Adams and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 831

Adams and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 831 (21 April 2022)
AppID:  Adams and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
MatterType:   Migration
Division:GENERAL DIVISION
File Number(s):      2022/0676
Re:Hawera Adams
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:21 April 2022
Place:Sydney

The decision under review is affirmed.
...................................[sgd].....................................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction 90 – protection of the Australian community – family violence – best interests of minor children – expectations of the Australian community – non-refoulement obligations claimed – impediments to removal – impact on victims – strength, nature and duration of ties to Australia – decision affirmed
LEGISLATION
Domestic and Family Violence Protection Act 2012 (Qld)
Migration Act 1958 (Cth) ss 499, 501 and 501CA
CASES
AFY18 v Minister for Home Affairs [2018] FCA 1566
Ali and Minister for Home Affairs [2018] AATA 2512
CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
CZCV and Minister for Home Affairs (Migration) [2019] AATA 91
Do and Minister for Immigration and Border Protection [2016] AATA 390
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
MAH v Minister for Immigration and Border Protection [2018] AATA 416
Mendoza and Minister for Immigration and Border Protection [2018] AATA 686
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Home Affairs v Sharma [2019] FCA 597
Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575
R v JT [2007] NSWDC 377
R v Saunders [2017] SASCFC 86
R v Wood [1994] QCA 297
RGKY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 750
Savaiinaea v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 56
Secretary to the Department of Justice and Regulation v LLF (a pseudonym) [2018] VSCA 155
Shi v Migration Agents Registration Authority [2008] HCA 31
Slynt and Slynt [2017] FamCA 812
Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Chris Puplick AM, Senior Member
21 April 2022
THE APPLICATION

Mr Hawera Adams (the Applicant) is a citizen of New Zealand/Aotearoa who is 28 years of age. He identifies as a person of Maori ethnicity. He first arrived in Australia in January 2011 holding a Special Category (Subclass 444) visa which is available to citizens of New Zealand. That visa was last renewed on 15 April 2019.
On 16 July 2021 the Applicant was convicted of an offence (see below) which resulted in him receiving a custodial sentence of 2 years and 6 months, to be released on parole after serving 10 months imprisonment.
This conviction led to the Minister (the Respondent) determining that the Applicant had a “substantial criminal record” under the provisions of the Migration Act 1958 (Cth) (the Act).[1] A “substantial criminal record” is defined in the Act as any term of imprisonment for 12 months or more.
[1] Migration Act 1958 (Cth) (Act) ss 501(6)(a) and 501(7)(c).
This in turn led to the mandatory cancellation of his visa, which he was notified of on 2 August 2021.[2]
[2] Act s 501(3A).
As provided for under the Act, the Applicant made “representations” on the same day (2 August 2021) for the revocation of the cancellation decision. On 28 January 2022 a delegate of the Minister decided not to revoke the cancellation.[3]
[3] Act s 501CA(4).
On 28 January 2022 the Applicant then appealed to this Tribunal for a review of that decision and the matter was heard on 7 April 2022. The hearing was conducted using the Microsoft Teams platform in accordance with the Tribunal’s COVID-19 protocols with the Applicant, who was self-represented, appearing from the Christmas Island Detention Centre.
THE BASIS OF THE REVIEW
In proceedings such as this the Tribunal is required to address two questions, namely:
(a)does the Applicant have a “substantial criminal record” and thereby fail the “character test” set out in the Act;[4] and
(b)if he does, is there “another reason” why the cancellation decision should be revoked?[5]
[4] Act ss 501CA(4)(b)(i) and 501(6).
[5] Act s 501CA(4)(b)(ii).
In determining whether or not “another reason” exists, the Tribunal is bound[6] to have regard to the provisions of Ministerial Direction 90 (MD90)[7] as explained below.
[6] Act ss 499(1) and 499(2A).
[7] Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.
The answer to the first question is uncontested. The Applicant has been sentenced to a term of imprisonment of more than 12 months and so, by definition, he fails the “character test”.
Thus, the remaining task of the Tribunal, standing as it does in the shoes of the original decision-maker,[8] is to consider the evidence before it, including any evidence which may not have been before the original decision-maker,[9] and any representations made by the Applicant, to answer the second question.
[8] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9].
[9] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37].
THE APPLICANT’S PERSONAL NARRATIVE
The Applicant arrived in Australia in 2011[10] aged 17 years.[11] He claims that his family life in New Zealand was dysfunctional and that he was “exposed to a lot of domestic violence during my childhood and was moved around a lot between family members.”[12] He says that “[d]omestic violence was normal for me to see.”[13]
[10] In the Applicant’s Statement dated 8 March 2022 (Applicant’s Statement), the Applicant claims he arrived in 2010 however his movement record shows he arrived in January 2011, G-documents at 72.
[11] The Applicant in his statement claims he was 16 when he arrived, although records would suggest he was 17.
[12] Applicant’s Statement.
[13] Ibid.
On arrival he lived originally in Sydney where he attended school but later moved to Brisbane. There he found support from a couple whom he met via his work and who he regards as his “Australian parents”. This couple (Desi and Emanuel Paraskevas)[14] have given him support and assistance throughout his life in Australia and he spent some time working with his “step-father” as he describes him. He claims a close relationship with each of this couple’s minor daughters.
[14] G-documents at 56.
A few years after arriving in Brisbane, the Applicant met his partner (RS) and they were together for a period of some 11 years until the birth of his son (AZ).
However, this relationship was not without its challenges and the Applicant came to believe that his partner was having an affair with one of his brothers. His evidence to the Tribunal was to the effect that his partner denied this at the time, but his brother subsequently “confessed” to him. The degree of the Applicant’s suspicion was sufficient that, following the birth of his son in early 2020 he arranged for a DNA test to be conducted which confirmed his paternity.
The Applicant has made numerous statements to the effect that the birth of his son made him “[t]he happiest I have ever felt in my life” and that there is nothing more important to him than this relationship which he wishes to resume and develop if released back into the community. He states, “[e]very day I went to work I knew I was working for my son. He is the most important person in my life”.
On 24 October 2020 the Applicant assaulted his partner (see below) with the result that he was charged with domestic violence offences and was subsequently sentenced to a term of imprisonment of 2 years and 6 months. His non-parole period concluded on 24 August 2021[15] and upon release he was taken into immigration detention, first in Brisbane and eventually (from November 2021) at the Christmas Island detention centre.
[15] G-documents at 32.
In his Personal Circumstances form the Applicant was asked to list the members of his immediate family. He provided only the names of his “step parents” and it was only under questioning by the Tribunal that he revealed that he had 6 brothers and 3 sisters all of whom reside in New Zealand. He provided the names of his “in-laws”, two aunts, an uncle and two cousins residing in Australia and then stated in the form that he had “1,000” uncles and aunts and “2,000” nieces and nephews and a further “2,000” cousins.[16]
[16] G-documents at 56.
When questioned, the Applicant refined this to a claim of some 50-100 relatives who might be included in these various categories of whom perhaps 10 lived in Australia. He was unsure of any of these details.
In effect, the Applicant has no real idea about details of his family, although nearly all of them reside in New Zealand and he has made no claims whatsoever substantiating the presence in his life of any “minor” children other than his son. Apparently, both of his biological parents are still alive.
The Applicant has spent no more than six months in any degree of close proximity with his son; that is between the date of his birth and the date of his incarceration. At present he has no idea where his son resides, other than that he is with his mother, with whom the Applicant has had no contact since his incarceration.
In his Statement the Applicant indicated that, in the event he should be returned to the community he would “plan to reside in Brisbane with my friend”. He would also intend to return to his employment at GJ Glass and Aluminium Brisbane, and “access support from Brisbane Domestic Violence Service… to develop strategies to positively manage my mental health.”[17]
[17] Applicant’s Statement.
The entire purpose of this would be for him to rebuild his relationship with his son and to provide support to him, although he has no intention of re-engaging with his former partner.
The Tribunal notes that the Applicant has a history of steady employment in Australia. He has worked at various times as a labourer, in an abattoir, as a glazer, a licensed fork-lift driver and for companies such as Arnott’s Biscuits, Holman Industries and GJ Glass and Aluminium.
THE APPLICANT’S OFFENDING HISTORY
The Applicant has been before the Courts on a number of occasions for what might be described as “minor offences”. These include a number of instances of riding public transport without a valid ticket, causing damage to a phone booth and obstructing (and verbally abusing) a police officer in the conduct of their duties. Over the period from September 2013 to May 2017 the Applicant appeared in court 6 times on such charges. Convictions were recorded on two occasions (four not recorded) and in each instance he was subject to a fine.[18]
[18] G-documents at 29-30.
On 24 October 2020 the Applicant assaulted his partner and, as a result was charged with “choking suffocation strangulation domestic relationship – domestic violence offence”, “assaults occasioning actual bodily harm – domestic violence offence” (two counts) and “contravention of domestic violence order”. He received separate sentences of 18 months, 2 years and 6 months and 6 months to be served concurrently.[19]
[19] Ibid at 32.
Antecedent to this event, on 15 September 2020 a Protection Order (valid to 15 September 2025) was made against the Applicant enjoining him from conducting any acts of domestic violence against his partner and exposing his child to domestic violence.[20] The Applicant was aware of this Order as he was present in Court when it was issued.
[20] Respondent’s Tender Bundle at 14. In Queensland such orders are made under the Domestic and Family Violence Protection Act 2012 (Qld) and are the equivalent of Domestic or Apprehended Violence Orders in other jurisdictions.
The Respondent in its Statement of Facts, Issues and Contentions (SFIC) (at [22]) sets out the facts as contained in the statement of facts put before the Court:[21]
“22.1 After an argument, the applicant struck the victim to the side of the head. He then grabbed her around the side of her neck and threw her head into the kitchen bench. He then grabbed her around the shoulders and dragged in her into the bedroom.
22.2 The applicant then pushed the victim onto the bed face first. He then pushed his hand into her throat with an upward motion, looked into her eyes and said “shut up, stop crying, just shut up”. The applicant then placed a pillow over the victim’s face for 1-2 minutes which caused her to have trouble breathing.
22.3 The victim then left the room and called outside for help. The applicant pushed her from behind and she fell on the grass.”
[21] Ibid at 4-6.
In his oral testimony to the Tribunal the Applicant gave a differing version of these events.
In his version, an argument erupted over the Applicant taking his partner’s mobile phone to assist him using an app on his own phone and then refused to return the phone. This event took place in the garden/yard and then moved into the kitchen where the partner was preparing a bottle for the baby then in her arms. She went into the living room where she deposited the baby and then returned to the kitchen where the argument continued. Somehow events moved to the bedroom where the Applicant says his partner scratched his face in attempting to get her phone back. He pushed her, she fell and hit her head on a rocking chair and he pushed her onto the bed where he held a pillow over her face. She escaped from this situation and pushed past him into the hallway and proceeded into the garden/yard where she started to scream and call on neighbours for help. He picked up the baby and followed her into the garden/yard where she fell over. He returned to the house and when the Police arrived he was holding the baby in his arms, at which point he was arrested.
Police evidence established that the partner had extensive bruising and discolouration around her throat/neck; that the Applicant had scratch marks on his face and that he was holding the baby “in a highly emotional state, crying” when the Police arrived.[22]
[22] Ibid at 14, 18 and 23.
It is, of course, well established that the Tribunal should not “go behind” the findings of a court where a sentence has been imposed,[23] although it may inform itself of the “underlying circumstances” of a conviction.[24]
[23] Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649; Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575.
[24] MAH v Minister for Immigration and Border Protection [2018] AATA 416 at [24]. Also Secretary to the Department of Justice and Regulation v LLF (a pseudonym) [2018] VSCA 155 at [42]; Minister for Home Affairs v Sharma [2019] FCA 597 at [24]-[26].
The Tribunal notes that the Sentencing Judge stated:
HER HONOUR: Stand up, Mr Adams. Mr Adams, you’ve pleaded guilty to two charges of assault, one of suffocating in a domestic setting and contravene a domestic violence order. The incident was quite violent and really unnecessary because the complainant really didn’t do much to set you off at all. You already has a domestic violence order against you – protection order, sorry – so you should’ve been on your best behaviour.
Having said that, the letter of apology that you’ve written does indicate that you accept that you have some problems with your temper and that needs to be addressed and that you are extremely remorseful and regretful that your actions have led to the collapse of what was quite a long-term relationship and, of course, it means that your time with your child will be significantly diminished, and it does indicate that you have significant insight into your behaviour and remorse for what you’ve done and that you have had time to reflect on that whilst you’ve been in custody.
Her Honour went on to remark:
Suffocating, domestic violence, we see the results of that in the paper all the time. Many women are subject to domestic violence in our community and many women are killed as a result of their partner’s domestic violence.[25]
[25] G-documents at 32.
Regardless of the nuances of the Applicant’s version of events, there is no gainsaying the fact that the Applicant violently assaulted his partner and attempted to both strangle and suffocate her; that she sustained physical injuries as a result of his assault and that the baby (then aged 8 months) was at various times in the arms of each of his parents throughout this process of altercation.
OTHER EVIDENCE
In support of his application the Applicant did not supply any testimonials, letters of reference or support or any other documentation. At the hearing he produced a copy of a certificate to indicate that he had completed an anger management course while in immigration detention, although the details of the course were not clear. There were no witnesses called in the proceedings.
DISCUSSION
The Tribunal has to make a simple determination – is the cancelation of the Applicant’s visa the “correct or preferrable”[26] decision to be made on the basis of the evidence before the Tribunal?
[26] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642.
Importantly, the Minister has the power to make Directions (under subsection 499(1) of the Act) which are binding on decision-makers (subsection 499(2A)) including this Tribunal. These Directions specify the matters which the decision-maker must consider and assess in coming to their determination. The prescribed considerations are not however exhaustive and, provided the Tribunal has considered all of them, it is open to the Tribunal to take into account other matters provided they are relevant to the individual circumstances of the application under review.
On 8 March 2021 a new direction, MD90 came into effect.
MINISTERIAL DIRECTION 90
The Direction commences with a Preamble which applies to all parts of the Direction and establishes a number of guiding principles which provide a framework within which decision-makers should approach the task of deciding whether to affirm or set aside a decision made under subsection 501(2) of the Act.
In particular, the Direction provides inter alia that:
·being able to come to or to remain in Australia is a privilege conferred 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;
·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;
·there is an expectation that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct that raises serious character concerns, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community; and
·Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for a short period of time.

Sub-paragraph 8.1(2) of Part 2 of the Direction starts with a general instruction for a decision-maker to consider the “nature and seriousness of the conduct”.
In terms of the “nature and seriousness of the conduct” the decision-maker is obliged to consider the extent to which the conduct involves crimes of a violent or sexual nature, crimes against women and children and acts of family violence. The decision-maker must also (inter alia) consider the frequency of the offending behaviour and whether it displays and trend of increasing seriousness, the cumulative effect of repeated offending and whether an individual has received prior warning about the consequences of further offending.
The Direction then elucidates four primary considerations which should generally be given greater weight than the other considerations:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
It is worth noting that the issue of “family violence” was introduced into MD90 as a major addition from the set of criteria which existed under its predecessor Ministerial Direction 79. This reflects a clear statement of government/public policy that crimes of family/domestic violence and violence against women or vulnerable people are to be regarded as matters of exceptional seriousness.
Section 9 of Part 2 of the Direction provides that other considerations must be taken into account where relevant, which include (but are not limited to):
·international non-refoulement obligations;
·extent of impediments if removed;
·impact on victims; and
·links to the Australian community, including:
ostrength, nature and duration of ties to Australia; and
oimpact on Australian business interests.
The Tribunal is required to consider each of the items. However, it should be noted that there is ample High Court authority for the principle that it is up to the Tribunal itself to assess the weight which should be given to each of the respective criteria. Explicitly, the Court stated in SZJSS that: “[t]he weighing of various pieces of evidence is a matter for the Tribunal.”[27]
[27] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.
Once weight is assessed for each criterion, where there are competing assessments, and a balance to be arrived at, it becomes a matter of the Tribunal engaging in a process of “calculus” [28] to arrive at a final determination.
PRIMARY CONSIDERATIONS
[28] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
Protection of the Australian community and Family violence
The Tribunal must consider both Primary Consideration 1 (Protection of the Australian community) and Primary Consideration 2 (Family violence) separately in coming to a conclusion about what weight to give them in accordance with the various criteria set out in MD90. However, for the purposes of discussion, because the two issues are inexorably intertwined in this application they will be discussed together although evaluated separately.
The Tribunal must give consideration to:
(a)the nature and seriousness of the non-citizen's conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
There can be no realistic assessment of the Applicant’s offending other than to conclude, in terms of the domestic violence offence that it was serious and had a heightened level of impact on the victim. The fact that the altercation took place over several rooms in the house, in each of which there were acts of physical violence and that an attempt was made to strangle and then suffocate the victim cannot be seen as anything but the higher end of offending – as reflected in the Court’s sentence.
The question of whether any applicant will offend again is always open-ended. No guarantees one way or another can ever be given. It is clear than the Applicant has an anger management problem, evidenced not only by the domestic violence offence but by a study of the background details of his “minor” offences which caused him to confront and abuse Police and damage public property.[29]
[29] Respondent’s Tender Bundle at 53.
In many cases before the Tribunal assistance is provided by way of reports from health professionals, assessments from custodial authorities or letters of support from friends and family. There is no such evidence before the Tribunal other than a certificate of a completed course in anger management undertaken by the Applicant while in immigration detention.
Indeed, the only relevant document before the Tribunal is a copy of the Victim Impact Statement in which RS reports that, as a result of the assault, she suffers from insomnia, nightmares, anxiety, a lack of trust and self-confidence and resultant financial stress. She reports a “constant fear for when the perpetrator will be released”, together with a loss of social skills and employment opportunities. She writes of her concern and having to “struggle with making decisions about my future and my son’s future as I am always scared to find out what is going to happen to us when the time [of the Applicant’s release] comes.”[30]
[30] Ibid at 7.
The Applicant has ignored previous warnings about his behaviour in terms of breaches of the Protection Order of September 2020. Such Orders are not trivial things to be ignored or set at naught by perpetrators.
The Tribunal draws attention to the statement of the Court in R v Saunders[31] in relation to intervention orders that:
The purpose of those instruments is to prevent acts of domestic violence which are often emotional and psychological as much as physical. Everyone is entitled to feel safe and secure, especially in their own residence. The violation of that sense of safety and security can have profound consequences for the victim. The community expects the law to protect the vulnerable from the oppressor. This has led the courts to treat crimes involving domestic violence as grave crimes. Parliament has enacted laws designed to provide protection to those subjected to domestic violence. The making of intervention orders is intended to provide this protection.
[31] [2017] SASCFC 86 at [37].
It also notes the comments of the Court of Appeal of Queensland regarding the importance and significance of domestic violence orders to the effect that:
Domestic violence orders imposing restraints of the kind involved here are practically speaking the only available means of curbing in advance conduct in the domestic context that is violent or likely to lead to violence. Unless breaches of such orders are, and are well known to be, visited with appropriate severity, they will quickly lose their value in the minds of both those who obtain them and of those who are subject to them.[32]
[32] R v Wood [1994] QCA 297.
On the other hand, the Tribunal notes that the Sentencing Judge did refer to the Applicant’s “significant insight into your behaviour and remorse for what you’ve done”[33] and that the Applicant in both his written statement and oral testimony said that “I take full responsibility and accountability for my actions.”[34]
[33] G-documents at 32.
[34] Applicant’s Statement.
In a written submission to the Sentencing Judge the Applicant recognised his behaviour as “unacceptable” and claimed that he “[did] not recognise the man that was behaving in such an unacceptable manner”.[35] However while this submission focusses on the Applicant’s sense of remorse and the impact his behaviour had had on him, “I keep getting horror flashbacks of when my life got turn[ed] upside down, and it makes me sick to my core and I have real trouble sleeping many nights due to the images I have going through my mind” it displays no recognition or understanding of the impact of his actions on his victim.
[35] Respondent’s Tender Bundle at 9-10.
Nevertheless, the Tribunal is not persuaded that the Applicant does not pose a continuing risk to the community in terms of having a low to moderate level of potential re-offending. It does not appear that he understands fully that his repeated acts of anti-social outbursts of anger constitute a danger to others and potential harm to innocent third parties.
Assessment of this criterion must count against the Applicant and it does so to a moderate degree.
Family violence
The Tribunal has discussed above the details of the Applicant’s offending and the circumstances of those offences. This is the primary consideration upon which the Respondent places greatest weight (along with protection and expectation criteria) against the Applicant, and understandably so.
The Tribunal is given guidance by MD90 as to the factors which it should consider in assessing risk in relation to this matter. The Direction states (at sub-paragraph 8.2(3)):
(3) In considering the seriousness of the family violence engaged in by the non citizen, the following factors must be considered where relevant:
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.
In her sentencing remarks, the presiding Judge made reference to the extent of domestic violence and that a number of women are killed each year in such incidents. In its SFIC the Respondent elaborates on this point, noting (at [30], citations omitted) that:
As reported in the Fourth Action Plan – National Plan to Reduce Violence against Women and their Children 2010-2022, every day there are on average 12 women in Australia who are hospitalised due to domestic violence and every nine days a woman is killed by their current or former partner. Violence against women and their children resulted in an overall economic cost of $26 billion in 2015-16, with victims bearing approximately 50 per cent of that cost.
The Tribunal’s condemnation of all forms of domestic/family violence is a matter of record[36] and in Mendoza I said:
The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.[37]
[36] Ali and Minister for Home Affairs [2018] AATA 2512 at [113]; R v JT [2007] NSWDC 377 at [1]; and Slynt and Slynt [2017] FamCA 812 at [1].
[37] Mendoza and Minister for Immigration and Border Protection [2018] AATA 686 at [48].
Given all the circumstances of the Applicant’s offence and the sentence imposed on him the Tribunal must assess this criterion as counting heavily against the Applicant.
Best interests of minor children
MD90 (at sub-paragraph 8.3(4)) sets out the issues to be considered by decision-makers in this regard. They include matters such as the nature and duration of the Applicant’s relationship with the children, the nature of their parental role, the possible effects of separation on the children, the views of the children (to the extent they are known and taking into account the level of maturity or understanding of the child) and whether or not the children have been exposed to or suffered from physical abuse by the Applicant.
The Applicant has a minor son now aged just over two years. The Applicant had extensive contact with him from the time of his birth (early 2020) until the Applicant was incarcerated (October 2020) but since that time has had no contact.
Moreover, the mother of the child has custody and it is clear from her Victim Impact Statement that she harbours fears about the return of the Applicant into their lives.
On 2 March 2021 the original Protection Order (15 September 2020) was varied by the Court to include the following conditions:[38]
(3) The respondent is prohibited from remaining at, entering or attempting to enter, approaching to within 100 metres of the premises where the aggrieved and named child lives.
(4) The respondent is prohibited from locating, attempting to locate or asking someone else to locate the aggrieved and named child.
(5) The respondent is prohibited from contacting or attempting to contact or asking someone else other than a lawyer to contact the aggrieved and named child except when appearing personally before a court or tribunal; except when attending an agreed conference, counselling or mediation session or except when having contact with a child or children as set out in writing between the parties or in compliance with an order of a court.
[38] Respondent’s Tender Bundle at 8.
The revised order is in place until 2 March 2026 and the Applicant was present in court via video link when it was made.
There is therefore no basis for the Tribunal to believe that the Applicant will have any reasonable opportunity to participate in the life of his child for several years to come, and indeed his participation to date has been limited. Nor is there any reason to believe that the child in question would have clear memories of this early contact or whether such memories might actually be negative and recall circumstances of family violence.
The Applicant’s Personal Circumstances form admits that the child lives with his mother and in response to the question: “[w]ill you live with the child on return to the community?”, the Applicant writes, “[n]o, but I want to see my son again”.[39] In this form, he also declares quite unambiguously in relation to his former partner, “[w]e have no future plans together”.[40] Presumably this means no plans involving both of them being simultaneously involved with their child, and on the evidence, it is hard to see his former partner actively seeking or supporting his re-engagement with their child.
[39] G-documents at 52.
[40] Ibid at 51.
There is no doubt that the Applicant misses his son and regards him as the most important element in his life. He wishes to be reunited with his son and to play a positive role in his life, but there is no suggestion that this is in fact a practical option given the relevant circumstances.
As Rares J noted in RGKY “[o]rdinarily, the best interests of a child are to have two loving parents who wish to care for and look after the child in the family home”[41] and as Allsop CJ exhorted decision-makers to have due regard for the fact that refusal to revoke a visa cancellation can have devastating effects on members of the family (children included),[42] the Tribunal is aware that to make a positive finding that it is not in the best interests of a minor child to be deprived of the attention and care of a parent, is a major decision.
[41] RGKY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 750 at [59].
[42] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].
In this instance however, the Tribunal finds that while it might, as a matter of hope rather than expectation, be in the best interests of this minor child that his father’s visa cancellation is revoked, in terms of assessing this against the specific criterion of MD90 the Tribunal assigns it only limited weight.
The Applicant has referred to numerous (unspecified) nephews and nieces who may or may not be resident in Australia and may or may not be minors.
The High Court in Uelese made it clear that a decision-maker (under MD90) must consider the best interests of all minor children “of which it was aware” even where they “were not themselves represented in the proceedings before the Tribunal.”[43]
[43] Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at [64].
However, as O’Bryan J (Katzmann J agreeing) pointed out in Tohi: [44]
Nevertheless, the Tribunal is required to assess the best interests of the child based on the evidence and submissions before it and is not under a general duty to inquire about matters not raised.
[44] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 at [181]. Citations omitted.
Justice O’Bryan cited SZIAI[45] as an authority for that proposition. In that case the plurality explained (in summary) that:
It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction.
However, this will not be the case if, for example, there is nothing on the record to indicate that any further inquiry by the Tribunal could have yielded a useful result.[46]
[45] Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [25]-[26].
[46] Savaiinaea v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 56 at [67].
While the Tribunal acknowledges the existence of an unspecified (and unnamed) number of individuals who may possibly constitute “minor children” for the purposes of this consideration, and minor children of the Applicant’s “Australian parents”, there is nothing before the Tribunal, either in the documentation or in any of the direct evidence from the Applicant, which would allow assessment of any interests of any minor children[47] other than the Applicant’s son.
[47] Ibid.
The criterion in question under MD90 counts in favour of the Applicant to a very limited extent.
Expectations of the Australian community
Sub-paragraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Sub-paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
That norm referred to in the Direction is to be understood as providing that:
·the Australian community expects non-citizens to obey Australian laws while in Australia;
·where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk they may do so, the Australian community expects the Australian Government to not allow such a non-citizen to enter or remain in Australia; and
·non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person not continue to hold a visa.

The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community taken as a whole, and in this respect, decision-makers are required to proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion which is ultimately determinative.[48] That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in MD90 at paragraph 8.4. Although these principles are discussed in relation to the former MD79, those principles are relevantly analogous in principle with respect to MD90.
[48] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J.
It has further been held that the consideration is “[i]n substance … adverse to any applicant” in virtually all circumstances and was indeed, designed to be so.[49]
[49] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] per Mortimer J.
There is nothing before the Tribunal which would allow it to do anything other than to accept that this criterion weighs against the revocation of the cancellation decision. However, as noted, the weight to be given to this (or any other consideration) is a matter for the Tribunal itself to determine.
In this instance the Tribunal assigns this a moderate degree of weight as reflective of the Australian community’s abhorrence of acts of domestic/family violence.
“OTHER” CONSIDERATIONS
Having considered what the Direction designates as “primary” considerations, the Tribunal must turn to those designated as “other”. As Colvin J has made clear in Suleiman that:
[t]o treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.[50]
[50] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28]. Ministerial Direction 65 was a precursor of MD90 and was operative from 23 December 2014 to 28 February 2019.
His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant.[51]
[51] Ibid at [26].
Colvin J’s statement was considered and not disapproved by the Full Federal Court in HSKJ[52] and more clearly supported by Wigney J in FHHM. [53]
[52] Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [31]-[35].
[53] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775 at [21].
This principle has been affirmed in a number of Tribunal cases,[54] for example being made explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:
…factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.[55]
[54] Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947 at [131]-[137].
[55] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858 at [88].
In Tewhare the Tribunal made it clear that:
While affording to primary considerations more weight than the other considerations is generally the case, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[56]
[56] Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875 at [50].
In CZCV the Tribunal stated:
When read in light of the Full Court’s comments in HSKJ, in the Tribunal’s opinion, it would be correct to state that although the Tribunal cannot elevate an other consideration to become a primary consideration, it can give greater weight to an other consideration over a primary consideration.[57]
[57] CZCV and Minister for Home Affairs (Migration) [2019] AATA 91 at [164]. As noted above, Ministerial Direction 65 (effective 23 December 2014 to 28 February 2019) is an analogous predecessor of Ministerial Direction 90 and the relevant parts are expressed in the same terms.
The Full Bench of the Federal Court gave specific reconsideration of the reasoning in Suleiman in its recent determination in FHHM where it said[58]:
[34] The point made in Suleiman was that the other considerations referred to in the direction were not inherently secondary and were not secondary in all circumstances. Generally, the primary considerations were such that they were to be given greater weight. However, particular circumstances may pertain that may justify greater weight being given to one or more of the other considerations than one or more of the primary considerations. It may be noted that the reference in Suleiman to an inquiry as to whether the case is outside the circumstances that generally apply should not be read as requiring an inquiry as to whether there was something about the nature of the case of the person wanting to maintain their status as a visa holder that was unusual or uncommon or out of the ordinary. Rather, the question was whether there was some reason why the general circumstance where the primary considerations should be given greater weight than the other considerations should not apply when it came to weighing the various considerations that were relevant to the particular case.
[39] …the reasons in Suleiman are not dealing with the weight to be given as between primary considerations. They are dealing only with the relative weight as between other considerations and primary considerations.
[40] …the final sentence in [23] of Suleiman… is dealing with two possibilities. First, one or more of the other considerations being treated as a primary consideration. Second, one of the other considerations being afforded the greatest weight of all the considerations (including primary considerations).
[58] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
Non-refoulment obligations
The Applicant raised in his Personal Circumstances form the following concern when addressing a question of any fears about a return to his country of citizenship:
“I fear for my life because of the gangs back home and I’m not going to let them take my life as soon as I get back to NZ if you deport me, or join there [sic] ways.”[59]
[59] G-documents at 60.
In oral testimony the Applicant specifically referenced the notorious New Zealand gang, the Mongrel Mob which he said had already recruited some members of his family.
The Tribunal notes that this allegation of fear of the gangs has not been raised by the Applicant as the basis of an application for a Protection Visa nor was it raised specifically in relation to non-refoulement obligations.[60] However, to hold an unrepresented and not particularly sophisticated applicant to technical requirements along these lines is not in keeping with the spirit of the review purposes of the Administrative Appeals Tribunal Act 1975 (Cth).
[60] MD90 para 9.1(5).
Nevertheless, the Tribunal cannot accept that this is a valid fear or objection raised by the Applicant. Between 2011 and 2019 the Applicant made 12 trips outside Australia,[61] all of which he affirmed were to New Zealand for the purposes of visiting relatives and friends. This is in no way consonant with having a degree of fear about gangs or the involvement of family members with them. In any event the fear is not of immediate harm but only of potential recruitment.
[61] G-documents at 71-72.
If the fear has any substance, the Applicant is able to make an application for a Protection Visa, consideration of which would have the effect of putting on hold any potential deportation until such a claim was resolved.[62]
[62] MD90 para 9.1(3).
For its immediate purposes, the Tribunal assesses that this criterion counts neutrally in relation to the Applicant.
Extent of impediments if removed
Sub-paragraph 9.2(1) of MD90 requires the Tribunal to consider, if relevant:
the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen's age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
The comparator here is not the difference between services or supports available tin Australia as compared with those in New Zealand, but rather the extent to which the Applicant, if returned there, would be on equal footing with other comparable citizens of that place. In any event, the Tribunal would have no difficulty in finding a high degree of comparability between the Australian and New Zealand welfare and other systems, indeed the Applicant’s status as a Maori citizen would accord him access to certain other specific benefits in that country. He is familiar with the culture and mores of the country and lived there for the formative years of his life until age 17 years.
The Applicant is a young man, with some employment skills and record and with a generally good state of health.
On his own testimony, although he would be separated from his son and his “step-parents”, he would be returning to a country where his parents and his nine siblings reside. The Tribunal accepts however that the Applicant has issues with at least one of his brothers arising from the alleged infidelity involving that sibling and his former partner.
Even in relation to his “step parents” and their children, no letters of support were forthcoming from them and it was the Applicant’s oral testimony that his contact with them had been limited and sporadic since his incarceration and was not extensive immediately prior to that date.
While there would undoubtedly be issues for the Applicant re-establishing his life in New Zealand these would not appear to be insuperable, although the Applicant writes that:
I have no home to return to, no employment, no family, no car for transportation. I have nothing if I return to my country and that hardship if I return is not see my child or ever being able to hold him and kiss him again, or watching him grow up.[63]
[63] G-documents at 60.
The only clearly identified impediment is separation from his son. As noted, that is a problematic issue in itself.
In assessing this criterion the Tribunal would, on balance, assign it a very limited weight in favour of the Applicant.
Impact on victims
To the extent that any victim can be identified it is clearly the Applicant’s former partner and although there was no direct testimony from her before the Tribunal the clear import of her Victim Impact statement is to the effect that she would be less fearful for herself and her son were the Applicant returned to New Zealand.
This criterion counts neutrally neither for nor against the Applicant.
Strength, nature and duration of ties to the Australian community
Under this criterion the Tribunal is obliged to consider matters such as the impact of the Applicant’s removal on immediate family members in Australia;[64] how long the Applicant has resided in Australia; the time at which any offending behaviour commenced; an Applicant’s positive contribution to the community and any impact on Australian business interests.
[64] Where those family members are citizens or permanent residents or entitled to remain in Australia indefinitely pursuant to MD90 para 9.4.1(1).
The Applicant has no identified immediate family in Australia. He arrived in Australia in January 2011 and his first recorded offence was in September 2013. There is no evidence (apart from his constant employment) that the Applicant has made any identifiable positive contribution to the Australian community. The business interests identified in MD90[65] must relate to a “major project” or “delivery of an important service” in Australia, neither of which are relevant in this application.
[65] MD90 para 9.4.2.
At the very best, given credit for a positive employment record and for the relationship with his “step-parents” any assessment of this criterion can only be in a very limited sense in favour of the Applicant.
CONCLUSION
In his final oral submission to the Tribunal the Applicant again expressed his sense of remorse, his desire to see his son again and his request for a “second chance”.
The Tribunal has never been averse to granting applicant’s a second chance. Indeed, as Deputy President McCabe explained, this is unsurprising given that “we are a nation built on second chances”.[66]
[66] Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23].
The problem confronting the Applicant is that he has had his second chance.
In September 2020 a Protection Order was taken out against him restraining him from committing any acts of domestic violence against his partner. The Applicant was present in court when the Order was made.[67] Only five weeks later the Applicant, in a dispute over the return of a mobile phone, a matter described by the Sentencing Judge as not being “much to set you off at all”,[68] violently assaulted his partner, occasioned her actual bodily harm and attempted to strangle and suffocate her.
[67] Respondent’s Tender Bundle at 23.
[68] G-documents at 32.
At no stage has the Applicant made any clear statement which recognises the harm done to his former partner nor the extent to which she has suffered at his hands.
Protection Orders exist for the protection of vulnerable people, primarily women threatened by male partners. They are not mere pieces of paper, they are instruments with legal force designed to give effect to a significant public policy, the minimisation and elimination of the scourge of domestic/family violence. Those who chose to ignore them must do so at their peril.
In reviewing the assessment of the various criteria under MD90:
(a)Protection of the Australian community counts moderately against the Applicant;
(b)Family violence counts heavily against the Applicant;
(c)Best interests of minor children count to a very limited extent in favour of the Applicant;
(d)The expectations of the Australian community count to a moderate degree against the Applicant;
(e)Non-refoulement obligations count neutrally in relation to the Applicant;
(f)Extent of impediments if removed count, to a very limited extent, in favour of the Applicant;
(g)Impact on victims counts neutrally in relation to the Applicant; and
(h)Strength, nature and duration of ties to the Australian community count, to a very limited extent, in favour of the Applicant.
The criteria which count in favour of the Applicant (best interests of minor children, extent of impediments and ties to the community) do so only to a limited degree. Several of the criteria (non-refoulement and impact on victims) count neutrally, neither for nor against. The criteria which count against the Applicant do so either moderately (protection of the Australian community and expectations of the community) or heavily (family violence).
Centrally, the criterion of domestic/family violence counts heavily against the Applicant and the Tribunal accords this this effectively determinative weight within its overall calculus.
Certainly, combining this with two of the other Primary Considerations, the balance falls heavily against the Applicant and against revocation of the cancellation of his visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 127 (one hundred and twenty -seven) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

......................................[sgd]..................................
Associate
Dated: 21 April 2022

Date(s) of hearing: 7 April 2022

Applicant: In person

Solicitors for the Respondent: Mr A Chan, Sparke Helmore Lawyers

Date(s) of hearing:	7 April 2022
Applicant:	In person
Solicitors for the Respondent:	Mr A Chan, Sparke Helmore Lawyers