushed me it was nothing". Mrs Pokharel gave evidence to similar effect. It was submitted that I should overlook what was contained in the Facts Sheet about the "closed fist to the top of the victims head several times", and accept the evidence of both the applicant and his wife that that that never took place.
12. I decline to do so. While I do not have the benefit of the magistrate's Sentencing Remarks, I have no doubt whatsoever that the applicant having pleaded guilty the magistrate would have relied on the contents of the Facts Sheet in giving what he or she considered to be an appropriate sentence.
13. In May 2020, the applicant was charged with "drive with high range PCA - +1st off". On 2 June 2020, the applicant was fined $700, a community correction order for nine months imposed, and the applicant was disqualified from driving for seven months and ordered to participate in an alcohol interlock program for 24 months.
14. On 31 March 2023, the applicant was charged with:

(1) "drive with high range PCA - 2nd+off" pursuant to cl 110(5)(a) of the Road Transport Act 2013 (NSW). Section 110(5)(A) provides:

110 Presence of prescribed concentration of alcohol in person's breath or blood

...

_(5) Offence - high range prescribed concentration of alcohol A person must not, while there is present in the person's breath or blood the high range prescribed concentration of alcohol - _

(a) drive a motor vehicle, or

(b) occupy the driving seat of a motor vehicle and attempt to put the motor vehicle in motion, or

(c) if the person is the holder of an applicable driver licence (other than an applicable provisional licence or applicable learner licence) - occupy the seat in a motor vehicle next to a learner driver who is driving the vehicle.

...

Maximum penalty - 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence)

(2) "Interlock licence holder not have approved device installed" pursuant to cl 119(1) of the Road Transport (Driver Licensing) Regulation 2017 (NSW). That clause relevantly provides:

119 Failure to comply with licence conditions

(cf 2008 Reg cl 114)

(1) The holder of an Australian driver licence who fails to comply with a condition of that licence is guilty of an offence.

Maximum penalty - 20 penalty units.

_(2) Subclause (1) does not apply in relation to the following - _

(a) the holder of a provisional licence who is driving a motor vehicle contrary to a condition of that licence restricting the holder to driving motor vehicles with automatic transmissions if the seat next to the holder of the licence is occupied by a person who holds an Australian driver licence (not being a learner licence or provisional licence) authorising him or her to drive such a vehicle,

(b) a failure to comply with a condition that attaches to a NSW learner licence, provisional P1 licence or provisional P2 licence because of clause 40.

ANTECEDENTS > > The accused is employed at a local packaging facility and earns approximately $879 a week. > > The accused pays $500 a week in rent and has two dependant children. > > The accused has previous criminal history for offences relating to driving with a PCA in his blood and is required to use a approved interlock device in his vehicle. > > FULL FACTS > > The accused in this matter is Subash POKHAREL, born on the 18th of August 1980. > > About 8:50am on Friday the 31st of March 2023, the accused drove a silver Alfa Romeo hatch bearing New South Wales registration plates AZX02Z off Argyle Street Moss Vale into the Mobile Service Station forecourt. The accused stopped in line waiting for a free bowser for a short time before he suddenly and uncontrollably accelerated, travelling approximately 15 metres before colliding with a petrol bowser. The impact caused major damage to the bowser and significant damage to the front of his car. This is captured on CCTV footage which has been provided to police. > > This was witnessed by an off duty police officer who witnessed the accused still accelerating and reached through the window turning the vehicle off. The off duty police officer instantly recognised that the accused was well intoxicated and placed him under arrest. > > Further police resources arrived on scene and spoke with the accused. The accused was unsteady on his feet, slurring his words, his eyes red and glazed and the accused was a mix of emotional and aggressive. The accused provided police a New South Wales class C licence number 20910667 which had a interlock condition attached. An inspection of the accused vehicle revealed there was no interlock device fitted. > > The accused was submitted to a breath test which returned a positive reading and as a result the accused was conveyed to Moss Vale Police Station where he participated in a breath analysis which returned a reading of .201 grams of alcohol in 210 litres of breath. > > In relation to his drinking the accused slated he had been drinking Rum, but was unable to comment on how many drinks he had consumed or over what period. The accused showed little to no remorse for his actions and remained argumentative during his time in custody. > > At the time of the offence there were numerous people with the Service Station forecourt, standing around their vehicles seriously heightening the risk posed by the accused. The Mobile Service Station forecourt is a road related area under the definition within New South Wales.

2. The Check Results Report records that on 5 June 2023:

(1) in relation to the high range PCA offence, the applicant was to be imprisoned for ten months including a non-parole period of five months, that he be disqualified from driving, and that he participate in an alcohol interlock program for 48 months;

(2) relation to the failure to have the interlock device installed, the applicant was fined $1,000.

1. While not stated in the Facts Sheet, it was common ground that immediately prior to the incident at the petrol station, the applicant had driven his children to school.
2. The applicant filed a severity appeal in relation to the high range PCA conviction with the District Court of New South Wales. The orders imposed by the magistrate with were varied whereby the applicant was sentenced to nine months' imprisonment, with a non-parole period of four months.
3. On 5 August 2023, the applicant was released from gaol and started reporting to the Bowral Community Corrections. Whilst in the community, he completed an online traffic offender program from 29 August to 5 September 2023,[44] being the ASPIRE Traffic Offender and Alcohol Awareness Program from which he learned about road safety, accountability, and the consequences of drinking and driving.
4. A report of Corrective Services NSW dated 11 July 2025[45] states that the applicant's interaction with staff, and particularly his officer, was productive, and that the applicant was polite and engaged with this service, and that "since this offence [the applicant] continues to lead a law-abiding lifestyle".
5. On 5 January 2024, the applicant's Parole Order expired.
6. On 26 May 2024, the police attended the applicant's home.[46]The applicant was "emotional and slurring his words, with a strong odour of alcohol emanating [from] him". His children were present. [47] No charges were laid.
7. On 31 October 2024, the applicant attended his son' school, after being informed that his son DEF was unwell. Staff were concerned at the applicant's "state and behaviour". Police were notified. They had a lengthy conversation with the applicant (whom they found sitting in a gutter) during which "he slurred his speech consistently, was erratic with his emotions, smelt strongly of intoxicating liquor and was very uneasy on his feet". [48] No charges were laid.
8. On 18 December 2024, police attended a local shop, finding the applicant "slurring his speech slightly and at times being unsteady on his feet". The police issued a "move on" notice. [49]
9. On 17 June 2025, the applicant received the Minister's notice of intention to consider refusal of his SRVB visa.
10. On 14 July 2025, the applicant lodged submissions in response to the notice to consider refusal.
11. On 30 September 2025, the Minister's delegate refused to grant the applicant the visa.
12. On 3 October 2025, the applicant filed this application for review of the delegate's decision to refuse him his visa.
13. On 3 November 2025, the police attended the applicant's home. The applicant was "extremely intoxicated and was struggling to stand up, was alluring his words and was abusive towards Police". His children were present. [50] A "children at risk" report was created as the police did not believe the applicant's children were being adequately cared for.[51]

1. Section 501 of the Migration Act deals with decisions to refuse or cancel a visa on character grounds. Relevantly to this case, s 501 provides:

Refusal or cancellation of visa on character grounds > > Decision of Minister or delegate--natural justice applies > > (1) 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. > > Note: Character test is defined by subsection (6). > > ... > > Character test > > (6) For the purposes of this section, a person does not pass the character test if: > > ... > > (d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would: > > (i) engage in criminal conduct in Australia; or

2. The Minister may give written directions under s 499(1) of the Migration Act to a person or body having functions or powers under the Migration Act if the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) requires the Tribunal to comply with any directions made under s 499(1).
3. In this case, the Direction applies.
4. For the purposes of deciding whether to refuse an application for a visa, par 5.2 of the Direction sets out several principles that must inform the decision-maker's application of the primary and other considerations set out in Part 2 of the Direction, where those considerations are relevant to the decision.
5. These principles 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 noncitizen does not pose a measurable risk of causing physical harm to the Australian community.

1. Informed by these principles, I must take into account the relevant primary and other considerations set out in the Direction.
2. Paragraph 7.1 of the Direction states that appropriate weight be given to information and evidence from independent and authoritative sources. Paragraph 7.2 of the Direction states that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. It also states that primary considerations should generally be given greater weight over the other considerations. In this respect see _FHHM v Minister for Immigrat_ion [2022] FCAFC 19. However, in Suleiman v Minister for Immigration [2018] FCA 594 the Court stated at [34] that "particular circumstances may pertain that may justify greater weight being to one or more of the other considerations than one of more of the primary considerations".
3. The primary considerations are set out in par 8 of the Direction:

(1) protection of the Australian community from criminal or other serious conduct;

(2) whether the conduct engaged in constituted family violence;

(3) the strength, nature and duration of ties to Australia;

(4) the best interests of minor children in Australia; and

(5) expectations of the Australian community.

1. A non-exclusive list of other considerations is set out in par 9 of the Direction. These are:

(1) the legal consequences of the decision;

(2) the extent of impediments if removed; and

(3) the impact on Australian business interest.

1. As the Full Court of the Federal Court of Australia noted in Singh v Minister for Immigration for Citizenship and Multicultural Affairs [2023] FCAFC 46 (per Mortimer J) at [23]:

Directions made under s 499 of the Act bind administrative decision-makers, including the Tribunal: see s 499(2A). They must be taken into account, and they must be accurately understood: see my observations in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [39], and see also Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; 241 FCR 461 at [55]. That said, the directions provide no more than guidance on the exercise of discretionary powers. As Kenny J and I said in Jagroop at [55], directions of this nature are avowedly intended to affect the weight decision-makers generally give to certain factors. However, they can do so as guidance only: see [78] of Jagroop. Such directions cannot compel a repository of a power to reach a particular outcome, or compel specific weight to be given to a particular matter if, in the individual circumstances of the case, the administrative decision-maker's view is that different weight should be given to a particular matter. The statutory power in respect of an individual visa holder is being exercised by the administrative decision-maker, not by the Minister who made the directions. The principles in Drake (No 2) about policies remain generally applicable to these kinds of directions: see Re Drake v Minister for Immigration and Ethnic Affairs (No 2) [1979] AATA 179; 2 ALD 634 at 645.

1. Section 501(6)(d)(i) of the Migration Act provides that a person does not pass the character test for the purposes of s 501(1) if in the event the person were allowed to enter or to remain in Australia, there is a risk that the person engage in criminal conduct in Australia.
2. As the Minister correctly submits, the issues for the Tribunal to consider are:

(1) whether the applicant passes the character test, as defined in s 501(6) of the Migration Act; and

(2) if not, whether the decision to exercise the discretion in s 501(1) of the Migration Act to refuse the applicant's application for a SRVB Visa is the preferable decision, having regard to the considerations set out in the Direction.

1. The first issue in this review is whether the applicant passes the character test set out in s 501 of the Migration Act on the basis that if he were allowed to remain in Australia, there is a risk he would engage in criminal conduct in Australia. The Minister submits that the assessment of the risk is a forward-looking test, necessarily informed by the applicant's past conduct and current circumstances.
2. Annexure A to the Direction includes an explanation of various aspects of the character test. Paragraphs 6(2) and (3) provide:

(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.

3. It is for an applicant to satisfy the Minister that they meet the character test. This involves persuading the decision maker that they will not engage in criminal conduct: Singh v Minister for Immigration for Citizenship and Multicultural Affairs per Mortimer J at [6].

1. As noted above, on 17 June 2025, a delegate of the Minister wrote to the applicant to inform him the Department was considering refusing the applicant's visa under s 501(1) of the Migration Act and invited the applicant to comment. In response the applicant made submissions through layers dated 4 November 2025.
2. The applicant did not directly address the separate, and preliminary question, of whether he had failed the character test. Instead, the applicant moves straight to the second question whether the decision to exercise the discretion in s 501(1) of the Migration Act to refuse the applicant's application for a SRVB Visa is the preferable decision, having regard to the considerations set out in the Direction.
3. That said, in relation to submitting that he will not engage in criminal conduct in the future, in his submissions of 4 November 2025, the applicant submitted that:

Since his release from custody in 2023, the applicant has made conscious, practical efforts to rebuild his life and act responsibly. > > o Corrective Services NSW Letter (11 July 2023): confirms that Subash completed the ASPIRE traffic and alcohol offender program, was assessed as low risk of re-offending, and had his supervision suspended early due to positive engagement and compliance. > > o Enrolment in Alcoholics Anonymous: he has voluntarily joined and regularly attends AA meetings to manage his drinking and maintain accountability. This shows insight and commitment to personal growth - not because he is compelled to, but because he recognises the need to be a responsible husband, father, and member of society. > > This reflects a future-looking approach - a man striving to live with awareness and discipline

1. The Minister's submits[52] that in determining whether there is a risk that the applicant will engage in future criminal conduct for the purpose of the character test in s 501(6)(d)(i):

(1) I must be satisfied that there is real risk, more than a minimal or fanciful risk that the applicant will engage in future criminal conduct: FVGP v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1440 at [38]). At [38], the Tribunal stated:

The convictions and the other admitted facts lead me to the conclusion that there is a risk that FVGP would engage in criminal conduct if in the community, and it is not a minimal or fanciful risk. This is sufficient for a person to fail the character test. It is not necessary in making this finding for me to decide what that level of risk is, other than to say it is not trivial.

(2) the conduct imagined must be conduct for which a criminal conviction could be recorded. Relevant considerations include: the applicant's criminal history, factors contributing to the past conduct, evidence of rehabilitation and remorse on the part of the applicant.

1. After setting out the applicant's criminal history, the Minister addresses the factors which he submits contributed to the applicant's past conduct, the applicant's rehabilitation and remorse (or lack thereof).
2. As to the factors contributing to the applicant's past conduct, the Minister submits that:

(1) regardless of the applicant's submission that he intends to commence drug and alcohol counselling, he has provided no evidence of doing so to date, and any contentions the effectiveness of any treatment would purely be speculative. It is of concern that the applicant's lawyers indicated to a health care provider that such counselling was sought 'as part of his case'. The meaning of this is unclear but suggests a previous unwillingness to properly engage with such services. Given that the applicant continues to drink alcohol the potential influence of this on his future conduct remains relevant.

(2) following release from prison, the applicant was diagnosed with and sought treatment for mixed anxiety and depression. There is no evidence to suggest that these conditions were present at the time of the applicant's offending nor is there contemporaneous evidence of the applicant's state of mind at the time of the offending to indicate their presence, rather they should be understood in the context of the applicant being released from custody and adjusting to returning to the community. Further these conditions appear to have been resolved, as Dr Ram's report states that the applicant's stress anxiety and depression are all within normal limits.

1. I note that those submissions were prepared before the Minister had seen Ms Flack's reports, which indicate that the applicant was now attending counselling and would do so in the future.
2. As to the applicant's rehabilitation and remorse (or lack thereof), the Minister:

(1) accepts that the applicant, in his various written statements,[53] has expressed remorse for his conduct. However, while the applicant has represented to the Department that he takes "full responsibility for [his] mistakes", he has also denied this conduct, noting that in Dr Ram's report, Dr Ram records the applicant as denying physically assaulting his wife;

(2) submits that the applicant's attempts to diminish and explain away his family violence conviction, undermines the statements of remorse he has made to the Department, and suggests that the applicant's statements may not be genuine in these circumstances;

(3) accepts that the applicant has undertaken rehabilitation under mandate in the form of the ASPIRE Traffic Offenders Course and through his time in prison. However, the Minister contends that little weight can be placed on the applicant's submission that he intends to commence drug and alcohol counselling given that this treatment has not yet been commenced and/ or completed and the effectiveness of this proposed treatment has not been proved.

1. The Minister submits that:
   1. The applicant's offending has occurred primarily in the context of alcohol consumption. The applicant has identified this but has not demonstrated that he has taken any steps to remove this factor from his life. His wife has made a representation that the applicant now drinks less (SP2/1), however, this statement has not been qualified by any meaningful metric, nor is there any evidence to satisfy the Tribunal that the applicant will sufficiently modify his drinking to avoid the risk of further offending. It additionally suggests the absence of insight into his offending and the role played by alcohol. Whilst the consumption of alcohol is not unlawful (ASFIC), the applicant's ongoing drinking is at odds with his purported commitment to Alcoholics Anonymous and sobriety.
   2. In addition to the applicant's two convictions for drive high range PCA, he was also dealt with by the Australian criminal justice system in relation to a charge of drive low range PCA on 7 August 2014. In accordance with Lesianawai v Minister for Immigration Citizenship and Multicultural Affairs [2024] HCA 6, the Respondent does not seek to rely on this offence itself, however, the conduct that led to the offence is relevant in establishing a pattern of escalating behaviour in which the applicant has repeatedly driven while over the legal alcohol limit with increasing seriousness. In the context of the applicant's conduct as a whole it also demonstrates that despite multiple interventions from the criminal justice system the applicant has not mended his ways. He has instead relied on the same excuse of drinking the night before the offence and not realising he was unfit to the drive the following day. The applicant has not reflected on the behaviour that led to his offending and has instead chosen to repeat behaviour which has led to him offending.
2. For those reasons, the Minister submits that the Tribunal should be satisfied that there is a real risk that the applicant will engage in criminal conduct if permitted to remain in Australia, and that he thereby does not pass the character test.

1. As noted, the applicant does not directly address the preliminary and separate question, and has not submitted that he that he does not fail the character test.
2. The Direction relevantly states that:[54]

5.1. Past and present criminal conduct > > (1) In considering whether a person is not of good character on the basis of past or present criminal conduct, the following factors are to be considered: > > a) the nature and severity of the criminal conduct; > > b) the frequency of the person's offending and whether there is any trend of increasing seriousness; > > c) the cumulative effect of repeated offending; > > d) any circumstances surrounding the criminal conduct which may explain the conduct such as may be evident from judges' comments, parole reports and similar authoritative documents; and > > e) the conduct of the person since their most recent offence, including: > > > i. the length of time since the person last engaged in criminal conduct; > > > > ii. any evidence of recidivism or continuing association with criminals; > > > > iii. any pattern of similar criminal conduct; > > > > iv. any pattern of continued or blatant disregard or contempt for the law; and > > > > v. any conduct which may indicate character reform.

3. I note, in particular, that the applicant's past criminal record, while limited, demonstrated increasingly serious crimes. Here I refer to the second conviction for high range PCA resulting in incarceration.
4. The Direction also provides:[55]

5.2. Past and present general conduct > > (1) The past and present general conduct provision allows a broader view of a person's character where convictions may not have been recorded or where the person's conduct may not have constituted a criminal offence. > > a) in considering whether the person is not of good character, the relevant circumstances of the particular case are to be taken into account, including evidence of rehabilitation and any relevant periods of good conduct.

5. Here I note the various police reports of the applicant's drunkenness investigated by police including as recently as 3 November 2025, which was one day before the applicant signed a statement in which he said "I now live every day with discipline".
6. Weighing all these matters, I accept the Minister's submissions on this issue and conclude that the applicant fails the character test. That is to say, I am satisfied that there is risk that the applicant will engage in future criminal conduct if in the community, and it is not a minimal or fanciful risk. I am fortified in this as view as, as I discuss below, I consider that the applicant's rehabilitation is very far from being achieved and I have little confidence that his current abstinence from alcohol will be sustained.

SHOULD THE DISCRETION TO REFUSE THE VISA BE EXERCISED?

1. As the applicant does not pass the character test, I must then determine whether, having regard to the primary and other considerations contained in the Direction, the discretion to refuse to grant the applicant a visa under s 501(1) should be exercised.

First primary consideration: Protection of the Australian community from criminal or other serious conduct

1. In accordance with part 8.1(1) of the Direction, in considering the protection of the Australian community, I have had regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. I have also considered that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
2. As required by par 8.1(2) of the Direction, I must consider:

(1) the nature and seriousness of the applicant's conduct; and > > (2) the risk to the Australian community, should the applicant commit further offences or engage in other serious conduct.

3. Those two matters were not dealt with separately by either party. The applicant deals with the issues in his Reply to the Minister's SOFIC under the topics "Risk of Reoffending is Objectively Low", "Alcohol consumption [does not equal] Risk of Criminal conduct", "Rehabilitation Evidence is Overwhelming", and "No Potential Risk to the Australian community",[56] and in his submissions to the Minister under the topic "Rehabilitation and Accountability".[57]
4. The Minister deals with these matters in his SOFIC.

1. The applicant submits that his "Risk of Reoffending is Objectively Low" because:

(1) that was Dr Ram's conclusion;

(2) Corrective Services NSW suspended his supervision early because of positive progress and his low risk;

(3) the courts have already determined the risk the applicant poses to society, and in doing so, ultimately made orders resulting in his early release, with conditions (i.e. alcohol interlock program and abidance court orders in 2023). These conditions have not been breached to date by the applicant;

(4) he has had no police contact since 2023;

(5) he is genuinely remorseful;

(6) he has taken steps towards reformation;

(7) his incarceration has had a major impact on how he conducts himself in society, and inspired him to lead a reformed life as a law-abiding individual in Australia bearing in mind the impact of his conduct to his family and Australian community at large;

(8) if his presence were to be deemed of significant risk to the Australian community and the risk of reoffending were to be deemed so high by a sentencing magistrate, the applicant would have served a longer term sentence and would not have been released to the community as early as the applicant in present case.

1. In relation to alcohol consumption not equating a risk of criminal conduct, the applicant submits that the Minister incorrectly assumes that because he still occasionally drinks, he is at risk of reoffending. The applicant submits that this is legally incorrect, as the Direction requires assessment of risk of criminal conduct, not an abstinence from alcohol.
2. The applicant further submits that he has:
   • never driven after drinking since 2023
   • kept a complete separation between drinking and driving
   • complied with interlock program as ordered by the Court post 2023
   • undertaken counselling and will continue to do so to curb his drinking habit
   • demonstrated insight in the ASPIRE course, with extensive reflections on the risk of alcohol
   • there is no evidence of ongoing risk or endangerment of the society.
3. The applicant further submits that his evidence of his rehabilitation is overwhelming and that:
   • he pleaded guilty to the driving offences at the earliest available opportunity
   • this serves as evidence of his remorsefulness from the outset: Siganto v The Queen (1998) 194 CLR 656, at [22]; confirmed in R v Borkowski [2009] NSWCCA 102
   • it is a well a established principle in Australian criminal law and in sentencing of an individual that early acceptance of guilt is a sign of remorse an individual has for his/her conduct and is given significant weight by sentencing magistrate while sentencing a person under the relevant provision of the CSP Act 1999
4. Finally, the applicant submits that he poses no risk to the Australian community because:
   • the determinations made by the court resulted in his early release with conditions, conditions of which he has not breached ever since, nor have there been any further contraventions of the law
   • the sentencing magistrates have already assessed that the applicant is of low risk to the community in exercising their discretion within the range of penalties provided by relevant legislation
   • this is supported by the fact that the applicant was incarcerated for a short term and released to the community shortly thereafter. Had the applicant been deemed as posing significant risk to the community, the applicant would not have been released to the community as early as he was: FVGP and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1440 at [78]
   • the applicant has been tried in court and was sentenced adequately. Since that time, he has learnt his lessons, been deterred sufficiently and is now in the process of reformation and has not committed any further offences
   • the nature and seriousness of the crimes committed are not as severe as the others mentioned in the Direction, with drinking under the influence not being mentioned.

1. After setting out the applicant's criminal history, the Minister submits, in summary, that:

(1) regardless of the applicant's submission that he intends to commence drug and alcohol counselling, he has provided no evidence of doing so to date, and any contentions the effectiveness of any treatment would purely be speculative; > > (2) given that the applicant continues to drink alcohol the potential influence of this on his future conduct remains relevant; > > (3) following release from gaol the applicant was diagnosed with and sought treatment for mixed anxiety and depression. There is no evidence to suggest that these conditions were present at the time of the applicant's offending nor is there contemporaneous evidence of the applicant's state of mind at the time of the offending to indicate their presence, rather they should be understood in the context of the applicant being released from custody and adjusting to returning to the community. Further these conditions appear to have been resolved, as the Dr Ram's report states that the applicant's stress anxiety and depression are all within normal limits. > > (4) he accepts that the applicant, in his various written statements,[58] has expressed remorse for his conduct, but submits that the applicant's denials that he physically assaulted his wife undermine those statements of remorse, and suggests that the applicant's statements may not be genuine in those circumstances; > > (6) the Minister accepts that the applicant has undertaken rehabilitation under mandate in the form of the ASPIRE Traffic Offenders Course and through his time in prison. However, the Minister contends that little weight can be placed on the applicant's submission that he intends to commence drug and alcohol counselling given that this treatment has not yet been commenced and/ or completed and the effectiveness of this proposed treatment has not been proved.

1. In accordance with par 8.1(1) of the Direction, in considering the protection of the Australian community, I have had regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. I have also considered that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
2. In accordance with par 8.1(2), when assessing the risk that the applicant may pose to the Australian community, I am to 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.
3. In assessing the risk that may be posed by the non-citizen to the Australian community, decision makers must have regard to cumulatively:

(1) the nature of the harm to individuals or the Australian community engaging in further criminal or other serious conduct; and

(2) the likelihood of the applicant engaging in further criminal or serious conduct, taking into account information and evidence about the risk of the applicant reoffending, as well as evidence of rehabilitation achieved by the time of the decision.

1. I accept the Minister's submissions[59] set out above at [126] that in determining whether there is a risk that the applicant will engage in future criminal conduct for the purpose of the character test in s 501(6)(d)(i):

(1) I must be satisfied that there is real risk, more than a minimal or fanciful risk that the applicant will engage in future criminal conduct;

(2) the conduct imagined must be conduct for which a criminal conviction could be recorded.

1. As to the nature and seriousness of the applicant's criminal conduct, it is common ground that:

(1) in 2016, the applicant was convicted of common assault. He was found guilty, convicted and he was placed on a bond for 12 months;

(2) in May 2020, the applicant was charged with "drive with high range PCA - +1st off". On 2 June 2020, the applicant was fined $700; a community correction order for nine months imposed; the applicant was disqualified from driving for seven months and the applicant was ordered to participate in an alcohol interlock program for 24 months.

(3) in June 2023, the applicant was convicted of "drive with high range PCA - 2nd+off" for which the applicant was sentenced to be imprisoned for ten months including a non-parole period of five months, which was reduced on appeal to nine months' imprisonment, with a non-parole period of four months. At the same time the applicant was convicted of failing to comply with licence conditions, namely driving a vehicle without having a Interlock licence holder approved device installed, and fined $1,000.

1. I note that the Minister does not rely on the events of 2014, when the applicant was charged with "drive with low range PCA - 1st off".
2. I assess the applicant's conduct, the subject of his 2016 assault conviction, as being of a low level of seriousness, as any violence was very much at the lower end of the scale.
3. I assess the applicant's conduct, the subject of his 2020 charge, being a high range PCA, as being serious.
4. I assess the applicant's conduct the subject of his 2023 charges as being very serious. That is because he had already been convicted three years earlier of driving with a high PCA, and on this occasion he was driving drunk with his children in the vehicle and that his drunkenness resulted in serious property damage at the petrol station and could have resulted in serious injury to passers by, including police.
5. As to the risk to the Australian community, I reject the applicant's submission that he poses no risk to the Australian community, and I regard the submission that his rehabilitation as being overwhelming as overstated. I note that in his statement of 4 November 2025, the applicant stated that:

I have paid the price for my past actions - I have served my sentence, lost my licence, and endured the shame of my mistakes. But I have also gained humility and understanding. I now live every day with discipline and gratitude for my family and this country. > > I know alcohol and violence destroy lives. I will never let such behaviour define me again. I am determined to live a law-abiding, productive, and peaceful life, to continue being a good father and husband and to contribute positively to Australia.

6. However, the very day before, the applicant was found by police to be extremely intoxicated in his own home, and in the presence of his children. While I accept that the Direction does not demand or even expect the applicant not to drink, this conduct appears on its face to be inconsistent with man "liv[ing] every day with discipline".

1. In summary
   • the applicant has a modest criminal record, relevantly having been convicted of four offences, the most serious of which being the 2023 offences
   • the applicant has been incarcerated on but one occasion, for a period of four months, and he was permitted to leave prison at the conclusion of his non-parole period, having by all accounts been a model prisoner
   • the applicant has not been charged or convicted of any offence since that time
   • the applicant's rehabilitation is far from certain and is not complete
   • the applicant is now, and in my view belatedly, finally addressing his alcoholism.
2. Weighing all these matters, I find that the primary consideration of protection of the Australian community weighs of favour of refusing to grant the applicant the SRVB Visa.

Second primary consideration: whether the conduct engaged in constituted family violence

1. The applicant submits that:
   • the only incident occurred in 2016, almost a decade ago
   • ιτ was an isolated, once-off incident, to which he pleaded guilty at the earliest available opportunity
   • he has never assaulted his wife again
   • there is no pattern of frequency, no recurrence, and no ongoing risk of family violence committed by the applicant.

1. In brief submissions, the Minister submits that the applicant has one conviction relation to family violence, "common assault (dv)". The Minister notes that the applicant has claimed to be remorseful for his conduct, but has also denied its occurrence when being assessed by Dr Ram, which in the Minister's contention significantly undermines the credibility of the regret and remorse expressed by the applicant. To the extent the applicant and his wife now offer explanations of the offending contrary to the Statement of Facts, the contemporary explanations leading to the conviction should be preferred.
2. The Minister submits that given that the applicant has failed to seriously confront his conduct in relation to the offence, has failed to properly curb his drinking, and can rely on no evidence of rehabilitation in relation to family violence, the Minister contends that this primary consideration weighs heavily in favour of refusal.

1. "Family violence" is defined in par 4 of the Directions as follows:

family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:

1. Paragraph 8.2 of the Direction 110 states that the Australian Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. As the Minister submits, as the applicant has been convicted of "common assault (dv)", it is relevant to consider the seriousness of the family violence engaged with by reference to factors set out at 8.2(3):

(a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness; > > (b) the cumulative effect of repeated acts of family violence; > > (c) rehabilitation achieved at time of decision since the person's last known act of family violence, including: > > (i) the extent to which the person accepts responsibility for their family violence related conduct; > > (ii) the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children); > > (iii) efforts to address factors which contributed to their conduct; and > > (d) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.

2. I accept the applicant's submissions which are clearly correct. Given the matters relied on by the applicant, I am quite satisfied that this consideration favours the setting aside the Minister's refusal of the applicant's SRVB Visa.

Third primary consideration: The strength, nature and duration of ties to Australia

1. The applicant submits that:
   • he has lived in Australia for 17 years
   • he has raised his children here
   • he has built his career here
   • he has strong community and family support
   • he stable employment with positive character references.

1. The Minister accepts that the applicant has resided in Australia for 17 years, having arrived as an adult aged 27 years old, and concedes that this consideration weighs somewhat in the applicant's favour given his connections with his wife, brother, Australian children and the ties created through his employment.
2. However, outside of employment and family there is limited evidence of the applicant positively contributing to the broader community.
3. Therefore, the Minister submits that this primary consideration should only weigh only slightly in favour of granting the visa.

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

5. This is a matter where the applicant has two Australian citizen children, respectively 12 and 10, who have spent their entire lives in Australia, have visited Nepal but once and do not speak fluent Nepalese. The applicant has lived here for 17 years, and I do not consider that his offending began "soon after" arriving.
6. I consider the applicant's submissions to be far more persuasive than the Minister's on this issue. Given the matters relied on by the applicant, I am quite satisfied that this consideration strongly favours setting aside the refusal of the applicant's SRVB Visa.

Fourth primary consideration: Best interests of minor children in Australia affected by decision

1. The applicant submits:
   • removing the applicant would cause significant psychological, social, and educational harm to the applicant's children, who rely on him for emotional, financial, and caregiving support
   • his children are Australian citizens and would suffer cultural shock if relocated
   • the Minister's SOFIC incorrectly assumes that the applicant's wife would be allowed to stay in Australia. This is not the case as the applicant's wife is a dependent on the applicant's visa and if his visa were to be refused, his wife's visa would be refused consequentially. This would further directly impact the applicant's Australian citizen children by breaking down the family unity and causing separation of children from their parents
   • any separation would not only be against the best interest of the children but would also be in breach of Australia's obligation under the Convention on the Rights of the Child and against the principles of administrative decision making in Australia in cases involving children
   • The Minister places insufficient weight on this overriding factor. The applicant says that this primary consideration should weigh heavily in favour of the applicant and the best interests of his two Australian citizen children.

1. The Minister accepts that the applicant:
   • has two minor children aged 10 and 12
   • has been described as a devoted father, who is very involved in his children's daily care, and concedes that this consideration weighs in the applicant's favour.
2. However, the Minister submits that this finding should be tempered by the fact that the applicant's offending has in the past posed, and will in the future, pose a risk to his children both in possibly exposing them to family violence and physical danger should they be present during a drink driving offence as they have been in the past.

1. Addressing the matters in par 8.4(4) of the Direction, I find that:
   • the applicant has a close and loving relationship with each of his children, and has had respectively 112 and 10 years, that is their entire lives
   • the applicant as their father will continue to pay a positive parental role until they each turn 18
   • the applicant's conduct does not seem to have had a negative impact on his two children;
   • the children do not want to be separated from their father, the applicant, who has not been violent to his children or otherwise sexually or mentally abused them
   • there is no evidence that the children have suffered any physical or emotional trauma as a result of the applicant's conduct.
2. In those circumstances, I accept the applicant's submissions as being more persuasive than the Minister's. Given the matters relied on by the applicant, I am quite satisfied that this consideration strongly favours the setting aside the refusal of the applicant's SRVB visa.

Fifth primary consideration: Expectations of the Australian community violence

1. The applicant submits that the Australian community expects:
   • rehabilitation and reform to be recognised
   • non-separation of children with their parents and family unity
   • people to have a second chance after learning from mistakes.
2. The applicant further submits that he has shown:
   • exemplary conduct since 2023
   • psychological stability
   • low recidivism risk
   • strong remorse
   • community contributions
   • the Minister's submission that the community expects visa refusal does not align with evidence-based assessment.

1. The Minister submits that, notwithstanding the opinion provided that the applicant is a low risk of re-offending, the expectations of the Australian community weigh in favour of refusing the application in a circumstance where the applicant has committed acts of family violence and serious crimes of violence. Furthermore, given the nature of the harm, and the real risk of it occurring again, this consideration should weigh heavily in favour of refusal.

1. In relation to this consideration, 8.5(1) of the Direction states:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.

2. In accordance with par 8.5(4) of the Direction, I must consider the expectations of the Australian community as a whole and proceed on the basis of the Government's views expressed in the Direction, without independently assessing the community's expectations in the particular case.
3. In RCLN v Minister for Immigration, C_itizenship and Multicultural Affairs_ [2024] FCA 876 Horan J stated at [56]:

The assessment of community expectations is therefore not a matter of evidence, and does not turn on the personal circumstances of the individual non-citizen: compare, in relation to an earlier iteration of the Ministerial direction: FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [66] -[67] , [74] -[75] (Charlesworth J), [91]-[93], [103]-[104] (Stewart J); see also CKL21 v Minister for Home Affairs [2022] FCAFC 70; (2022) 293 FCR 634 at [29] -[30] (Moshinsky, O'Bryan and Cheeseman JJ). The "degrees of tolerance" referred to elsewhere in the Direction "are matters that fall for consideration by the decision-maker in the ultimate exercise of his or her discretion" (or, in the present context, the determination whether there is another reason to revoke the original cancellation decision), and "in determining whether it is appropriate to give more or less weight to a deemed community expectation of visa refusal that might otherwise arise simply because of the nature of the non-citizen's character concerns or offences": FYBR at [77] (Charlesworth J). In other words, the decision-maker can take into account the personal circumstances of the individual non-citizen in so far as they are relevant to another primary consideration or one of the other considerations, and adjust the relative weight to be given to each of the primary and other considerations accordingly.

4. As I accept that the applicant committed one act of family violence in 2016, I find that this primary consideration of the expectations of the Australian community weighs somewhat in favour of the refusal of the applicant's SRBV Visa.

1. Paragraph 9 of the Direction sets out 'other considerations' to be taken into account, including but not limited to:

1. The applicant does not address these matters. Rather, the applicant submits that, contrary to the Minister's submissions, the issue of "discretion, proportionality, and public interest" is of significant utility to this review process.
2. The applicant also maintains the comparison with case laws propounded by Australian courts in determining character issues under s 501 of the Migration Act under a different Ministerial Direction holds considerable weight in this review.

1. As to the legal consequences of the decision, the Minister submits that:

(1) the legal consequences of the Tribunal affirming the decision under review would be that the applicant would be liable to removal from Australia as soon as practicable and in the meantime, he would be subject to detention under s 189 of the Migration Act;

(2) the applicant would also be prohibited from applying for any visa other than a protection visa or a Bridging R visa while he remains in the migration zone: Migration Act, s 501E;

(3) the applicant has not raised any claims in relation to Australia's non-refoulment obligations.

1. On this basis, the Minister submits that this consideration should be given neutral weight.
2. As to the extent of impediments if the applicant was removed, the Minister notes that relevant considerations to the extent of impediment if removed are contained in par 9.2 of Direction, are the non-citizen's age and health; whether there are substantial language or cultural barriers; and whether there are any social, medical and/or economic support available to them in that country.
3. The Minister submits that:

(1) the applicant is a physically healthy 45 year old male who was born and raised in Nepal and speaks Nepalese fluently. Before coming to Australia, he studied at a tertiary level and worked professionally in Nepal in marketing roles. Given the applicant has spent the majority of his life in Nepal there are not any substantial language or cultural barriers to him if returned;

(2) the applicant has claimed that he will have limited support in Nepal. However, he has also conceded that his parents remain in Nepal and that his childhood was one of comfort, coming from a well-off family.

1. In those circumstances, the Minister submits that:

(1) the Tribunal can be satisfied that the applicant will be able to re-establish himself in Nepal and maintain basic living standards, in the context of those available to other Nepalese citizens, even if those standards are not the same as he may enjoy in Australia.

(2) in relation to available health medical services, the applicant will have access to health services, treatment and welfare services in Nepal, although the standard and ease of access may not be of the same high standard and as widely available as those services are in Australia. Further, the applicant is physically healthy, and his mental health issues appear to have resolved.

(3) should the applicant's wife and children remain in Australia, the Minister concedes that the separation would cause the applicant some practical and emotional hardship.

1. Overall, the Minister submits that the extent of impediments if removed is relatively minor and should weigh only very slightly in the applicant's favour.
2. As to the impact of the decision on Australian business interests, the Minister accepts that, until his visa cancellation, the applicant has generally been in steady employment, most recently by Australian BioResources, who are purported to be waiting for the applicant's return should he be granted his visa.
3. The Minister accepts that it is likely that the applicant's departure from the business has caused some disruption, but submits that there is nothing to suggest the impact is substantial or that the applicant's role could not be filed by anyone else.
4. For the purposes of paragraph 9.3 of the Direction, the Minister submits that there is no evidence that the decision to refuse the applicant's visa application will significantly compromise the delivery of a major project or delivery of an important service in Australia.

1. As to the legal consequences of the decision, it seems clear that the applicant and his wife would both be removed to Nepal. The position of the children is less clear. They would not be removed by the Government because, as citizens, they have a right to live here. Presumably they will either travel to Nepal with their parents, or they would remain in Australia and be brought up by their aunts and uncles.
2. I am satisfied that this consideration is of considerable weight in setting aside the refusal of the applicant's SRVB Visa.
3. As to the extent of impediments if removed, I accept the Minister's submission this is relatively minor and should weigh only very slightly in the applicant's favour.
4. As to the extent of impediments if removed, I accept the Minister's submission that the applicant's departure from the business has caused some disruption, but that there is nothing to suggest the impact is substantial or that the applicant's role could not be filed by anyone else.

1. Finally, the Minister also submits:
   1. To the extent the applicant introduces 'proportionality' as a consideration under Direction 110, this should be rejected by the Tribunal. In so doing, the applicant does little more than cavil with the decision of the delegate and the weighting therein, which serves little purpose in the context of the Tribunal's review.
   2. The representations advanced by the applicant in support of "submission 4" largely mirror factors for the Tribunal's assessment under the relevant considerations as articulated elsewhere within Direction 110. Equally comparison with outcomes in purportedly similar decisions made under a different Ministerial Direction is of little utility.
2. The applicant's submission on this matter are set out above.
3. This issue does not affect my reasoning or my conclusions.

1. In summary, the applicant submits that, in the circumstances of his case, in which he has been tried, deterred and released into the community, due regard must be given the fact that he has been residing in Australian community for almost two decades albeit with some deviation from the law.

1. In summary, the Minister submits that the applicant does not pass the character test pursuant to s 501(6) of the Migration Act. For the reasons outlined above, the Minister submits that the Tribunal should affirm the decision under review on the basis the primary considerations of 'the protection of the Australian community from harm' and 'the expectations of the Australian community' weigh heavily against the applicant.

1. I have found that the applicant does not pass the character test under s 501 of the Migration Act, and I must consider whether I should exercise the discretion to refuse the visa, having regard to the primary and relevant other considerations in the Direction, and weighing the various considerations in accordance with part [7] of the Direction, and in accordance with the authorities.
2. I must weigh the various primary and other relevant considerations outlined in the Direction against each other and undertake an evaluation of whether I should exercise the discretion to refuse the SRVB Visa.
3. In determining the weight to be applied to each consideration, I have considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction no. 110. I have gone on to compare and balance all of the considerations to determine whether I should exercise the discretion to refuse the SRVB Visa.
4. I have made the following findings concerning the relevant primary considerations in the Direction:

(1) protection of the Australian community against criminal and other serious conduct weighs in favour of refusing the applicant's SRVB visa; > > (2) the family violence consideration strongly favours the setting aside the refusal of the applicant's SRVB visa; > > (3) the strength, nature and duration of ties to Australia strongly favours the setting aside the refusal of the applicant's SRVB visa; > > (4) the best interests of the minor children strongly favours the setting aside the refusal of the applicant's SRVB visa; > > (5) the expectations of the Australian community weigh somewhat in favour of the refusal of the applicant's SRVB Visa.

5. I have made the following findings concerning the other considerations:

(1) the legal consequences of the decision are of considerable weight in setting aside the refusal of the applicant's SRVB Visa; > > (2) the extent of the impediments if the applicant were removed to Nepal is a neutral consideration; > > (3) Australian business interests is a neutral consideration.

6. However, compliance with the Direction is not achieved by focussing upon the weight I have given to the various considerations in isolation. In deciding this case, I must "bring together the considerations as part of a single evaluation of their relative significance thereby weighing them all together": CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138. In the Court stated at [35]:

The balancing process is directed to determining whether there is "another reason" why the visa cancellation should be revoked. It requires an identification of the matters that may constitute "another reason" and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute "another reason" capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.

7. As noted above, par 7.2 of the Direction states that the primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations.
8. I have found that the protection of the Australian community, and the expectations of the Australian community weigh in favour of refusing the applicants application for a SRBV Visa. Balanced against this are the family violence consideration, the strength, nature and duration of ties to Australia and the best interests of the applicant's minor children, and the legal consequences of the Minister's decision to refuse the application for the SRVB Visa.
9. In my view, this is a case where the protection of the Australian community and the expectations of the Australian community does not required that the applicant's application should be refused. Bringing together all the considerations set out above as part of my single evaluation of their relative significance and weighing them all together,[60] my conclusion is that the correct and preferable decision is to set aside the Minister's decision of 24 September 2025 and to substitute a decision not to refuse the grant of the visa under s 501(1) of the Migration Act.

1. The decision of a delegate of the Minister dated 24 September 2025 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa is set aside and substituted with a decision not to refuse the grant of the visa under s 501(1) of the Migration Act 1958 (Cth).

[18] HB, 214-215, dated 4 November 2025.

[19] HB, 216-217, dated 4 November 2025.

[26] HB, 230-238, dated 18 November 2025.

[39] There are in fact two letters or reports of Ms Flack, see [67]-[71] below.

[40] Apparently, this was because of the applicant's visa status.

[42] Mr N Pokharel is not related to the applicant or his family.

[43] I note that "common assault (DV)" is how the charge is recorded on the Check Results Report. In the Facts Sheet there is a similar reference, namely "Common assault (dv)". However, s 61 of the Crimes Act, set out above, does not include any such reference to "dv". This appears to be surplusage recorded in the Facts Sheet which was then reproduced in the Check Results Report.

[53] The Minister refers to statements dated 9 March 2018, 6 September 2023 and 4 November 2025. To this can be added the applicant's statement of 25 November 2025, and his oral evidence at the hearing.

[58] The Minister refers to statements dated 9 March 2018, 6 September 2023 and 4 November 2025. To this can be added the applicant's statement of 25 November 2025, and his oral evidence at the hearing.

[60] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [28].