1. The parties appeared in-person before the Tribunal on 15 and 16 December 2025. The Applicant was self-represented and assisted by a Burmese interpreter. The Minister was represented by Mr Lucas Roosendaal of Sparke Helmore Lawyers.
2. The following documents were marked as exhibits:

(a) Joint Hearing Bundle, including the Minister's Statement of Facts, Issues and Contentions (RSFIC) and the Department of Foreign Affairs and Trade Country Information Report for Myanmar dated 7 April 2025 (DFAT Report) (843 pages) (Exhibit 1); > > (b) Notification of grant of a refugee visa dated 5 December 2016, including interview notes and statutory declaration made by the Applicant, each dated 15 November 2016 (nine pages) (Exhibit 2); > > (c) Department of Justice (WA) - History of Board Secretariat Decision Slips - Offender dated 16 December 2025 (one page) (Exhibit 3); and > > (d) Healthcare Australia, Current Medication Chart for the Applicant dated 16 December 2025 (two pages) (Exhibit 4).

3. The Applicant did not adduce any documentary or other evidence in support of the review beyond the scant material provided to the delegate (being a completed 'personal circumstances form', a five-page statement dated 17 March 2025 provided in support of a protection visa application and prepared by Refugee Legal, and an undated letter seeking to 'revoke' his previous withdrawal of that protection visa application).[18]
4. At hearing, the Applicant was advised, in simple terms, of his right to invoke the privilege against self-incrimination prior to his giving evidence.[19]
5. As summarised at paragraph [7] above, the Tribunal was provided with evidence indicating that the Applicant was assessed by a psychiatrist in November 2023 for the purposes of assisting the Magistrates Court to decide whether he was fit to stand trial under the provisions of the Criminal Law (Mental Impairment) Act 2023 (WA) (CLMI Act). The psychiatrist, Dr Nicholas W Ho, diagnosed the Applicant with:

...a major illness, namely Psychotic Disorder. The two differential diagnoses for this condition is either that of Schizophrenia or of chronic Alcoholic Hallucinosis. Additionally, [the Applicant] displays evidence of a Neurocognitive Disorder, which is presumably secondary to his severe Alcohol Use Disorder that is in remission only in a controlled environment (being in custody).[20]

6. The Applicant was reviewed by two psychiatrists in immigration detention in July and August 2025, respectively:[21]

(a) The first assessment was conducted by Dr RM.[22] This medical practitioner had seen the Applicant in prison, however they appeared to have limited access to records from that time.[23] It was noted by the clinician that the Applicant had likely been 'diagnosed and treated for Schizophrenia in prison with depot anti-psychotic administered. He has declined this at YHIDC.'[24] The clinical notes for first review are in following terms: > > Reviewed: > > Co-operative with review but difficult as suboptimal historian and preferred to discuss his own topics. Emphasised that he wants me to document that he either needs to be released or returned home. Very unhappy to be in detention with other people's loud music and intrusiveness. Doesn't want to be around others. Feels he was unjustly treated by the police with false convictions with strong feelings of injustice. > > He explained his recent behaviours - altercation with a fellow detainee as [the Applicant] disclosed to him that he has a small "slingshot" (penis). [The Applicant] then reported the man started to mock him and call him homosexual. Angry about this. He reported sleeping in the laundry etc as he hates the sounds of other people's music. > > [The Applicant] made it quite clear he does not want the depot anti-psychotic that he was given in prison. Adamant that he has not heard [auditory hallucinations] since [January] 2024. He recalled he just [used] to experience images of people's private parts which upset him - these no longer occur. He denied all psychotic symptoms. He denied all risk issues. > > On [Mental State Examination (MSE)]: > > Short statured Burmese man, missing teeth, poor dentition, very strong nicotine malodour. Good eye contact. Suboptimal historian - exact details with dates, but poor recall of other aspects of his health journey. Restricted affect, capable of reactivity, reported feeling angry. Difficult to assess degree of thought disorder give his suboptimal command of English and heavy accent. Generally he remained on topic and he made no bizarre statements. He denied perceptual disturbances or other psychotic symptoms and nil evident in review. He denied thoughts to harm self and others. Intellect likely borderline. Insight adequate. > > Impression: > > Alcohol abuse disorder - currently in remission > > Previous psychotic symptoms - possibly related to alcohol hallucinosis, differential diagnosis schizophrenia > > Nicotine dependence > > Suboptimal cognition - unclear if this is congenital or secondary to long-term alcohol abuse > > Recent altercation with detainee > > Medications: > > [Antipsychotic medication] - Two week trial - new > > Plan:

7. [Applicant] has agreed to trial [new medication] for two weeks, although he made it clear he may change his mind.
8. He has declined all other medications.
9. Re-book with psychiatry in 4 weeks to ratify above impression and assess for any further problem behaviours.
10. Ongoing support with [Mental Health Nurse] as required.[25]

(b) The second review was conducted by Dr SS. His clinical notes relevantly indicate: > > Reviewed: > > Wants a single room as he does not want electronic items around him as he believes they make him sick and nauseous. Said he wants to stay away from other people as they also mock him and he wants to stay alone. > > Shows very poor contemplation of ceasing alcohol use completely. Said he has no psychotic issues currently. He denied any ideas of harm to others. Said he does not want to return [to Myanmar] as his family does not want him returning, but he is not opposed to detention. > > Kept talking about wanting a single room for himself. > > On MSE: > > Short statured Burmese man, missing teeth, poor dentition, displays normal [psychomotor agitation (PMA)] and speed productivity with loud tone and prosody. > > Mood and affect restricted, but otherwise appropriate. > > Thought - denied any delusional thinking. However, wants to continue drinking alcohol once he is out of detention. Does not believe that it is harmful in any way. > > Perception - denied any perceptual abnormalities. > > Insight - minimal > > Assessment:

11. Alcohol use disorder with complicated withdrawal.
12. Possible anxiety disorder associated with use of electronic items.

13. May benefit from a single room accommodation.
14. Will also benefit from starting an [selective serotonin reuptake inhibitor (SSRI)] to help with anxiety and craving.
15. Thiamine to be given if not already given.[26]
16. Concerns were expressed at YHIDC in September and October 2025 regarding the Applicant's compliance with his antipsychotic medication, including reported observations of him responding to unseen stimuli within the detention centre.[27]
17. The Applicant requested, and was allowed, to self-administer his own medication in October 2025.[28]
18. The Tribunal was provided with a list of the Applicant's current medication, which includes an antipsychotic, a drug for benign hypertension, Vitamin B1 relevant to his past alcohol use and an SSRI.[29]
19. During the Tribunal hearing, the Tribunal developed some concerns regarding the Applicant's fitness to participate. For most of the first day, the Applicant generally had an observable 'restricted affect' (narrow range of emotions) but could respond to questions asked of him. He was heavily reliant on the interpreter and almost exclusively focused on emphasising the point that he needed to be released from immigration detention as soon as possible. However, towards the end of that day, the Applicant's affect changed. He was far more animated, responsive to questions and wished to speak primarily in English. On the second day of hearing, the Applicant's affect was once again restricted and he wished to exclusively use the interpreter. The Applicant was asked about his sexual offences, which he denied. He then said 'because of alcohol I am having all of these issues, so I want to stop.' The Tribunal asked him why he now realises that he has issues with alcohol use. He responded, 'because I cannot function as a male (interpreter comment, sexually) and the police might want to kick out homeless people, that is what I thought'. The Tribunal asked what this meant, and he said that he was 'in prison six times, when I got out I was looking for homeless people and there was no one there.' The term 'homeless people' was defined by the Applicant to mean 'the people queuing for food, whom he could not find.' The Tribunal asked what impotency and fellow homeless people had to do with the Applicant's decision not to drink alcohol in the future. The Applicant responded that the 'main reason is because I have been detained like this; thought the problem must be due to alcohol.' Following this rather odd exchange, the Tribunal asked the Applicant whether he knew the date. He did not, nor the day of the week, but he did know that it was December.
20. The Tribunal raised with the Minister's counsel, and explained to the Applicant, the decisions in SCAR v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 1481 and Minister for Immigration, Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 (SCAR FFC).[30] In SCAR FFC, the Full Court held that a decision of the then Refugee Review Tribunal was affected by jurisdictional error when the Tribunal proceeded with a hearing where, unknown to the Tribunal, the applicant before it was not in a fit state to take part in the hearing by reason of his extreme reaction to the news of the death of his father.
21. Following a brief adjournment, the Minister sensibly sought to end the Applicant's cross-examination at that juncture and to proceed to argument on how the Tribunal should dispose of the review based primarily upon the documentary evidence before it.
22. The Applicant stated that he had been compliant with taking his medications and was focused on securing his release forthwith.
23. In NAMJ v Minister for Immigration, Multicultural and Indigenous Affairs (2003) 76 ALD 56,[31] Branson J observed that SCAR FFC 'provides little assistance as to the content of the requirement that an applicant be fit to give evidence and present argument to the Tribunal' and that it was necessary to 'identify the standard of fitness that the legislature is presumed to have intended to be implicit' in the Migration Act's requirement to invite a review applicant to a hearing ([51]). Her Honour noted that the legislature were assumed to be aware that 'determinations of refugee status may need to be made in respect of individuals suffering mental and emotional disturbances' and that 'for this reason it seems unlikely that the legislature would have intended to set a jurisdictional standard of "fitness" that might prevent a significant number of individuals seeking asylum in Australia from being able to progress applications before the Tribunal to the stage of a hearing when the Tribunal is not able to decide the applications "on the papers". That is, it seems likely that the legislature intended that a Tribunal hearing should be able to proceed notwithstanding some measure of psychological stress or disorder in the applicant. The decision in [SCAR FFC] establishes, however, that there is a point at which an applicant's psychological state renders a Tribunal hearing a nullity' ([52]).
24. The Tribunal would respectfully apply that reasoning to an application of this kind under Pt 9 of the Migration Act, particularly in circumstances where the Tribunal is dealing with the cancellation of a refugee visa and where it must determine this review within 12 weeks of the Applicant being notified of the reviewable decision (with no power to extend that timeframe to enable consideration of the appointment of a 'litigation supporter',[32] including any associated referral for psychiatric assessment, or for the identification of an appropriate 'supporter' and for any necessary or appropriate guardianship/administration orders to be made by the State Administrative Tribunal should they be required).
25. The Tribunal notes that the Applicant was determined to be fit to stand trial in the Magistrates Court of Western Australia in late 2023, against the provisions of Div 2 of Pt 3 of the CLMI Act. The criteria in s 26 of the CLMI Act appears to accord with the common law.[33]
26. In Eastman v The Queen (2000) 203 CLR 1,[34] Gleeson CJ referred to a number of propositions that were recorded by the Ontario Court of Appeal in R v Taylor (1992) 77 CCC (3d) 551 (R v Taylor), as representing the state of authority in that province and noted that, while the ultimate test to be applied in the case before the High Court was the statutory test applicable in the relevant jurisdiction (in that case, the ACT), the propositions recorded in R v Taylor were sound and consistent with the statutory test (14-15 [26]-[27]). Those propositions are:

(a) The fact that an accused person suffers from a delusion does not, of itself, render him or her unfit to stand trial, even if that delusion relates to the subject-matter of the trial. > > (b) The fact that a person suffers from a mental disorder which may cause him or her to conduct a defence in a manner which the court considers to be contrary to his or her best interests does not, of itself, lead to the conclusion that the person is unfit to stand trial. > > (c) The fact that an accused person's mental disorder may produce behaviour which will disrupt the orderly flow of a trial does not render that person unfit to stand trial. > > (d) The fact that a person's mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not mean that the person is unfit to stand trial.[35]

27. In BIF23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 44; (2024) 99 ALJR 75 (BIF23),[36] the High Court determined that the mandatory cancellation regime found in s 501 of the Migration Act was predicated upon an assumption that the persons whose visas are subject to cancellation on account of their having a 'substantial criminal record' will not be subject to mental capacity at least in the sense that they did not previously lack the capacity to be held criminally responsible or fit to plead ([41]-[43], [60] per Gordon A-CJ, Edelman and Steward JJ; [75], [80]-[81], [92] per Jagot and Beech-Jones JJ).
28. In BIF23, Jagot and Beech-Jones JJ held that the principles identified in the context of fitness to stand trial 'inform the nature of the mental incapacity that the mandatory cancellation scheme pre-supposes in persons whose vias are subject to mandatory cancellation .... and, thereby, the nature of the incapacity that will vitiate the performance of the Minister's [and the Tribunal's] duties in [ss 501CA(3)-(4)] ([85]). Their Honour's observed that 'mental capacity is not, of course, a singular concept' ([86]).
29. The Tribunal has summarised the psychiatric assessments before it above. It is well established that, where there is uncontradicted expert evidence, in the absence of evidence or circumstances which could displace or cast doubt upon that evidence, a tribunal of fact should not make findings contrary to that expert evidence.[37]
30. The legal framework for the Tribunal's decision in this matter is set out below. The Tribunal notes that the mandatory cancellation in this case is predicated upon the existence of the circumstances set out in s 501(6)(e) of the Migration Act (conviction or finding of guilt for sexually based offences involving a child) rather than the Applicant (solely) having 'a substantial criminal record' for the purposes of s 501(7) of the Act.
31. The Tribunal considered that the Applicant knew the purpose of the Tribunal hearing, including that it was about whether he should be permitted to remain in Australia. It was less clear that the Applicant was able to give a comprehensive and lucid account of his life story or that he was able to meaningfully grapple with some of the legal issues identified by the Minister regarding his migration status. However, the Applicant was able to clearly articulate his position on most of the issues for consideration, particularly whether he posed a risk to the Australian community. He considered that he had not engaged in the unlawful conduct for which he has been convicted, and that he did not pose a risk of committing further such offences.
32. During the hearing, the Tribunal endeavoured to summarise important concepts to the Applicant in plain English and it asked him questions directed at the issues to be decided. It was clear that the Applicant understood most of those questions. It was only his evidence on the second day of hearing (quoted above) which was particularly suggestive of incapacity.
33. The Tribunal has borne in mind the Applicant's diagnosed mental health issues when assessing his oral evidence.

1. In approaching the information and evidence before the Tribunal, the Tribunal notes that:

(a) its procedures are generally discretionary and are to be based upon the circumstances of the proceeding, including any provisions of the enabling act and the ART Act and rules;[38] > > (b) it must act with as little formality and technicality as a proper consideration of the matters before the Tribunal permits;[39] > > (c) it is not bound by the rules of evidence but may inform itself on any matter in such manner as it considers appropriate.[40] Relevantly, cl 7(1) of Direction no. 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) reinforces this point by providing that, when applying the relevant considerations pertaining to the decision to be made, 'information and evidence from independent and authoritative sources should be given appropriate weight_';_ > > (d) the procedural flexibility accorded to the Tribunal does not absolve it from the obligation to make findings of fact based upon material which is logically probative in which the rules of evidence provide a guide;[41] > > (e) when making findings of fact which have 'serious' or 'grave' consequences to a party, the Tribunal is free to consider the evidence and other material that is before it - and the more centrally relevant a particular fact may be to the decision reached, the Tribunal would express greater caution in evaluating the factual foundation for it;[42] > > (f) where adverse findings are sought to be inferred from circumstantial evidence, the Tribunal will have regard to well-known principles for drawing inferences of that kind, which require the Tribunal to: > > > (i) consider the weight to be given to the united force of all of the circumstances taken together; > > > > (ii) apply the standard of proof at the final stage in the reasoning process; > > > > (iii) weigh the inference to be drawn from the proven facts against realistic possibilities as distinct from possibilities that might be regarded as fanciful; and > > > > (iv) find the allegation is not proved where there are competing possibilities of equal likelihood or where the choice between them can only be resolved by conjecture.[43]

1. The question for determination by the Tribunal is whether the decision not to revoke the mandatory cancellation of the Applicant's refugee visa is the 'correct or preferable decision' on the material before the Tribunal.[44]
2. Section 501CA(4) of the Migration Act provides that a mandatory cancellation may be revoked if:

(a) the Applicant makes representations in accordance with the invitation to do so given by the Minister under s 501CA(3); and > > (b) the decision-maker is satisfied that: > > > (i) the Applicant passes the character test (as defined by s 501); or > > > > (ii) there is another reason why the mandatory cancellation should be revoked.

3. In Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 27; (2022) 275 CLR 582 (Plaintiff M1/2021), the majority of the High Court described this section of the Migration Act as conferring 'a wide discretionary power' to revoke a mandatory cancellation if the decision-maker (whether the Minister, their delegate, or the Tribunal on review of a delegate's decision) is satisfied that there is 'another reason' why the cancellation should be revoked.[45] The majority held that the assessment of whether there was, in fact, 'another reason' was to be undertaken by reference to the representations made by the Applicant.[46]
4. In reviewing decisions of this kind, the Tribunal must comply with the Direction given by the Minister under s 499(1) of the Migration Act.[47] This is a legislative constraint on the Tribunal's process of reasoning.[48] However, as the Full Court identified in Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582,[49] the principles stated in Drake (No 2)[50] regarding the application of governmental policy, and the Tribunal's ability to depart from it where appropriate, remain applicable.
5. Informed by the principles set out in cl 5.2 of the Direction, the Tribunal must 'take into account' the factors identified in cls 8 and 9 of the Direction (where relevant) in deciding the application.[51] In this review, those relevant factors are:

(a) the protection of the Australian community from criminal or other serious conduct; > > (b) the strength, nature and duration of ties to Australia; > > (c) the expectations of the Australian community; > > (d) the legal consequences of the decision; and > > (e) the extent of impediments if removed.

1. The Applicant was notified of the mandatory cancellation decision on 10 January 2025 by hand and whilst he was in State custody.[52] This notice complied with requirements of ss 501CA(3) and 501CA(3A) of the Migration Act, read with reg 2.55(3)(a) of the Migration Regulations.
2. Regulation 2.52(2)(b) provides that any representations seeking revocation of a mandatory cancellation decision must be made to the Minister within 28 days after the person is given notice of the mandatory cancellation.
3. Regulations 2.52(3) to 2.52(6) set out the way representations are to be made, including that they are to be in English (or accompanied by translation) and that they must include specified information, such as personal identifiers and 'a statement of the reasons on which the person relies to support the representations.'
4. The Applicant made representations seeking revocation of the cancellation decision within the specified timeframe, on 10 January 2025.[53] These representations complied with the content requirements of the Migration Regulations.
5. Accordingly, the Tribunal is satisfied that Applicant made representations in accordance with the invitation for the purposes of s 501CA(4)(a) of the Migration Act.

1. The Tribunal must decide whether the Applicant passes the character test as defined by s 501 of the Migration Act.[54] Failure to pass the character test arises as a matter of law.[55]
2. Section 501(6)(a) of the Migration Act sets out that a person does not pass the character test if 'the person has a substantial criminal record (as defined by subsection (7))'. The term 'substantial criminal record' includes when 'the person has been sentenced to a term of imprisonment of 12 months or more_'_[56] and, when they have been 'sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more'.[57] Section 501(7A) provides that if a person has been sentenced to two or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms for the purposes of the character test.
3. Section 501(6)(e) of the Migration Act provides that a person does not pass the character test if a court in Australia or a foreign country has (i) convicted the person of one or more sexually based offences involving a child; or (ii) found the person guilty of such an offence, or found a charge against the person proved for such an offence, even if the person was discharged without a conviction.
4. Item 7(2) of Section 2 of Annex A to the Direction observes that 'sexually based offences involving a child include, but are not limited to, offences such as ... (b) indecent dealings with a child'.
5. In VRRQ v Minister for Immigration and Multicultural Affairs [2025] FCA 983 (VRRQ), Button J held that the terms 'sexually based' and 'involving a child' 'directs attention to the qualitative aspects of the offence' ([60]). Her Honour also held that s 501(6)(e) of the Migration Act uses the ordinary meaning of the word 'child', which means someone who is under the age of 18 ([62]).
6. On 10 March 2021, and following a trial before Vernon DCJ and a jury, the Applicant was convicted in the Perth District Court of two sexual offences involving children, namely:

(a) On 16 July 2019, indecently dealing with a 12-year-old child by kissing her on the forehead and nose, contrary to s 320(4) of the Criminal Code (WA) (Criminal Code); and > > (b) On 7 September 2019, unlawfully and indecently assaulted a 16-year-old child by kissing her on the lips, in the presence of her 12-year-old sister, contrary to 324(1) of the Criminal Code.[58]

7. On 7 March 2023, the Applicant was convicted on his own confession in the Perth Magistrates Court before Magistrate Matthews of making a threat to injure, endanger or harm, a 16-year-old girl on 9 February 2022, contrary to s 338(1)(b)(iii) of the Criminal Code.[59] The facts of this conduct were that the Applicant approached the girl (Miss E) at the Maddington Shopping Centre and sat down next to the victim, almost touching her. He asked if she was 16 and she replied that she was. The Applicant 'then said something else to the victim, indicating he liked little girls and does something to them, before telling the victim he wanted to murder her'.
8. On 6 December 2024, the Applicant was convicted on his own confession in the Perth Magistrates Court before Magistrate Hall of unlawfully and indecently assaulting a 17-year-old girl (Miss A) on 1 June 2024 by touching the child on the upper thigh near her vagina, contrary to s 323 of the Criminal Code.[60]
9. The Tribunal finds that a court in Australia has convicted the Applicant of one or more sexually based offences involving a child. He does not pass the character test found in s 501(6)(e) of the Migration Act.
10. The Applicant has also been sentenced to terms of imprisonment as follows:

(a) Perth Magistrates Court on 6 December 2024: 8 months' imprisonment (concurrent, CC), from 1 June 2024; > > (b) Perth Magistrates Court on 20 December 2023: 12 months' imprisonment, from 25 May 2023 (27 months for the purposes of s 501(7A) of the Migration Act); and > > (c) Perth District Court on 10 March 2021: 7 months' imprisonment, from 9 August 2020.

11. The Tribunal finds that the Applicant does not pass the character test found in s 501(6)(a) of the Migration Act because he has a 'substantial criminal record' as defined in ss 501(7)(c) and 501(7)(d) of the Migration Act.
12. The Tribunal is therefore not satisfied that the Applicant passes the character test for the purposes of s 501CA(4)(b)(i) of the Migration Act.

1. As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the representations made by the Applicant, and to any relevant primary and other considerations contained within the Direction, there is 'another reason' why the Cancellation Decision should be revoked.

1. The Tribunal is required to consider whether the Australian community requires protection from harm said to have arisen from the criminal activity or other serious conduct engaged in by the Applicant to date, and from any risk of such harm arising in the future.[61] This is a two-stage process, requiring consideration of both the nature and seriousness of conduct to date, and the risk to the community if further offences are committed or the Applicant engages in other serious conduct.[62]
2. It should be noted at this juncture that the Tribunal is not sentencing the Applicant for his past deeds. That has already happened. Rather, the Tribunal must assess whether his 'continued presence here would be opposed to the safety and welfare of the nation'.[63]
3. The concept of 'risk', and whether it is 'unacceptable', under cl 8.1.2(1) of the Direction is not the same thing as the 'likelihood of the non-citizen engaging in further criminal or other serious conduct'.[64] For this purpose, an 'unacceptable risk' is a risk which the Tribunal considers to be 'unacceptable' having regard to a variety of considerations, including:

(a) the nature and seriousness of the Applicant's criminal offending and other conduct to date (including the sentences imposed by the courts for a crime or crimes); > > (b) the likelihood of the Applicant engaging in further criminal or other serious conduct; and > > (c) the nature of the harm that could be caused by further offending.

4. The Direction informs the Tribunal's risk assessment, at cls 5.2, 8.1(1), 8.1.1(1), and 8.1.2(1), by reiterating, amongst other things, that the Executive Government:

(a) is committed to 'protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens'; > > (b) considers identified types of conduct to be 'very serious' or 'serious'; and > > (c) considers that 'the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.'

5. It follows that the 'risk' referred to in the balancing exercise contemplated by those clauses of the Direction is not any risk that an applicant may commit further criminal or other serious conduct but is calibrated towards the Tribunal's assessment of the nature and degree of the harm said to be in prospect in the case at hand.

Nature and seriousness of the conduct to date

1. The Applicant's criminal and other serious conduct is summarised in Annexure A, including the sentences imposed by the courts for various offences.
2. The Applicant denied the offending. The Tribunal is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence are necessarily based.[65] Where the conviction and sentence are the foundation of the exercise of the power vested in the Minister by ss 501(3A) and 501CA(4) of the Migration Act, the Tribunal, when reviewing the Minister's decision, may not impugn or 'go behind' either the conviction or sentence.[66]
3. It has long been held that weight to be given to any convictions which may be proved in subsequent civil proceedings is a matter for the administrative decision-maker.[67] However, the Tribunal cannot accept the Applicant's contrary version of events without a compelling explanation as to why the criminal proceedings should not be taken as proof of the facts underlying his conviction or sentence.[68] Moreover, the Applicant cannot advance a factual position that undermines the relevant sentence which gave rise to his visa being cancelled as 'another reason' why that cancellation should be revoked.[69]
4. The Applicant's evidence to the Tribunal was that he did not remember most of the conduct for which he has been convicted. He indicated that he remembered the most recent indecent assault charge from June 2024 (being that he indecently touched a 17-year-old girl on the upper thigh near her vagina). He did not remember how those events occurred, but he did remember telling the magistrate that he had 'no intention to touch minors'. The Tribunal asked the Applicant why this was the case, and the Applicant said 'it was long ago; according to the knowledge from where I lived in [Myanmar], the female can only get married when they turn 18 and I do not have any idea or intention to say some or have a girlfriend or talk to someone to be a girlfriend when they are not 18. I am not going to propose like a girlfriend/boyfriend type of thing to those girls under 18.' The Tribunal then asked the Applicant whether he had previously had a girlfriend, and he said that he had never had a relationship before. The Tribunal asked the Applicant why he entered a guilty plea to the June 2024 indecent assault charge, and the Applicant said this was based on advice from his then solicitor that if he 'admitted the charges of the police he will not be staying in goal for long.'
5. The genesis of the reviewable decision is the satisfaction of a delegate of the Minister that the Applicant did not pass the character test because of the operation of s 501(6)(e) of the Migration Act (reliant upon the Applicant's convictions in the Perth District Court in March 2021) and that the Applicant was serving a sentence of imprisonment on a full-time basis in January 2025 for an offence against a law of Western Australia (namely the sentence of imprisonment imposed by the Perth Magistrates Court on 6 December 2024 for one count of unlawful and indecent assault committed on 1 June 2024).
6. The Tribunal is not satisfied that the Applicant has provided a compelling explanation as to why the documentary records of the multiple criminal proceedings in this State provided to the Tribunal should not be taken as proof of the facts underlying his respective convictions or the sentences imposed.
7. The Tribunal notes that a psychiatrist thought in January 2021 that the Applicant had no memory of his offences in 2019 because of alcohol induced psychosis and theorised that he was unable to accept that he had done the things he was accused of, which in turn would affect his capacity to feel any remorse for his offending.[70] That opinion may still hold in respect of the Applicant's subsequent convictions.
8. The Applicant's conduct to date includes the following:

(a) 1 June 2024, unlawful and indecent assault:[71] the Applicant approached a 17-year-old girl (Miss A), sitting next to her friend, in Forrest Place in the Perth CBD. He has asked whether he could sit next to her to which she has hesitantly agreed. The Applicant sat next to the victim and began playing with her jumper before moving to her bag, which was in between the two of them. He then moved closer, so that their shoulders were touching. The victim has said that this was making her uncomfortable. He then placed his right hand on the inside of the victim's upper left thigh, near her vagina. He then mumbled words to the effect of 'I love you'. The victim has then said, 'I am uncomfortable, I am a minor, this is not okay' and left the seated area immediately. She later saw the Applicant approaching other females in a similar fashion and reported the incident to a local government worker, who called police. The Applicant was arrested at the scene, charged and refused bail. > > (b) 25 May 2023, unlawful and indecent assault:[72] the Applicant has approached a female busker on the Murray Street Mall in the Perth CBD (Ms KT). He recognised her because of the incident on 18 May 2023 (below). The Applicant has sat down next to the victim and tried to kiss her whilst placing his arms around her, he has attempted to move her face towards him with his hands. He has said to the victim that he loves her and repeatedly said words to the effect that he wanted to marry her. The victim has felt uncomfortable and punched the Applicant away from her. He has identified himself by name when asked by the victim and has then attempted to touch her arm. She has told him to stop. He then put his right arm around the victim's left shoulder and over her neck. She told the Applicant she would call security if he did not leave her alone and has removed his arm from her shoulder. While he was lowering his arm, he has run the fingers of his left hand up the victim's left thigh towards her genital area. The victim has stood up and started walking down the mall. The Applicant followed her, offering to buy her a coffee and placing his arm over her shoulder. This stopped when the victim found a nearby acquaintance, who warned the Applicant to leave her alone. The Applicant has then walked away but was apprehended by police shortly thereafter for another matter. > > (c) 18 May 2023, unlawful and indecent assault:[73] the Applicant has approached Ms KT in the Murray Street Mall. He has sat down next to her and started to touch her shoulder and proceeded to move his hand down to the point that this palm was placed over her clothing on her genitals. The victim has told the Applicant to stop touching her there and used her hands to move his away and stood up. As she did so, the Applicant has placed one hand on her bum and lightly squeezed it. The victim has then walked down the mall towards Kmart, seeking help. The Applicant followed her for short period before leaving the area. > > (d) 16 April 2023, unlawful and indecent assault:[74] the Applicant has approached a woman (Ms SJ) in the designated smoking area of the Universal Bar and Nightclub in Northbridge in the early hours of the morning. He has walked up behind the victim, placed his hand under her dress and squeezed her upper leg/bottom causing her to be startled. He has then walked around the victim (and her friend) and stood there having a cigarette. He was evicted by security thereafter. > > (e) 4 April 2023, unlawful and indecent assault:[75] the Applicant has approached an 18-year-old female with a learning disability (Ms JS), who was sitting outside the Carousel Shopping Centre in Cannington. He has put his hand out to shake her hand. The victim was nervous and polite. She took his hand even though it made her uncomfortable. The Applicant has grasped the victim's hand and said words to the effect of 'I will give you pleasure'. He has then sat down next to the victim on her right-hand side. He repeated similar words and has put his left arm around the victim's back and pressed on her left shoulder area, hugging her. The victim has immediately shrugged him away and moved further along the bench. She has messaged her mother by telephone, who told her to go to security. She stood up and the Applicant did too. She has then sat back down, and the Applicant has stood in front of her. He reached down and touched the victim's right knee and the area above her knee towards her thigh with his right hand. The victim has said 'no, thanks' and has moved further down the bench, before standing up and walking towards the shop to get help. The Applicant has called after the victim words to the effect of 'let me help you'. The victim found security, and the Applicant was arrested by police shortly thereafter. > > (f) 9 February 2022, unlawful and indecent assault: at about 2.45pm, the Applicant has approached a 19-year-old female (Ms AJC) sitting at a bus stand at the Kelmscott Train Station and sat next to her. He has placed his right arm around the victim's shoulders, pushing her to his chest. He has asked her if she is single and whether she wishes to marry him. She has replied to the Applicant words to the effect of 'no, I have a boyfriend, and he will not appreciate your arm being around me'. The Applicant then reached over and grabbed Ms AJC's left breast, outside her clothing for approximately 3 seconds. The victim has moved her arm to shift the Applicant's hand away from her breast and said words to the effect of 'do not do that'. He has then moved his hand away, before looking at her for a second or two and then returning his arm back towards her chest, with his hand brushing her left breast. The victim has stood up, grabbed her belongings and walked away. She reported the incident to transport officers at the station and to police thereafter. The incident was visually captured on CCTV. > > (g) 9 February 2022, made a threat to unlawfully do an act: Following the events at the Kelmscott Train Station described at paragraph [75(f)] above, the Applicant has approached a 16-year-old (Ms E) at the Maddington Central Shopping Centre at about 4.24 pm in the manner summarised at paragraph [57] above. The incident was visually captured on CCTV. > > (h) 7 September 2019, Aggravated indecent assault:[76] at about 7.30 pm, the Applicant has approached four girls outside David Jones in the Murray Street Mall. One of them, Miss TF, was 16 years of age. She was there with her 12-year-old sister, Miss JF, and their friends, Mesdames CS and AS. He has asked them for a cigarette and Miss JF has given him the end of the cigarette she was smoking. One of the girls asked him to take their photograph with Mis JF's mobile telephone and handed that over to him. The Applicant has given his bottle of beer to Miss AS. The Applicant took that photograph and Miss TF has then taken the mobile back from the Applicant and Miss AS has given the Applicant back his beer bottle. The Applicant then asked Miss TF if he could kiss her. She said no. He then suddenly put his arms around Miss TF and kissed her on the cheek and on the lips. The Applicant's mouth was open at the end of kissing her cheek and when he kissed her on the mouth. He then let go of Miss TF and the four girls walked towards the McIver Train Station. The Applicant was the subject of a protective bail condition at the time (for the offence summarised at paragraph [76(i)] below), not to approach within five metres of any female child under 18 years.[77] > > (i) 16 July 2019, indecently dealt with a child under 13 years:[78] at about 5.00pm, Miss An S was sitting on a bench with her friend, Miss AV, in Stirling Gardens in the Perth CBD. The Applicant has approached the girls and said to Miss An S, 'Hi Sister' and asked her if she was 12. She has responded in the affirmative and the Applicant has then kissed her on the forehead and on the nose. The friend has then started yelling at the Applicant, saying something to the effect of 'Bro, stop that'. The Applicant has then left the park.

9. The Applicant's criminal offending and other conduct to date includes sexual crimes against women, some of whom were children and one of whom was disabled. These are properly regard by the Australian Government and the Australian Community as being very serious crimes.[79]
10. The Tribunal was provided with documentary records referencing charges that are not on the Applicant's History for Court, or which related to prison misconduct. In the absence of cross-examination and further evidence about them, the Tribunal has disregarded these records.
11. As the Chief Justice of Western Australia observed in Musgrave v State of Western Australia [2021] WASCA 67; (2021) 289 A Crim R 17, at [7],[80] '...other than in the pages of the Criminal Code, sexual offences do not exist in the abstract. They are always, and in every case, a violation by one ... human being of another human being. And the impacts of such violations have on each individual are as many and varied as the individual experiences of the victims themselves. To suggest that "all things being equal" one form of violation is inherently more serious than the other is incoherent because, when it comes to such matters, "all things are never equal".' Miss TF provided a victim impact statement to the District Court, where she indicated that the offending 'has had a significant effect on her and disrupted her life and her ability to function normally in the world.'[81] The information before the Tribunal indicates that some of the Applicant's other victims were startled, shocked and/or afraid because of the Applicant's offending. These are all likely consequences of such offending. In the absence of specific evidence, and the inability to cross-examine the Applicant on that evidence, the Tribunal takes the impact of the Applicant's offending on any of his victims no further.
12. The Applicant's offending is frequent and repeated despite being either on conditional liberty (on bail or a community-based order) or after periods of imprisonment (and forced sobriety). The Applicant would appear to pose considerable threat to young women, despite their being in public and in company. His other offending is associated with his use of alcohol.
13. The Applicant was warned in December 2016, when he was granted the refugee visa that his visa was subject to certain conditions and that if he did not comply with these conditions there may be serious consequences including visa cancellation, detention and removal from Australia.[82] He made a statutory declaration at the Australian High Commission to the effect that this had been explained to him and that he had never committed any crimes or offences in any country, including sexually based offences involving a child, and that any incorrect information in this respect may result in the refusal of his visa application or the visa's cancellation (if it had been granted).[83] He was also warned by Magistrate Maughan in the Perth Magistrates Court on 20 December 2023, and by his solicitor, that he may be at risk of deportation based on the sentences imposed by his Honour.[84] His Honour also very clearly told the Applicant that conduct of the kind he had engaged in 'is entirely inappropriate, offends against community standards and will not be tolerated'.[85] He committed the June 2024 indecent assault thereafter.
14. The factors in cls 8.1.1(1)(g) and (i) of the Direction are not relevant.
15. For the above reasons, the Tribunal finds that the nature and seriousness of the Applicant's criminal offending and other serious conduct to date to be very serious.

Risk to the Australian community should the Applicant engage in further conduct

1. The Tribunal is required to have regard to the future risk that may be posed by the Applicant to the Australian community by considering, cumulatively, the nature of the harm to individuals or to the community should the Applicant engage in further criminal or other serious conduct, and the likelihood of the Applicant engaging in such conduct.[86] There is no statutory constraint on the way that risk is assessed by the Tribunal other than that there must be a rational and probative basis for the assessment.[87]

1. The Minister identified the nature of harm to individuals, or the Australian community, should the Applicant re-offend by committing sexual offences as 'serious physical and psychological harm'.[88]
2. A range of short- and long-term psychological and emotional impacts have been associated with sexual assault, including:

(a) fear, feelings of low self-esteem, self-blame and guilt; and > > (b) trauma and post-traumatic stress disorder. [89]

3. A range of physical injuries or medical problems can be associated with sexual assault.[90] Sexual assault can impact on the way the victim interacts with those close to them and to the community, all of which has potential financial impacts.
4. For the above reasons, the Tribunal finds that the nature of the harm to individuals or to the Australian community should the Applicant re-offend is variable, ranging from relatively minimal impact to potentially devastating impact. However, all sexual assault is inherently serious because it is an affront to the privacy and dignity of the individual victim and for their autonomy and bodily integrity.[91] Such conduct has the potential to be profoundly harmful.

1. The Applicant was assessed by a clinical and forensic psychologist, Ms Jane Sampson, for the purposes of his sentencing in the Magistrates Court in 2023.[92] The Tribunal was provided with a summary of Ms Sampson's opinion (dated 3 July 2023) in the following terms:

[The Applicant's] offending is considered [to be] driven by the following factors:

• Disinhibition as a result of chronic alcohol dependence
• Sexual gratification
• Possible sexual preoccupation
• Possible deviant interest
• Mental health challenges
• Destabilisation of his life
• Substance use as a negative coping strategy
• Welfare challenges such as homelessness
• An inability to meet his sexual needs in a lawful relationship
• Poor self-awareness and impulse control
• Absence of support in his life
• Poor judgement and consequential thinking

Given all such factors remain unaddressed, Ms Sampson assessed 'Mr [Applicant]'s risk of re-offending in a similar way, would be in the well above average category due to less than two years cohabitation in a relationship, the current threat offence, previous sexual offence convictions, he has a current conviction for non-contact sexual offending and his victims are strangers and unrelated.' This report also notes 'There is evidence that Mr [Applicant] may have problems planning for the future given his homelessness, instability and self-sabotaging behaviours. His treatment responsivity is untested but is likely to be poor due to the extent of his alcohol dependence, his memory challenges and his poor English skills. He is likely to struggle with any compliance requirements and future orders.'[93]

1. The Tribunal has already summarised the psychiatric evidence before it above.
2. The Applicant was assessed for his needs and risk profile by the Department of Justice in December 2023 and using the Level of Service/Risk, Needs Responsivity tool (LS/RNR).[94] The author had a copy of the Sampson report from July 2023. The Applicant scored 35 on that actuarial tool, which is a 'very high' risk profile. His general risk/need profile scored very high for education/employment, companions, pro-criminal attitude/orientation and high for criminal history, family/marital, alcohol/drug problem and medium for antisocial pattern. It was identified that the needs which required priority intervention are substance use, mental health and victims. It was observed by the author 'when considering recidivist nature of his sexual offending which consists of predatory type behaviour with fixation elements, absence of any protective factors, array of unaddressed treatment needs, his presenting attitude and resistance towards addressing such, serious mental health concerns and poor history of compliance with both Community supervision with [Adult Community Corrections] and [WA Police Sex Offender Management Squad], High supervision recommended.'
3. The Parole Review Report dated 11 January 2024 indicates that the Applicant was not assessed for programmatic intervention due to the short length of his sentence.[95] It was recommended that the Applicant not be released on parole given he had no viable plan, was perceived to be a high risk of re-offending, had unaddressed treatment needs and was considered unlikely to comply with any conditions.[96]
4. On 5 February 2024, the Prisoners Review Board of Western Australia (PRBWA) denied the Applicant conditional release on parole. Their reasons were as follows:

The Board is satisfied that [the Applicant has] unmet treatment needs (sexual offending and substance abuse) as evidenced by the nature of [his] current offences and [his] criminal history. [He has] not had the opportunity to participate in treatment programs in custody to meet these treatment needs due to the short length of the current sentence. The Board considers that [he is] an unacceptable risk to the safety of the community if released on parole. > > [His] mixed response to prior community supervision orders and poor response to prior Court imposed Orders including breaches of Protective bail and failure to comply with [his] reporting obligations, suggesting an unwillingness to comply with directions. > > [His] release plan does not include sufficient protective strategies to reduce risk to the safety of the community and does not include any way to adequately address [his] unmet intensive treatment needs. > > [He does] not have confirmed suitable accommodation and [he] lack[s] community support. [He is encouraged] to engage with/through care service providers to prepare for [his] eventual release. > > [His] significant criminal history including previous sexual offending, which suggests a high risk of re-offending.[97]

5. The Applicant was not considered for parole in late 2024 because his sentence was backdated (and his eligibility for release on parole commenced 30 September 2024) and his max date was the end of January 2025.[98]
6. The Applicant was released from prison on 31 January 2025 and has been detained at YHIDC since.
7. On the evidence before it, the Tribunal accepts that the Applicant's alcohol use disorder is in remission in a controlled environment, and that the Applicant is experiencing a complicated withdrawal from alcohol. The Tribunal finds that the Applicant poses a well above average likelihood of re-offending in a sexual way. There has been no meaningful rehabilitation beyond forced abstinence. The Applicant has repeatedly engaged in predatory behaviour against young women (between 12 and 40) in public. Imprisonment has proved to be a poor deterrent, and this is perhaps related to the Applicant's mental health issues. The Applicant respectfully cannot be taken at his word that he will not use alcohol in the future without close supervision and support. He has not got suitable accommodation or community support. The Applicant's mental health is a 'double-edged sword' in the sense that it reduces his moral culpability for his past offences but on the other hand it very clearly indicates an increased risk that he will offend again.[99]

Conclusion on the protection of the Australian community

1. The Tribunal finds the Applicant to pose a risk to the Australian community. It has found that:

(a) further involvement in criminal or other serious conduct has potential for profound harm; and > > (b) the Applicant poses a well above average risk of re-offending in the reasonably foreseeable future.

2. The question that arises then is whether that risk is 'unacceptable'.
3. The Direction contains policy guidance, at cls 5.2, 8.1(1), 8.1.2(1), to the effect that:

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 enter and/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 (cls 5.2(1), 8.1(1)); > > The safety of the Australian community is the highest priority of the Australian Government' (cls 5.2(2), 8.1(1)). To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens (cl 8.1(1)); > > 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 (cl 5.2(3)); > > 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 (cl 5.2(4)); > > Australia has a low tolerance of any criminal or other serious conduct by ... non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time (cl 5.2(5)) > > 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 ... revoking a mandatory cancellation (cl 5.2(7)); > > The inherent nature of certain conduct ... is so serious that even strong countervailing considerations may be insufficient to justify ... revoking a mandatory cancellation... even if the information available at the time of consideration suggests that the non-citizen does not pose a [measurable] risk of causing physical harm to the Australian community (cl 5.2(8)); and > > In considering the need to protect the Australian community ... from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable (cl 8.1.2(1));

4. The Tribunal is authorised, but not bound, to give weight to the above policy guidance.[100] The Tribunal respectfully considers the policy considerations identified above to be appropriate, and to conform with the terms of the Migration Act and the nature of the power found in s 501 and its analogous provisions.
5. The Applicant arrived as an adult. Whilst it may be accepted that he came to Australia as part of our Refugee and Humanitarian Programme where it may be expected that such persons may be suffering from mental and emotional disturbances, the Applicant was granted the refugee visa on the express understanding that he did not pose a danger to the Australian community. The Applicant contravened the expectation that he be law-abiding and not cause or threaten harm to the Australian community within three years of his arrival. His first criminal offence involved returning to a shopping centre in September 2017 after being told that he was not to return.[101] This was perhaps indicative of his future problems and the escalation of his alcohol use. There is a disturbing incident report from April 2018 in the material before the Tribunal which indicates a 'suspicious approach' made to female students at a bus stop on their way to school.[102] From at least July 2019, the Applicant has embarked on a repeated course of conduct of predatory behaviour against young women in public. That has not been deterred by consequence, including repeated imprisonment and the prospect that his right to remain in this country may be cancelled. The Tribunal has found that the Applicant is at well above average likelihood of re-offending in a similar fashion in the reasonably foreseeable future. This is considerably higher than a trivial or transient risk. The seriousness of the potential harm caused by further sexual offending cannot be underestimated. It is conduct that the Australian Government does not condone and which the Tribunal is directed to protect the Australian community from. The Tribunal is conscious of the adverse effects that a conclusion of this kind might have on the Applicant and has weighed that in the balance, given the burden that such a conclusion might have on the outcome of the review based upon an assessment made about the risk of commission of future crimes. Nevertheless, the Tribunal considers that the Applicant poses an unacceptable risk to the Australian community.
6. The Tribunal finds this primary consideration to weigh determinatively against revocation.

Strength, nature and duration of ties to Australia

1. The Tribunal is required to consider any impact of the decision on the Applicant's immediate family members in Australia.[103] The Tribunal must also consider the strength, nature, and duration of any other ties that the Applicant has to the Australian community, having regard to how long he has resided in Australia,[104] and 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'.[105]
2. This is an unfortunate and rare case. The Applicant has no immediate family members in Australia. He testified that he had no other social or familial links.
3. The Applicant's immediate family remain in Myanmar and the Tribunal was told that they had encouraged him to remain in Australia, including to provide them with financial aid.
4. The Applicant has been resident in Australia for almost 9 years. He told the Tribunal that he completed the Adult Migrant English Programme upon his arrival in January 2017 and engaged in two weeks of employment at a laundromat in Bentley. By January 2019, it appears the Applicant was homeless. He has been imprisoned or detained in immigration detention for approximately 1,830 days or 56% of his time in this country.
5. The Tribunal finds this primary consideration to weigh neutrally.

1. This primary consideration is a 'kind of deeming provision',[106] which requires the Tribunal to consider the Minister's articulation of community expectations.[107] Clause 8.5(1) of the Direction provides that 'the Australian community expects non-citizens to obey Australian laws while in Australia'. The Direction goes on to state that:[108]

[w]here a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government would not allow such a non-citizen to enter or remain in Australia.

2. Clause 8.5(2) then adds to that first 'norm_'_ and indicates that non-revocation may be appropriate in a particular case 'simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa'. It specifies identified kinds of conduct, committed in Australia or elsewhere, as attracting that further expectation,[109] including 'commission of serious crimes against women, children or other vulnerable members of the community such as the ... disabled' (where 'serious crimes' is defined to include crimes of a violent or sexual nature').[110]
3. The Applicant falls foul of both stated norms, and these are identified to 'apply regardless of whether the [Applicant] poses a [measurable] risk of causing physical harm to the Australian community'.[111]
4. The Tribunal is specifically commanded to 'proceed on the basis of the Government's views as articulated' in the Direction, 'without independently assessing the community's expectations in the particular case'.[112]
5. The Tribunal adopts the approach to this primary consideration identified by Justice Horan in RCLN v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 876 at [50]- [59].
6. The Tribunal finds that this primary consideration weighs very heavily against revocation and will weigh this against the other relevant considerations.

1. The Tribunal is required to consider the legal consequences of its decision.[113] That is, the Tribunal must have regard to the statutory framework in which the power to revoke a mandatory cancellation decision exists, including the direct and immediate consequences of an exercise of the power (including any decision under s 105 of the ART Act).
2. There are three major consequences of visa refusal or cancellation under s 501 and related provisions:

(a) a prohibition, within the migration zone, on applying for other types of visas under s 501E of the Migration Act (other than a protection visa or a bridging (removal pending) visa);[114]

(b) refusal/cancellation of other visa applications/visas under s 501F of the Migration Act; and

(c) the possible application of periods of exclusion and special return criteria under s 503 of the Migration Act and SRC 5001 and 5002 in Sch 5 to the Migration Regulations. This includes permanent exclusion where SRC 5001 applies unless the Minister acts personally to grant a permanent visa to the person under s 195A.

1. These adverse consequences can each be avoided by a positive decision to revoke the cancellation decision, but it should not be assumed that Parliament has evinced any preference as to the outcome of the review.[115]
2. When the Applicant's refugee visa was cancelled, he became an 'unlawful non-citizen'.[116] That is, a non-citizen in the migration zone who did not hold a visa that is in effect.[117] This status conferred liability to be detained under s 189(1) of the Migration Act and this occurred in January 2025.
3. The Applicant is relevantly required to be detained until he is either removed from Australia under s 198 or he is granted a visa (including having his visa restored to him under s 501CA(4)).[118]
4. Sections 198(1) and (2B) of the Migration Act provide for removal either at written request or where there has been a mandatory cancellation and a subsequent decision made not to revoke that cancellation, respectively.
5. The duty to remove an unlawful non-citizen arises irrespective of whether there has been an assessment, according to law, of Australia's non-refoulement obligations in respect of the non-citizen.[119] However, s 198 of the Migration Act does not require or authorise a non-citizen's removal to a country if, during the course of a protection visa application, there has been a 'protection finding' made for the person with respect to that country.[120]
6. The Applicant's circumstances do raise claims which may give rise to Australia's non-refoulement obligations.[121] First, his refugee visa included a finding made that he 'is subject to a degree of persecution in Myanmar'.[122] Second, on 19 March 2025, the Applicant lodged an application for a protection visa.[123] That visa application was supported by a five-page statement dated 17 March 2025, advancing a claim to fear serious harm on the basis of his Chin ethnicity, Christian religion, political opinion and 'failed attempt to seek asylum in Australia'.[124] However, on 12 May 2025, the Applicant withdrew that visa application under s 49(1) of the Migration Act.[125]
7. On 11 July 2025, the Applicant provided an undated letter to the Minister's Department indicating that he wished to 'revoke' the withdrawal and requesting his release from detention, whether on a visa or as part of a residence determination.[126]
8. The Tribunal was told that the Minister's Department did not allow the Applicant to revoke his withdrawal of the visa application (but the Applicant had made a request for ministerial intervention under s 195A of the Migration Act, which was still 'pending' and no procedural decision had been made about whether the Minister wished to consider intervention), and that, in accordance with s 49(3) of the Migration Act, the Applicant was not prevented from making a fresh application for a protection visa. This was explained to the Applicant during the hearing.
9. The criteria for a protection visa are found within s 36 of the Migration Act and Sch 2 to the Migration Regulations. In considering whether to grant or refuse a protection visa, the Minister must first give consideration to Australia's protection obligations and make a finding whether the applicant satisfies either s 36(2)(a) or s 36(2)(aa) of the Act with respect to a country.[127]
10. The Tribunal notes the contents of the DFAT Report for Myanmar at paragraphs [2.5]-[2.6], [2.9]-[2.22], [2.34]-[2.35], [2.42]-[2.43], [2.51]-[2.52], [2.55]-[2.61], [3.1]-[3.14], [3.34]-[3.43], [3.55]-[3.90] and [5.20]-[5.28].
11. The Minister's counsel quite properly accepted, on the material before the Tribunal, that it was 'on the cards' that the Applicant may satisfy the criterion in s 36(2)(a) of the Migration Act with respect to Myanmar but not the criterion in s 36(1C). The Tribunal notes that the Applicant's criminal history does include 'particularly serious crimes' (being 'serious Australian offences' as defined in ss 5(1) and 5M of the Migration Act; that is, offences involving violence against a person and which are punishable by imprisonment for a maximum term of not less than three years' imprisonment).
12. The Minister urged the Tribunal to defer consideration of Australia's non-refoulement obligations in the Applicant's circumstances, noting cl 9.1.2(2) of the Direction and the High Court's decision in Plaintiff M1/2021 at [28]-[30].[128]
13. The Tribunal repeats its observations in Re DMFR and Minister for Immigration, Citizenship and Multicultural Affairs [2024] ARTA 28 at [105]-[106]. Those observations apply with specific force to this matter having regard to the Applicant's personal circumstances, the existence of several inconsistencies about his life story on the limited material before the Tribunal and the restrictive time constraints associated with this review.
14. The Tribunal accepts that there is a potential for Australia's non-refoulement obligations to be engaged in relation to the Applicant and in respect of Myanmar. This potential increases the likely length of the Applicant's potential immigration detention (within constitutional limits). Whether the Applicant could be removed to another country in the reasonably foreseeable future would be a matter for assessment by the Minister's Department at the time in which his detention is for that purpose. Noting the constitutional limits on immigration detention,[129] the Minister may separately need to consider granting the Applicant another visa, whether with or without conditions (including inviting him to apply for a Class WR Subclass 070 Bridging (Removal Pending) (temporary) visa) or by making a residence determination under s 197AB of the Migration Act.
15. The Minister submitted that the legal and other consequences of affirming the reviewable decision (and deferring consideration of Australia's non-refoulement obligations), including the potential for further detention until the Applicant is either granted a visa or removed, were the intended consequences of the statutory scheme and that the weight to be given to these consequences was subsumed into the Tribunal's evaluation of the other relevant considerations.[130]
16. The Tribunal disagrees. As Chief Justice Allsop remarked in Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628,[131] cases under s 501 of the Migration Act have human consequences, which require honest confrontation of what is being done to people. The Applicant is understandably anxious to secure his release from immigration detention. A decision to affirm the reviewable decision in this matter is likely to increase the period of his administrative detention, and there is a potential for any future release to be made subject to stringent conditions.[132] In the Tribunal's humble opinion, the prospect of that further detention, the imposition of stringent conditions (and consequent penalties for non-compliance with them) and for subsequent removal and permanent exclusion from this country ought to be given some weight against that outcome in the ultimate balancing exercise, particularly in circumstances where Australia's international obligations may be engaged by the Applicant's circumstances.
17. The legal and other consequences of the Tribunal's decision weigh in favour of revocation.

1. The Tribunal must consider the extent of any impediments that the Applicant may face if removed from Australia to Myanmar, in establishing himself, and in maintaining basic living standards (in the context of what is generally available to other citizens in that country), taking into account the Applicant's age and health, whether there are substantial language or cultural barriers, and any social, medical, and/or economic support available to him in Myanmar.[133]
2. The Applicant is 45 years of age. He has the following health conditions:

(a) hypertension (high blood pressure), for which he is medicated;[134] > > (b) mild hepatic steatosis (build-up of fat in the liver) caused by his use of alcohol;[135] > > (c) dental issues (missing teeth, severe attrition, erosion, teeth grinding, generalised periodontitis and dental pain), for which he has been treated by dentists and allied health practitioners;[136] > > (d) major mental health issues of psychotic disorder with two differential diagnoses of schizophrenia or chronic alcoholic hallucinosis, alcohol use disorder with complicated withdrawal and potential anxiety disorder; and > > (e) evidence of a neurocognitive disorder, which is presumably secondary to his severe alcohol use disorder but might be congenital.

3. It may be accepted that there are not substantial language or cultural barriers to any return to Myanmar and the Applicant told the Tribunal that he speaks with his family in Myanmar on average three times per week.
4. The DFAT Report makes plain that there is limited to no social, medical or economic support available in Myanmar. The Tribunal doubts in this hypothetical situation that the Applicant could, in fact, safely travel from one of the three international airports to his home area (though there are issues as to whether that is, in fact, Chin State or the Sagaing Region).
5. The Tribunal asked the Applicant why he changed his mind about his May 2025 request to be voluntarily repatriated to Myanmar. He said that when he told his mother about the request to return to Myanmar she cried and told him that if he loves her and his sister, he should stay in Australia because otherwise life in Myanmar would be 'very difficult' and he would be 'very poor, same as [them]'. He said that a fellow detainee authored his subsequent letter requesting that he be permitted to remain in Australia and be released from detention.
6. The Tribunal finds that there are very real and significant impediments to the Applicant re-establishing himself and maintaining basic livings standards in Myanmar.
7. The Tribunal found the Minister's submissions on this issue, which were based on instructions provided by the Department to the effect that there were only 'some impediments', to strain credulity.[137]
8. This other consideration weighs heavily in favour of revocation.

1. The Tribunal is required to bring together the relevant considerations in this matter and consider, as part of a single evaluation, their relative significance in terms of whether the Tribunal is ultimately satisfied that there is 'another reason' why the mandatory cancellation decision should be revoked.[138]
2. Clause 7(2) of the Direction states that the primary consideration in cl 8.1 (protection of the Australian community) is 'generally to be given greater weight than other primary considerations', and that, otherwise, the relevant 'primary considerations should generally be given greater weight than the [relevant] other considerations.' This guidance is consistent with the principle articulated at cl 5.2(2), that 'the safety of the Australian community is the highest priority of the Australian government'.
3. The above policy guidance does not mean that the other relevant considerations are secondary to the primary considerations, or that the first primary consideration should always be given greater weight than any other relevant consideration (including the other primary considerations).[139]
4. The Tribunal considers that there is not good reason to depart from the above policy in this case.[140] The Tribunal has found that the Applicant has engaged in very serious criminal conduct to date, including acts of sexual violence, and that he poses an unacceptable risk to the Australian community of engaging in further criminal or other serious conduct, particularly further acts of sexual violence. That risk is well above average. The Australian Government is committed to not conferring the privilege of remaining in this country on the perpetrators of sexual violence. The nature of the Applicant's criminal conduct is conduct which the Australian community would properly expect would cause the Australian Government to determine that the Applicant not continue to hold a visa. In the Tribunal's view, the first and fifth primary considerations, when taken together, comprehensively outweigh all the other relevant considerations. Whilst the factors in the Applicant's favour, particularly the impediments in Myanmar, carried some force, they did not dispel the ultimate conclusion drawn from all of the circumstances that the Applicant should not be permitted to remain in this country.
5. In summary, the Tribunal, after considering each of the relevant considerations identified within the Direction, is not satisfied that there is 'another reason' to revoke that cancellation decision. The correct decision is therefore to affirm the reviewable decision.

I certify that the preceding 146 (one hundred and forty-six) paragraphs are a true copy of the reasons for the decision herein of General Member J Papalia

...................[SGD].....................................................

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