Adefarakan and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Adefarakan and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4216 (20 November 2023)
Division:GENERAL DIVISION
File Number: 2023/6338
Re:Adebayo Ademola Adefarakan
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member D. Cosgrave
Date of decision: 20 November 2023
Date of written reasons: 20 December 2023
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 24 August 2023 not to revoke the cancellation of the Applicant’s visa.
................[SGD]...........
Member D. Cosgrave
Catchwords
MIGRATION – Mandatory visa cancellation – Nigerian citizen – Partner (Class BS) (Subclass 801) visa – failure to pass good character test – Section 501(6)(d)(ii) – criminal record – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 99 applied – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bartlett and Minister for Immigration and Border Protection, [2017] AATA 1561
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
Demir V Minister For Immigration, Citizenship And Multicultural Affairs [2023] FCA 870
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019)
Holloway V Minister For Immigration, Citizenship And Multicultural Affairs [2022] FCA 1126
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Member D. Cosgrave
20 December 2023
INTRODUCTION

Mr Adefarakan seeks review of the Respondent’s delegate’s 24 August 2023 decision not to revoke the mandatory cancellation of his Partner (Class BS) (Subclass 801) visa (the visa).[1]
[1] G documents, G2, page 7. G documents are so named because they are provided under s 501G of the Migration Act 1958 (Cth). They consist of documents in the possession or control of the Respondent relevant to the making of a reviewable decision. They usually accompany the Minister’s written notice regarding a visa cancellation, refusal, or non-revocation.
The hearing was held by audio visual link in Brisbane on 31 October and 1 November 2023. Ms Mamarot of SouthWest Migration & Legal Services represented Mr Adefarakan. Mr Burke of Sparke Helmore Lawyers represented the Respondent.
On 20 November 2023, the Tribunal met its 84-day statutory obligation[2] by providing a short form decision in which it affirmed the decision under review.[3] The Tribunal now gives its reasons for its decision.
[2] Pursuant to s 500(6L) of the Migration Act 1958 (Cth).
[3] Khalil v Minister for Home Affairs (2019) 271 FCR 326 [41]–⁠[48].
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
FACTS
Mr Adefarakan is a 32-year-old[4] Nigerian citizen who first arrived in Australia on 28 December 2014.[5] He has not departed Australia since then.
[4] G1, page 2.
[5] G23, page 467.
On 22 December 2022, Mr Adefarakan's visa was cancelled under s501(3A) of the Migration Act 1958 (Cth) (the Act) [6] as he did not pass the character test because of his "substantial criminal record".[7]
[6] G1, page 18.
[7] As defined in ss 501(6)(a) and 501(7)(c) of the Act.
Section 501(7)(c) provides that for the purpose of the character test a person has a 'substantial criminal record' if the person has been sentenced to a term of imprisonment of 12 months or more.
On 13 December 2022, Mr Adefarakan was convicted of Assault occasioning actual bodily harm (DV)-T2, Common assault (DV)-T2 (two counts) and Contravene prohibition/restriction in AVO (Domestic) for which he was sentenced to an aggregate term of imprisonment of 12 months. [8]
[8] G7, pages 37 – 39.
Mr Adefarakan appealed the sentence’s severity.
On 14 March 2023 the District Court of New South Wales reduced his sentence to an aggregate term of nine months' imprisonment.[9]
[9] G9, page 49.
The mandatory cancellation decision was affected by the decision in Pearson v Minister for Home Affairs [2022] FCAFC 203. Mr Adefarakan was released from immigration detention in December 2022.
However, his visa cancellation decision was subsequently validated by the Migration Amendment (Aggregated Sentences) Act 2023.
On 24 August 2023, a delegate of the Respondent decided not to revoke the mandatory cancellation of Mr Adefarakan’s visa.[10]
[10] G5, page 12.
On 29 August 2023, Mr Adefarakan applied to the Tribunal for review of the delegate’s decision to not revoke the mandatory cancellation of his visa. [11]
[11] G1, page 1.
OFFENDING HISTORY
Mr Adefarakan has been convicted of 7 offences.[12]
[12] Exhibit 8: Supplementary Materials Bundle, SM2, page 75 and G2, page 184. See also observation by Magistrate Van Zuylen on 17 November 2022 at G1, page 47, line 8.
His offending can be categorised as follows:
(a)destroying or damaging property;
(b)common assault;
(c)assault occasioning actual bodily harm;
(d)contravening domestic violence orders; and
(e)entering proscribed premises without lawful excuse.
On 9 August 2017 Mr Adefarakan was convicted of Common assault (DV)-T2 and Destroy or damage property (DV). He was sentenced to a 12 month Section 9 Good behaviour bond.[13]
[13] G7, page 39.
The New South Wales Police Fact Sheet dated 17 July 2017 which was before the court in relation to the above conviction, reports that Mr Adefarakan and the victim got into a violent argument. Mr Adefarakan then committed a series of unlawful assaults against the victim, including hitting her wrist, kicking her bottom area, kicking her calf area, pulling her hair and forcing her to put a towel in her mouth to subdue her cries. The property damage related to two broken picture frames.[14]
[14] G10, page 52.
On 10 December 2020 Mr Adefarakan was convicted of Assault occasioning actual bodily harm (DV)-T2. He was sentenced to a two year Community Correction Order (CCO), 200 hours of community service work and directed to complete mental health treatment, counselling and the REINVEST programme if suitable.[15]
[15] G7, page 38 and G18, page 245.
The 1 October 2020 New South Wales Police Fact Sheet states that Mr Adefarakan and the victim had been in a relationship for approximately 18 months.
On 30 September 2020 they got into an argument about finances which, by the following morning, changed to an argument about trust.
At one point Mr Adefarakan pushed the victim in the chest area resulting in her falling backwards into the bathtub and into a bucket of wet clothes. While she was down, Mr Adefarakan punched her several times to the stomach area. The victim got up and Mr Adefarakan then slapped her a number of times to her face, giving her a black eye. They continued to verbally argue until the victim left the property and attended the police station. Mr Adefarakan admitted slapping the victim but denied punching her. A two year Apprehended Domestic Violence Order was applied to protect the victim.[16]
[16] G18.
On 13 December 2022 in the Local Court of New South Wales, Mr Adefarakan was convicted of ‘Enter prescribed premises of any person w/o lawful excuse’.[17]
[17] G8, pages 44-46 and G18, pages 247-255.
Mr Adefarakan got in an argument with the victim, who was his partner at the time. She asked him to leave her home. He returned to her property later that day wanting to talk to her about their relationship and entered her home without her permission. She called the police and Mr Adefarakan was arrested.[18]
[18] G8, pages 44-46 and G18, pages 247-255.
On 13 December 2022 Mr Adefarakan was also convicted of ‘Contravene prohibition/restriction in AVO (domestic), two charges of Common assault (DV)-T2’, and ‘Assault occasioning actual bodily harm (DV)-T2’. He was sentenced to an aggregate term of 12 months imprisonment.[19]
[19] G8, pages 44-46.
Mr Adefarakan appealed the sentence and on 14 March 2023 the District Court of New South Wales reduced the aggregate term to nine months imprisonment.[20]
[20] G9, page 49.
In relation to one of 13 December 2022 charges of ‘Common assault (DV)-T2’, the New South Wales Police Fact Sheet dated 5 August 2022 reports Mr Adefarakan and his former partner were having an argument when Mr Adefarakan grabbed the victim's shoulder and pulled her backwards. He then raised his hand and the victim believed he was going to slap her so she pushed him with enough force so that he stepped back. She then told him to leave the property, which he agreed.[21]
[21] G18, pages 249-255.
In relation to the other 13 December 2022 charge of ‘Common assault (DV)-T2’, ‘Contravene prohibition/restriction in AVO (domestic) and Assault occasioning actual bodily harm (DV)-T2’, the 30 August 2022 New South Wales Police Fact Sheet notes that there was a pre-existing Apprehended Domestic Violence Order (ADVO) in place to protect Mr Adefarakan's former partner from him.[22]
[22] G18, pages 256-265.
On 30 August 2022, Mr Adefarakan called his former partner and accused her of speaking badly of him. She ended the conversation and blocked his number. Mr Adefarakan subsequently attended her home in breach of the ADVO. When his former partner opened the door, she later stated that she could smell alcohol on his person and asked him to leave. Mr Adefarakan stated 'I just want to say one thing and I'll leave’. His former partner allowed him inside to talk. The conversation escalated and Mr Adefarakan stated ‘I could kill you and no one would know’. Mr Adefarakan then slapped her face causing her pain and she fell to the floor. He then held her towards the floor to prevent her from screaming. In an attempt to flee from him she got up and ran to the bathroom. She called 000, and whilst on that call, Mr Adefarakan tried to force entry into the bathroom. Mr Adefarakan forcefully gained entry and held the victim to the wall with both his hands on her shoulders. Mr Adefarakan was subsequently arrested.[23]
[23] G18, pages 256-265.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) and Section 500 of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read with section 501(6), oblige the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test because they are serving a full-time sentence of imprisonment.
The character test is defined in s 501(6) of the Act. Relevant for this matter, a person does not pass the character test if:
S501(6)(d)
In the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:
…
(ii) harass, molest, intimidate or stalk another person in Australia; or
Under s 501CA(4), the Respondent may revoke the original decision if:
(a)representations have been made by the person in accordance with the invitation: s 501CA(4)(a); and
(b)the Minister is satisfied that:
(i)the person passes the character test:[24] ; and if not
(ii)whether there is another reason why the original decision should be revoked.[25]
[24] Section 501CA(4)(b)(i) of the Act.
[25] Section 501CA(4)(b)(ii) of the Act.
MATTERS FOR CONSIDERATION
Mr Adefarakan’s visa was cancelled on the basis that he had failed the character test once the delegate considered and applied Section 501(6)(d)(ii).
Section 501(6)(d)(ii) of the Act sets out:
‘A person will not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will harass, molest, intimidate or stalk another person in Australia.’
Section 501(11) of the Act provides that:
Conduct amounting to harassment or molestation
(11) For the purposes of the character test, conduct may amount to harassment or molestation of a person even though:
(a) it does not involve violence, or threatened violence, to the person; or
(b) it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person.
The first issue for the Tribunal to consider is whether Mr Adefarakan passes the character test.
If Mr Adefarakan fails to pass the character test then, the second issue for the Tribunal to consider under Section 501CA(4)(b)(ii) of the Act is whether the Tribunal is satisfied of there being another reason to revoke the cancellation decision.[26] The Tribunal “stands in the shoes of the original decision-maker” but with regard for the situation as at the time of its consideration.[27]
[26] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[27] Nathanson v Minister for Home Affairs [2022] HCA 26 (“Nathanson”); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134]; Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).
Consideration of the Character Test and Section 501(6)(d)(ii)
Summarising the Respondent’s contentions in relation to the character test:
(a)While past conduct is not determinative, Mr Adefarakan has a history of repeated and frequent family violent conduct including threats and actions intended to scare his partner. He has committed assaults on four separate occasions against three separate partners over the course of a five-year period. He poses an appreciable risk of harassment, molestation and intimidation to any future partner he may have.
(b)The evidence indicates a pattern of domestic incidents and heated arguments in Mr Adefarakan’s personal relationships. [28]
(c)There is insufficient evidence of meaningful rehabilitation. Mr Adefarakan has previously undertaken counselling and engaged in men’s groups and positive lifestyle programs to little apparent effect on his conduct. [29] Since the December 2022 visa cancellation decision, he saw a psychologist in January 2023,[30] undertook courses for substance abuse and domestic violence in or about May 2023,[31] and has attended sessions with a counsellor since being detained.[32] All this conduct has been in reaction to his visa cancellation.
(d)Addressing Mr Adefarakan’s claims of remorse, it should be noted that he made similar claims in 2020[33] before reoffending.
(e)Mr Adefarakan has breached an ADVO once as well as a Community Corrections Order. [34]
[28] Tender Bundle 4, pages 103, 115 and 123-124.
[29] Tender Bundle 2, page 33, Tender Bundle 4, page 129.
[30] G14, page 154.
[31] G18, pages 266-267.
[32] G19, pages 292-428.
[33] Tender Bundle 2, page 33.
[34] G7, page 38 and G16, page 264.
Summarising Mr Adefarakan’s representative’s contentions in relation to the character test:
(a)They initially reserved their position as to whether the 27 July 2023 visa cancellation decision on the basis of section 501(6)(d)(ii) was valid but withdrew this reservation during the hearing.[35]
(b)They conceded that Mr Adefarakan has a serious criminal history and that he has assaulted three former partners in 2017, 2020 and 2022.
(c)They conceded that Mr Adefarakan’s offending has constituted family violence and, as such, the Tribunal should deemed his offending as very serious.
(d)They conceded that Mr Adefarakan did engage in behaviour that can be deemed as intimidating conduct and would cause an individual to be severely apprehensive, fearful, alarmed or distressed.
(e)Notwithstanding these concessions, there is only a minimal or remote chance of Mr Adefarakan engaging in that behaviour again.
(f)The basis for this assessment of the risk as minimal or remote lies in Mr Adefarakan’s rehabilitation efforts.
(g)In contrast to the Respondent’s submission that Mr Adefarakan only took part in rehabilitation as a reactive response to his visa cancellation, Mr Adefarakan’s representative submits that he engaged in treatment when his visa was reinstated and before he surrendered himself to immigration detention.
(h)Further evidence of Mr Adefarakan’s changed attitudes can be found in a NSW Department of Corrective Services case note dated 11 January 2023[36]
(i)Addressing Mr Adefarakan’s remorse, Mr Adefarakan’s representative maintains that he has evidenced genuine remorse and also relies on Ms S’s testimony as to the changes in her former partner.
[35] Transcript, page 43, lines 15 -28.
[36] Respondent’s Tender Bundle, TB5, page 167.
To expressly articulate its task, the Tribunal has holistically considered the totality of the evidence (see below) in addressing and assessing the risk that Mr Adefarakan will harass, molest, intimidate or stalk another person in Australia.
The issues surrounding the consideration of risk under s.501(6)(d) of the Act, from which paragraphs 8.1.2(1) and (2) of the Direction are drawn, have been extensively considered by the Tribunal and superior courts.[37]
[37] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (QKVH 2020); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.

The clear legislative intention is that the threshold is whether there is ‘a’ risk.[38]
The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specifically removed the word ‘significant’ from s 501(6)(d) leaving it as ‘a’ risk.[39]
On this occasion the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 stated (at [46]):
“The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.”
[38] See the discussion in GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48]–[52].
[39] See the discussion in Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal (FC)), the Full Court of the Federal Court (Perram, Murphy and Lee JJ) stated at [2]:
‘… Section 501(6)(d)(i) provides that a person does not pass the character test if
“in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would ... engage in criminal conduct in Australia”. The section requires an evaluative judgment by the decision-maker, in the present case the Minister personally, as to whether the decision-maker is satisfied that there is such “a risk.” Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person.’
In Sabharwal (FC) the Full Court noted that the Minister said he ‘could not rule out the possibility of further offending by Mr Sabharwal.’[40] The Full Court, citing Justice Moshinsky’s decision in Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588, 608 [62], found that the Minister’s statement was, in substance, also a finding that there was a risk of Sabharwal re-offending.
[40] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, [58] (“Sabharwal (FC)”).
One guide in considering whether there is a risk can be found In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) Chief Justice Brennan, Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court observed as follows (at 574-575): [41]
‘The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.’
(Added emphasis.)
[41] QKVH and the Minister for Home Affairs (“QKVH 2020”) [2020] AATA 4431 (2 November 2020) at [5].
Justice Mortimer explored the notion of risk and its nexus to future possibilities in Murphy v Minister for Home Affairs [2018] FCA 1924, [37], where Her Honour noted:[42]
‘That is, part of the Tribunal’s task was to decide not only whether the Applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.’
[42] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
Consequently, by applying the reasoning in Sabharwal FC and Guo to this matter, the Tribunal’s task is to make an assessment of whether there is “a risk” or a likelihood that Mr Adefarakan will harass, molest, intimidate or stalk another person in Australia.
To assist its assessment, the Tribunal has created the following chronology of events, incorporating Mr Adefarakan’s convictions, visa cancellations and rehabilitation efforts:

Date

Event

9 August 2017

Mr Adefarakan was convicted of Common assault (DV)-T2 and Destroy or damage property (DV). He was sentenced to a 12 month Section 9 Good behaviour bond.

22 October 2020

In a letter to the Court, Mr Adefarakan states that: “I will continue to engage with my counsellors and will use this as a positive catalyst to change myself for the better.” [43]

12 November 2020

Mr Adefarakan claims, in a meeting with NSW Department of Corrective Services staff, that he has commenced individual counselling through the Salvation Army.[44]

10 December 2020

Mr Adefarakan was convicted of Assault occasioning actual bodily harm (DV)-T2. He was sentenced to a two year Community Correction Order (CCO), 200 hours of community service work and directed to complete mental health treatment, counselling and the REINVEST programme if suitable.

13 December 2022

Mr Adefarakan was convicted Assault occasioning actual bodily harm (DV)-T2, Common assault (DV)-T2 (two counts), Enter prescribed premises of any person w/o lawful excuse and Contravene prohibition/restriction in AVO (Domestic) for which he was sentenced to an aggregate term of imprisonment of 12 months

22 December 2022

Mr Adefarakan’s visa was cancelled under s501(3A) as a delegate was satisfied he did not pass the character test because of the operation of s501(6)(a) (substantial criminal record) on the basis of s501(7)(c) and because he was serving a sentence of imprisonment of 12 months or more for an offence against a law of the Commonwealth, a State or a Territory. Notice was sent to Mr Adefarakan by hand delivery.[45]

19 January 2023

The Department of Home Affairs received Mr Adefarakan’s representations about the revocation of the cancellation decision.[46]

28 January 2023

Mr Adefarakan commenced counselling sessions with Ji Fang Zhou, a psychologist. He initially presented with anxiety and stress issues in the context of legal, accommodation, visa and relationship/family pressures. He also reported a history of trauma due to intrafamilial sexual abuse in childhood.

March 2023 – June 2023

Mr Adefarakan attended chaplaincy sessions with Number 8 Prison Project.[47]

10 March 2023

Instructed to surrender himself to immigration detention, Mr Adefarakan voluntarily complied.

14 March 2023

The District Court of New South Wales reduced his sentence to an aggregate term of nine months' imprisonment

23 March 2023

Attendance at Smart Recovery Workshop. [48]

4 May 2023

Attendance at Smart Recovery Workshop.[49]

18 May 2023

Attendance at Smart Recovery Workshop.[50]

25 May 2023

Attendance at Smart Recovery Workshop.[51]

26 May 2023

Certificate of course completion ‘Drug and Alcohol Abuse 101’ issued.

27 May 2023

Certificate of course completion ‘Domestic Violence 101’ issued.

July 2023

Completed the Circuit Breaker violence prevention program.[52]

16 August 2023

Commenced Anger Management course.[53]

13 October 2023

Certificate of course completion ‘Anger Management 101’ issued.[54]

22 October 2023

Engaged in SMART Recovery program. [55]

[43] Tender Bundle 2, page 33.
[44] Respondent’s Tender Bundle, TB5, page 127.
[45] G26, page 275.
[46] G25, page 472.
[47] G21, page 461 – 462.
[48] G19, page 324.
[49] G19, page 311.
[50] G19, page 304.
[51] G19, page 300.
[52] G19, pages 444, 446-449.
[53] Applicant’s Further Documents, page 1.
[54] Applicant’s Final Tender Bundle, page 20.
[55] Applicant’s Final Tender Bundle, page 27.
Tribunal’s Findings

In making its assessment, the Tribunal has had regard to the evidence of Mr Adefarakan's childhood sexual abuse, his depression, his use of alcohol and drugs, his gambling as well as his convictions and his rehabilitation efforts.
A common theme running through all of these is how Mr Adefarakan responds to adverse stress and pressure when in the community. Notable examples of such stress and pressure, as referenced by Mr Adefarakan in his 25 October 2023 statement,[56] include the deaths of his father and of his client ‘Chris’.
[56] Applicant’s Tender Bundle, pages 44-51 at page 47.
The parties agree that Mr Adefarakan has engaged in intimidating conduct in the past.[57]
[57] Transcript, page 44, lines 8 – 11.
With the exception of his October and November 2020 claims that he is undertaking counselling, all of Mr Adefarakan’s evidenced rehabilitation efforts have occurred after he became aware that his Visa was at risk apart from his written apology to Ms H dated 2 December 2022.[58]
[58] Applicant’s Tender Bundle, page 67 and Transcript, page 22, line 43 – page 23, line 15.
With the exception of his counselling sessions with his psychologist at the beginning of 2023, Mr Adefarakan’s rehabilitation efforts have not been tested either in a relationship or in the community.
The Tribunal acknowledges Mr Adefarakan’s evidence regarding the risk management factors or benefits inherent in his relationship with his daughter with Ms S . It should also be acknowledged that this risk management factor did not prevent Mr Adefarakan from re-offending.
The Tribunal notes that in his oral testimony, Mr Adefarakan tended at times to seek to minimise the nature of his offending.[59] This, taken with a lack of several indicia of remorse such as demonstrating genuine regret, making amends or changing his behaviour, suggest ongoing static risk factors in terms of the risk that he will harass, molest, intimidate or stalk another person in Australia.
[59] See also G8, page 45, line 21 in Magistrate Van Zuylen’s 13 December 2022 sentencing decision.
In his 13 December 2022 sentencing decision, Magistrate Van Zuylen observed the following about Mr Adefarakan:
‘You have got a great deal of, you have been given a great deal of support by family, partners, then partners, nurses, friends, and all you have done is commit further offences and get your self bail refused, which is very poor behaviour on your part.’[60]
[60] G8, page 46, lines 41- 44.
Overall, the risk management or mitigation factors presented by his rehabilitation efforts and his personal relationships are either untested or have proved insufficient in the past to prevent the risk that he will harass, molest, intimidate or stalk another person in Australia.
Considering all these factors and applying a synthesis approach as set out in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs[61], the Tribunal concludes that there is a risk that Mr Adefarakan will in the future harass, molest, intimidate or stalk another person in Australia. This conclusion is not based solely on his past criminal and general conduct, but these do serve as an indicator. The conclusion also relies on the current adverse balance of risk factors and risk management factors in Mr Adefarakan’s life as set out in the evidence before the Tribunal.
[61] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138.
Consequently, the Tribunal finds that Mr Adefarakan does not pass the character test and therefore s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the mandatory cancellation decision.
IS THERE ANOTHER REASON WHY MR ADEFARAKAN’S VISA CANCELLATION SHOULD BE REVOKED?
The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 at [27], approving the reasoning in Viane,[62] identified the following principles as being relevant to the statutory task conferred by Section 501CA(4):
‘If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.…’
[62] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
When the Tribunal assesses and considers the factors weighing for and against setting aside a visa cancellation, Section 499(2A) of the Act requires it to comply with Direction 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[63]
[63] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at para [38].
The Direction
The Direction contains mandatory and aspirational considerations guiding the exercise of statutory power under the Act.[64]
[64] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, at [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, at [45].
The following principles in paragraph 5.2 of the Direction inform the decision-making process:[65]
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-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.
3The 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.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
[65] Paragraph 5.2 of the Direction.
Paragraph 6 of the Direction provides that, informed by the above principles, a

decision-maker must consider the Primary and Other considerations described in Paragraphs 8 and 9 of the Direction where relevant to their decision making.
Paragraph 7(1) of the Direction provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Paragraphs 7(2)-(3) of the Direction state that ‘Primary considerations should generally be given greater weight than the other considerations,’ and ‘One or more primary considerations may outweigh other primary considerations.’
Paragraph 8 of the Direction provides the following primary considerations:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the strength, nature and duration of ties to Australia;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
Paragraph 9 of the Direction identifies the following non-exhaustive list of other considerations to be considered where relevant:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
The Tribunal is not precluded from finding that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. This depends on the specific circumstances of each case.[66] The weighing process is determined by decision-makers exercising the relevant power under the Act.[67]
[66] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[67] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
EVIDENCE
The following is an overview of the evidence tendered or adduced before the Tribunal. The evidence referred to below includes documentary evidence collated for the purposes of section 501G of the Act, documents tendered by the Respondent and the Applicant and testimony given by Mr Adefarakan and his former partner Ms S.
Documentary evidence

The Tribunal received written evidence during the hearing, which is attached to this Decision and marked ‘Annexure A’. The following documents were tendered into evidence and considered by the Tribunal:
(a)G Documents.[68]
(b)The Applicant’s statement of facts, issues and contentions (SFIC).[69]
(c)The Applicant’s tender bundle, incorporating a support letter and an email from Nadia Rees, documents evidencing Mr Adefarakan’s educational and training achievements which encompass rehabilitation courses, letters of support from Adedoyin Adefarakan, Child A, Child J, Ms S and Anthony Dauger, an apology from Mr Adefarakan and photographs of Mr Adefarakan with his daughter and stepdaughter.[70]
(d)The Applicant’s further documents which comprise a 25 October 2023 letter from Cognitive Principle Therapy Pty Ltd attesting that Mr Adefarakan had commenced an anger management course on 16 August 2023, a photograph of the Smart Recovery discussion topics, and a 7 June 2023 letter from Number Eight Prison Project Incorporated.[71]
(e)The Respondent’s SFIC.[72]
(f)The Respondent’s Tender Bundle.[73]
[68] Exhibit 1: G-Documents G1 to G12.
[69] Exhibit 2: Applicant’s Statement of Facts, Issues and Contentions.
[70] Exhibit 5: Applicant’s Tender Bundle.
[71] Exhibit 6: Applicant’s Further Documents.
[72] Exhibit 2: Respondent’s Statement of Facts, Issues and Contentions.
[73] Exhibit 7: Respondent’s Tender Bundle.
Oral Testimony
The witnesses who gave evidence during the hearing were:
(a)Mr Adefarakan; and
(b)Ms S.
Mr Adefarakan’s evidence
Relevant aspects of Mr Adefarakan’s evidence are summarised below.
Examination-in-chief
Ms Mamarot had Mr Adefarakan affirm his 25 October 2023 statement.[74]
[74] Applicant’s Final Tender Bundle, pages 44-51.
Cross-Examination
Mr Burke cross-examined Mr Adefarakan:
Family Background
‘Mr Burke: You attended secondary school in Lagos at the Dream Maker’s International School, yes?
Mr Adefarakan: Yes.
Mr Burke: You completed secondary school in Lagos, yes?
Mr Adefarakan: Yes, I did. Yes, I did.
Mr Burke: I understand you went to university in Lagos, is that correct?
Mr Adefarakan: Yes. Yes, I did.
Mr Burke: What did you study at university when you were in Nigeria?
Mr Adefarakan: I studied – I studied Diploma in Business. Business Administration.
Mr Burke: Who paid for your tuition fees at the time?
Mr Adefarakan: My mum. My mother.
Mr Burke: Mr Adefarakan, I understand that you grew up in a well-off family in Nigeria? That’s correct, isn’t it?
Mr Adefarakan: Yes.’[75]
[75] Transcript, page 4, lines 30-44.
and
‘Mr Burke: Mr Adefarakan, it appears to me that your family – and in particular, your mother in Nigeria – are still relatively well-off compared to other persons living in Nigeria. You’d agree with that, wouldn’t you?
Mr Adefarakan: Since the – since all this incident has happened, a lot has happened to them. A lot has happened to mum. Mum is – mum is not healthy like the way she used to do, the way she used to be. So things have gone down for her mentally and emotionally.
Mr Burke: But, Mr Adefarakan, you’ve just suggested that your mother is providing financial support for a PhD degree for your brother in England at the King’s College there. Your brother in England is working in a financial services role. And previously you’ve had – or you grew up in a well-off family in Nigeria. I’m suggesting to you that it appears to still remain the case that your family that live in Nigeria are well-off?
Mr Adefarakan: Yes.
Mr Burke: You agree with that?
Mr Adefarakan: Yes, I do.
Mr Burke: And if you were to return to Nigeria, your mother would provide financial support for you to get yourself back on your feet, (indistinct)?
Mr Adefarakan: The thing is when – the thing is when everything – when I started having problems with my relationship, a lot happened to mum, whereby mum has to sell some of our property. Some of our property to, like, to be able to support me, and also to be able to support my brother. Even before coming to Australia – even before coming to Australia, mum had to sell one of the properties that my dad gave me, I inherited, for me to – so she can be able to sponsor me to Australia. That was 2014.
Mr Burke: It remains the case that your mother living in Nigeria is still well-off and would support you if you were to return there? Yes? You’d agree with that?
Mr Adefarakan: Yes, I would agree.
Mr Burke: Mr Adefarakan, now turning to your time in Australia, you’ve provided evidence of your work history here, and I understand that included you working in disability support, yes?
Mr Adefarakan: Yes, correct. Yes, correct, sir.
Mr Burke: Is it your intention to work in that field if you’re released into the Australian community?
Mr Adefarakan: Can you please repeat the question, please?
Mr Burke: Is it your intention to work in the field of disability support if you’re released into the Australian community?
Mr Adefarakan: Yes. Yes.
Mr Burke: Mr Adefarakan, I understand that the convictions you have – so convictions involving domestic violence – would have an impact on your ability to work in that field. That’s right, isn’t it?
Mr Adefarakan: Yes, sir. Yes, sir.
Mr Burke: So have you given any thought that, in relation to your future plans in Australia?
Mr Adefarakan: I have made, like – what I was thinking if I’m opportune to get my visa back again, I was going to apply for my Working With Children Check, if I get it clear, then I can, like, you know, get a job and just be honest with my employer, tell them my past and how I’ve rehabilitated myself, how I have helped myself and my journey.
Mr Burke: But are you not concerned that you wouldn’t get the required clearances to work in the area you want because of your convictions?‑
Mr Adefarakan: I – I’ve got – I’ve got my other plans, like plan B, for me to, like, you know, go back – either go back – I have two options, or two or three options. Either I go to my real estate, to be a sales assistant.’[76]
[76] Transcript, page 5, line 31 – page 6, line 40.
Relationship with Ms S
‘Mr Burke: After you met her in 2015, when did you begin having a romantic relationship with her?
Mr Adefarakan: It was when we met, 2015. We started off – we started off 2015, and then everything went further.
Mr Burke: When you met [Ms S], she had a child from an earlier relationship that she was in, yes?
Mr Adefarakan: Yes, correct.
Mr Burke: And that is [Child J]?
Mr Adefarakan: [Child J], yes, correct, sir.
Mr Burke: [Child J], okay. And your daughter, [Child A], was born in October 2015 to [Ms S]Ms S, yes?
Mr Adefarakan: Yes, sir.
Mr Burke: And were you living together with [Ms S] and the two children after [Child A] was born?
Mr Adefarakan: Yes, sir. Yes, sir.
Mr Burke: When did you stop living in the same residence as [Ms S] and the two children?
Mr Adefarakan: 2019, April – I think April it was. 2019.
Mr Burke: Mr Adefarakan, I’m now going to ask you a number of questions about the incident that occurred on 17 July 2017 that resulted in you receiving convictions?
Mr Adefarakan: Yes, sir.’[77]
[77] Transcript, page 7, lines 1-21.
and
‘Mr Burke: And at the time both of the children were in the house. So, [Child J], who was seven years old at the time. And your daughter, [Child A]. They were both in the house, yes?
Mr Adefarakan: Yes, sir.
Mr Burke: So, Mr Adefarakan, the fact sheet states that you left for work in the morning and [Ms S] called you because of ongoing difficulties in your relationship and said, ‘I can’t do this anymore’. The fact sheet says that in response you said, ‘Wait til I get to you and see you, I’m going to kill you.’ Do you accept that in response to [Ms S], you threatened to kill her?
Mr Adefarakan: Yes. Yes, sir. I’m accountable, sir.
Mr Burke: And, Mr Adefarakan, you were on your way to work at the time, and it was the morning. So you weren’t intoxicated then, were you?
Mr Adefarakan: No, sir.
Mr Burke: So you weren’t drunk?
Mr Adefarakan: No, sir.
Mr Burke: Mr Adefarakan, the fact sheet goes on to outline that you returned the house and had a violent argument with [Ms S], and that as she was sitting on a couch you committed many violent actions towards her. The first was that you struck [Ms S] with your right hand, ‘which caused pain and bruising to her’. Do you accept that you did that to [Ms S]?
Mr Adefarakan: Yes, sir. I’m accountable, sir.
Mr Burke: The fact sheet also states that you kicked [Ms S] in the bottom and that you kicked her in the calf. Do you accept that you did that?
Mr Adefarakan: Yes, sir. I’m accountable, sir.
Mr Burke: Mr Adefarakan, the fact sheet also states that you pulled [Ms S]’ hair. Do you accept that you did that?
Mr Adefarakan: Yes, sir. Yes, sir. I’m accountable.
Mr Burke: [Ms S] was crying so much that she was forced to put a towel in her mouth to subdue the cries. Do you agree with that?
Mr Adefarakan: Yes, sir. I did – I did, sir.
Mr Burke: Mr Adefarakan, the fact sheet also says that you told [Ms S] to be quiet or that you’d kill her, and that you also grabbed her around the neck when she attempted to leave. Do you accept that you did those things as well?
Mr Adefarakan: Yes, I’m accountable’.[78]
[78] Transcript, page 8, lines 1-38.
and
‘Mr Burke: And you did that, Mr Adefarakan, to try and scare [Ms S] even further, yes?
Mr Adefarakan: Yes, I was very impulsive in my character at the time.
Mr Burke: Mr Adefarakan, you appear to say something different in this document that’s annexed to your current statement. In the second paragraph on page 56 you say: ‘I was so angry that she was yelling like that in front of her daughter, that I broke a couple of our picture frames and went into another room and waited until the police arrived’?
Mr Adefarakan: Sorry, what page was that, please, sir?
Mr Burke: Page 56 of the applicant’s tender bundle. So not the first booklet I showed you. The one that’s titled, ‘Applicant’s tender bundle’?
Mr Adefarakan: Yes.
Mr Burke: Page 56 of that. So, Mr Adefarakan, I’ll put it to you again – in this statement which was provided as annexure A to the statutory declaration that your lawyers provided to tribunal, you refer to the incident in 2017 with [Ms S] and say that you were so angry that [Ms S] was yelling in front of her daughter that you broke a couple of picture frames and went into another room and waited until the police arrived?
Mr Adefarakan: Yes, sir. Yes, that was true. I – I – I broke ‑ ‑ ‑
Mr Burke: Mr Adefarakan ‑ ‑ ‑?
Mr Adefarakan: I broke – yes.
Mr Burke: Go on, please?
Mr Adefarakan: Okay. I broke – I broke the picture frame.
Mr Burke: Yes, and Mr Adefarakan, in this statement you’re really try to say that you broke them because [Ms S] made you angry because she was yelling, yes?
Mr Adefarakan: I’m accountable for everything I’ve done. Everything. I’m accountable. I was very impulsive with my character at the time.’[79]
[79] Transcript, page 9, lines 16-43.
and
‘Mr Burke: But before you accepted that you broke the frames because you were trying to scare [Ms S ] further. So do you remain of the position that you broke the frames because [Ms S] made you angry?
Mr Adefarakan: Yes, I agree. I agree, sir.
Mr Burke: And Mr Adefarakan, during the incident [Ms S]’s seven-year-old daughter was there at the time and she saw your violent outburst, yes?
Mr Adefarakan: Yes, sir. Yes, sir.
Mr Burke: And [Ms S]’s’ seven-year-old daughter was distressed by you acting violently and threatening towards [Ms S]. You’d agree with that, yes?
Mr Adefarakan: Yes, sir. Yes, sir.
Mr Burke: So you’d accept, Mr Adefarakan, that you scared [Ms S] and the seven-year-old daughter at the time?
Mr Adefarakan: Yes, sir. I did.
Mr Burke: Sorry, could you repeat that? My connection, I think, was disturbed a bit?
Mr Adefarakan: Yes, I did. I did scare them.
Mr Burke: And in this statement that’s provided at annexure A to your statutory declaration, you appear to suggest that the seven-year-old daughter was scared because of the way [Ms S] was shouting. That’s not really true, is it? [Ms S]’s’ daughter was scared because of the way you were acting. Because of the violence you were showing. You’d agree with that, yes?
Mr Adefarakan: I regret it. Yes.
Mr Burke: Mr Adefarakan, in the statement that’s annexed to your statutory declaration, do you agree that you’re trying to provide an explanation for your violent outburst in 2017 that puts some of the blame on [Ms S]?
Mr Adefarakan: At the time then, I – at the time then I did not – I – I wasn’t able to – to be accountable for my actions. I was very impulsive with my character at the time. I was very controlling. I was selfish. And I’m – and I’m extremely remorseful for my actions now I have stepped back and have reflect on my past behaviour. It’s not acceptable.
Mr Burke: Mr Adefarakan, I’m asking about what’s said in the statement in the applicant’s tender bundle about the incident in 2017. Now I suggest to you that in that statement you’re trying to cast some of the blame for your actions upon [Ms S]Ms S. Do you have anything to say about that?
Member: Do you have anything to say, Mr Adefarakan?
Mr Adefarakan: No, sir. No, no. No, Senior Member.
Member: Back to you, Mr Burke.’[80]
[80] Transcript, page 10, lines 1-44.
and
‘Mr Burke: There were other times where you acted in a threatening way towards [Ms S], yes?
Mr Adefarakan: Yes, sir.
Mr Burke: How many times did you threaten her?
Mr Adefarakan: I think it’s – I think it was ‑ ‑ ‑
Mr Burke: Can you remember how many times it was?
Mr Adefarakan: To be honest, I can’t remember, though I know for sure it’s not just only once.
Mr Burke: Are you able to estimate how many times? Would it have been more than five, more than ten?
Mr Adefarakan: I think it’s – I think it was just about four or five times. I think about.
Mr Burke: Now your relationship with [Ms S] was, ‘toxic,’ is the way you described it in submissions you’ve provided in the past?
Mr Adefarakan: Yes. Yes, sir.
Mr Burke: Do you still consider that that was the case? That it was a toxic relationship?
Mr Adefarakan: Yes, it was toxic. For her, it was a toxic one.
Mr Burke: Now your next partner after you ended things with [Ms S] was a woman called [Ms G], yes?
Mr Adefarakan: Yes.
Mr Burke: When did your relationship with [Ms G] begin?
Mr Adefarakan: It started 2019. Ending of 2019, sir.
Mr Burke: Was your relationship with [Ms G] toxic as well?
Mr Adefarakan: Yes. Yes, sir.
Mr Burke: Mr Adefarakan, could I ask you to please go to page 16 of the – the booklet that just says, ‘Tender bundle,’ on the front? So not the one your lawyer’s provided?
Mr Adefarakan: Yes, sir. I’ve got it, sir.
Mr Burke: So Mr Adefarakan, this New South Wales police fact sheet was provided by the Burwood Local Court in relation to your offence for assault occasioning actual bodily harm?
Mr Adefarakan: Yes. Yes, sir.
Mr Burke: Now, Mr Adefarakan, the fact sheet says that in the evening of 30 September in 2020 at [Ms G] place in Leichardt, Sydney, you and her had an argument about your request to [Ms G] for her to assist you financially. You’d agree that that happened, yes?
Mr Adefarakan: Yes, sir. Yes, sir.
Mr Burke: Now, why were you asking [Ms G] to assist you financially?
Mr Adefarakan: Out of honesty, I had an addiction problem at the time. I was – I had an addiction problem. I was gambling. I was – I was gambling, I was smoking, and, yes.’[81]
[81] Transcript, page 10, line 47 – page 11, line 42.
and
‘Mr Burke: Which one is it? You’ve previously said that you needed money, and that that was the reason that you were asking [Ms G] for money, because you needed to support family overseas. And now you’re just saying out of the blue that you had an addiction. What’s ‑ ‑ ‑?
Mr Adefarakan: Yes, I had an ‑ ‑ ‑
Mr Burke: What’s the reason that you were asking [Ms G] for money?
Mr Adefarakan: The reason why I was asking [Ms G] for money at the time was because I have one of my nephew in Lagos that I was helping for school fees, but then I – I – but then at the time then I was gambling my whole money. I was supposed to support my – my nephew for his school fees there. I just used my money to gamble and I was trying to rely on her and I asked her for money.’[82]
[82] Transcript, page 12, lines 1-12.
and
‘Mr Burke: And Mr Adefarakan, the fact sheet says that you then returned home from your nightshift between 7.30 to 7.45am in the morning?
Mr Adefarakan: Yes, sir.
Mr Burke: And Mr Adefarakan, you were returning home from working in disability support at the time, so you weren’t intoxicated when you returned home, were you?
Mr Adefarakan: No, I wasn’t – I wasn’t intoxicated.
Mr Burke: Mr Adefarakan, the fact sheet goes on to say that when you returned home in the morning your argument with [Ms G] continued, and that she said you were ungrateful, which upset you. Mr Adefarakan, the fact sheet says that you then pushed her in the chest area, and [Ms G] fell into a bathtub. Do you accept that you did that to [Ms G]?
Mr Adefarakan: Yes, sir. I did, sir.
Mr Burke: And Mr Adefarakan, while [Ms G] was in the bathtub, you proceeded to punch her a number of times in the stomach, yes?
Mr Adefarakan: Yes, sir.
Mr Burke: And at the time [Ms G] was three weeks’ pregnant with – was three weeks’ pregnant and it was your child that she was pregnant with, yes?
Mr Adefarakan: Yes, sir. But we both deny – we were not aware at the same time.
Mr Burke: Why did you punch her repeatedly in the stomach?
Mr Adefarakan: I was very impulsive in my character at the time. I was a very bitter man.
Mr Burke: When [Ms G] stood up, you slapped her repeatedly in the face, yes?
Mr Adefarakan: Yes, sir. I did, sir.’[83]
[83] Transcript, page 12, lines 21-45.
and
‘Mr Burke: Just one moment, Mr Adefarakan. Now, Mr Adefarakan, you’ve previously rejected that you punched [Ms G] in the stomach repeatedly, and that you slapped her in the face repeatedly. You’ve previously only accepted that you slapped [Ms G] in the face once and pushed her into the bathtub. That’s true, isn’t it?
Mr Adefarakan: Yes, sir.
Mr Burke: Mr Adefarakan, if you could please go to page 57 of the Applicant’s tender bundle, or the document you provided – your lawyers provided?
Mr Adefarakan: Yes.
Mr Burke: So what I’m referring to on page 57 is still in the statement that was annexed to your statutory declaration that’s been given to the tribunal. And on pages 57 and 58 it includes your response to the fact sheet that was provided to you by the government about this incident. In it you don’t take responsibility for punching [Ms G] in the stomach or slapping her repeatedly in the face. You only refer to pushing her in the bath and slapping her on the cheek. Mr Adefarakan, I suggest to you that when you provided this you were still not taking full responsibility for the extent of what you did to [Ms G] that day. Do you have anything to say about that? Do you have anything to say about that, Mr Adefarakan?
Mr Adefarakan: Nothing to say. I didn’t take – I didn’t take full responsibility.
Mr Burke: Mr Adefarakan, I suggest to you that you’re accepting the full extent of what you did to [Ms G] here today because you think it will help you get your visa back. That’s the only reason?
Mr Adefarakan: No. It’s because I’ve gotten a stage in my life whereby I need to be accountable for my actions.’[84]
[84] Transcript, page 13, lines 4-28.
and
‘Mr Burke: This is a New South Wales police fact sheet for an incident from 30 August 2022. So less than a month after you were issued with that domestic violence order. The fact sheet says that at 6 pm on 30 August 2022, got a phone call from you where you were accusing [Ms H] of speaking badly of you. Do you accept that you called [Ms H] and said that?
Mr Adefarakan: Yes, sir.
Mr Burke: And what did you hear that [Ms H] was saying about you? Mr Adefarakan, this was in August last year. Surely you can remember what you’re accusing [Ms H] of when you called her. What were you accusing her of saying about you? Mr Adefarakan, do you have a response to my question?
Mr Adefarakan: No, sir. No, sir.
Mr Burke: Mr Adefarakan, after your phone call with [Ms H], you went to her house. Didn’t you?
Mr Adefarakan: Yes, I did.
Mr Burke: And when you went to that house, you knew that you were breaking the domestic violence order that was issued. Yes?
Mr Adefarakan: Yes.
Mr Burke: You were angry with [Ms H] when you went to her house. Weren’t you?
Mr Adefarakan: Yes. Yes.
Mr Burke: You were angry that she went to the police about what you had done earlier in the month, weren’t you?
Mr Adefarakan: Yes.
Member: You might need to elaborate on that, Mr Burke: earlier in the month.
Mr Burke: You were angry, Mr Adefarakan, about [Ms H] going to the police, which resulted in you being arrested on 5 August. Weren’t you?
Mr Adefarakan: Yes.
Mr Burke: Mr Adefarakan, when you got to [Ms H]’s house, you said to her that you just wanted to say one thing and then that you would leave. And then you were let inside by [Ms H]. Yes?
Mr Adefarakan: Yes, sir.
Mr Burke: When you were inside the house, you said to [Ms H], I could kill you and no one would know. You said that, didn’t you?
Mr Adefarakan: Yes. I did.
Mr Burke: You were trying to make [Ms H] scared of you. Weren’t you?
Mr Adefarakan: Yes.
Mr Burke: Mr Adefarakan, you proceed to slap [Ms H] to the left side of the face, which caused to fall onto the floor. You did that, didn’t you?
Mr Adefarakan: Yes.
Mr Burke: And Mr Adefarakan, you also held [Ms H]’s head to the floor to prevent her from screaming. You did that. Didn’t you?
Mr Adefarakan: Yes. Yes, a few things I remember.
Mr Burke: Now, [Ms H] ran from you to the bathroom and locked the door of the bathroom. But you broke into the bathroom to get to her. Didn’t you?
Mr Adefarakan: I ‑ ‑ ‑
Mr Burke: Did you, Mr Adefarakan?
Mr Adefarakan: I didn’t – I didn’t break – I didn’t break into the bathroom. I opened the bathroom. I opened the – I didn’t break the door.
Mr Burke: Mr Adefarakan, it actually states that once [Ms H] is inside the bathroom, she closed the door and locked it. And she was ringing 000 to get the assistance of the police. It then says that you began to tamper with the door and force entry into the bathroom?
Mr Adefarakan: Yes.
Mr Burke: Now, that’s what it’s in the (indistinct). And it’s ‑ ‑ ‑?
Mr Adefarakan: Yes. I remember now.
Mr Burke: It’s based on the version that was given by [Ms H]. So you did, in fact, break into the bathroom after she locked it. Didn’t you?
Mr Adefarakan: Yes, I went into the bathroom. Yes. Yes.
Mr Burke: And when you said earlier that you didn’t break into the bathroom, you were just trying to make it seem as though what you did on that day wasn’t as what it actually was. Weren’t you?
Mr Adefarakan: No. I thought – I thought maybe I – maybe I broke the door to enter. I didn’t break the door; I opened the door.
Mr Burke: Why did you proceed to go after [Ms H] when she went into the bathroom and locked herself. Why didn’t you leave when she did that?
Mr Adefarakan: I was very – I was very impulsive. I wasn’t thinking there. I didn’t know what I was doing at the time. I was very obsessive.
Mr Burke: You were trying to stop her from calling the police. Weren’t you?
Mr Adefarakan: Yes. Yes. Yes, sir.
Mr Burke: You knew by then you’d probably be arrested and put in prison for your domestic violence offending. Didn’t you?
Mr Adefarakan: Yes, sir.
Mr Burke: And you also knew that it could result in you being deported if you were arrested and charged again?
Mr Adefarakan: Yes, sir.
Mr Burke: Mr Adefarakan, when you made your way into the bathroom, you’ve forcefully held [Ms H] to the wall with both of your hands on her shoulders. You did that, didn’t you?
Mr Adefarakan: Yes, sir.
Mr Burke: Now, Mr Adefarakan, you clearly have a problem dealing with pressure in your domestic relationships. Don’t you?
Mr Adefarakan: Yes. I have a problem.
Mr Burke: In your domestic relationships in Australia, you’ve repeatedly lashed out with threats of violence to assert yourself when things don’t go the way you like. That’s true, isn’t it?
Mr Adefarakan: Yes, sir.
Mr Burke: That’s the main reason you’ve been violent to your domestic partners in Australia repeatedly. That you feel the need to use violence and threats to get your way when things aren’t going right?
Mr Adefarakan: Yes, sir. That’s true.
Mr Burke: And the main reason that you’ve been repeatedly committing domestic violence offences with all your partners in Australia, is not because of substance abuse issues or an abuse – abusive incident that occurred when you were a child. It’s because of that, that you feel the need to use violence and threats to get what you want in your relationships. Do you have anything to say about that?
Mr Adefarakan: I was affected a lot. I was affected a lot as a kid. I was very, very affected a lot as a kid, and there’s a lot I was going through, but I didn’t open up to anyone. And the minute I started – when I went to gaol, that was when I started realising how much people I’ve hurt and, yes. And I’m extremely – I’m remorseful for my actions.[85]
[85] Transcript, page 18, lines 4 – page 20, line 21.
Behaviour under stress and Abuse Claims
‘Mr Burke: Mr Adefarakan, it’s the case, isn’t it, that when you were sentenced in 2020 – so back then when you were sentenced to a community corrections order – as part of the sentencing evidence was provided about this claim that you’ve made about an abusive incident when you were a child. That’s true, isn’t it?
Mr Adefarakan: Yes, sir.
Mr Burke: That incident, and your claims in relation to it, were considered by the Court as part of its process of sentencing you to a community corrections order. You’d agree to that, wouldn’t you?
Mr Adefarakan: Yes, sir. I did, yes, sir.
Mr Burke: So you made this claim in association with your offending back in 2020. It seems to have been taken into consideration by the court. But despite you saying it back then, you still went on to commit further domestic violence in 2022. You were given the opportunity back then to address any impact it was having on your offending, but you clearly didn’t do it. Do you have anything to say about that?
Mr Adefarakan: I – for my 2020 – for my 2020 and 2022, I’m accountable for everything. I – I had a lot going on in my life. I lost my client that I was working with. That affected me. I didn’t deal with it. A lot happened to me. I started – I got into an addiction of smoking and drinking. That affected me.’[86]
[86] Transcript, page 20, lines 12-42.
Remorse
‘Mr Burke: Mr Adefarakan, in this letter you wrote: ‘I’m writing this letter to express my sincere remorse for my irresponsible and highly disrespectful behaviour. I accept full responsibility and there’s no excuse for my behaviour.’ And then in the last paragraph you also state that: ‘I hope to use this entire experience in a positive way to better myself.’ And then in the last sentence you say: ‘I will continue to engage with my counsellors and will use this as a positive catalyst to change myself for the better’?
Mr Adefarakan: Yes.
Mr Burke: Now Mr Adefarakan, after saying those things – so that you took full responsibility for your actions and that you’d use the experience to change for the better, you didn’t change. You just went on to commit more domestic violence, didn’t you?
Mr Adefarakan: Yes, I did.
Mr Burke: Mr Adefarakan, what you wrote to the court in this statement didn’t really mean anything, did it? You saying that you took full responsibility and that you were committed to changing, that didn’t mean anything?
Mr Adefarakan: It’s mean that – it’s ‑ ‑ ‑
Mr Burke: Do you have anything to say about that?
Mr Adefarakan: No. No, sir.
Mr Burke: So Mr Adefarakan, why should you be believed when you’re saying the same things to this tribunal? That you take full responsibility and that you’ve changed? You’ve said it before and ‑ ‑ ‑?
Mr Adefarakan: I’ve never ‑ ‑ ‑
Mr Burke: - - - you just went on to commit further offences?
Mr Adefarakan: Yes. Yes, sir. Me going to gaol has changed me a lot. I use – I use while I was incarcerated to reflect on my past behaviour. Even when here in detention centre, I’ve been honest with myself. I’ve been honest with myself. I’ve been proactive. I’ve been very positive. And I’m a changed man now. I acted – I was very, very impulsive with my character. I was a very selfish man. I don’t think before I react.’[87]
[87] Transcript, page 14, lines 13 – 43.
And
‘Mr Burke: And you weren’t put in prison at the time, despite how violent you were to [Ms G]. Now, you’d agree, wouldn’t you, that the court gave you a chance by not sending you to prison on that occasion?
Mr Adefarakan: Yes, sir.
Mr Burke: As part of the community corrections order, Mr Adefarakan, you were supposed to do 200 hours of community service work. You recall that, yes?
Mr Adefarakan: Yes, sir. Yes, sir.
Mr Burke: But you only did 24 and a half hours of the 200 hours, yes?
Mr Adefarakan: Yes, sir.
Mr Burke: So you’d accept, wouldn’t you, that you didn’t really – well you didn’t at all – use the opportunity to change and reform that was given to you by the court, because you didn’t bother with the community service work that you were required to do. And then you also went on to commit further domestic violence offences. Do you accept that?
Mr Adefarakan: Yes. Yes, sir.
Mr Burke: Mr Adefarakan, your next partner was [Ms H], yes?
Mr Adefarakan: Yes, sir.
Mr Burke: And you had an intimate relationship with [Ms H] that began in 2021, yes?
Mr Adefarakan: It began – yes, sir. Yes, sir.
Mr Burke: Mr Adefarakan, I’m going to ask you questions arising from factsheets for two incidents involving [Ms H]. The first one appears at page 47 of the tender bundle?
Mr Adefarakan: Page what? I’m sorry, sir?
Member: Page 47 of the tender bundle?
Mr Adefarakan: Yes, sir. I got it.
Mr Burke: Thank you. Mr Adefarakan, this fact sheet pertains to an incident that occurred at 11 pm on 30 July 2022. And at the time, you were aware that you were still under the community corrections order for a few things that – yes?
Mr Adefarakan: Yes, sir.
Mr Burke: Now Mr Adefarakan, the fact sheet states that you arrived home with [Ms H] after a party and that you had an argument with [Ms H] about your behaviour due to being intoxicated. The fact sheet states that you grabbed hold of [Ms H]’s left shoulder and pulled her backwards. Do you accept that you did that?
Mr Adefarakan: Yes, sir.’[88]
[88] Transcript, page 15, lines 1- 38.
and
‘Member: Now just a moment ago, about around 12.07 our time you answered Mr Burke and you said that you had thoroughly rehabilitated yourself in prison. What do you mean by, ‘thoroughly rehabilitate’?
Mr Adefarakan: Thank you, Your Honour. I thoroughly rehabilitated myself by firstly I was able to forgive myself, to let go. And also be honest with myself. I started taking steps in prison, where I thought I’d enrol in a course to rehabilitate myself. And even when I got to detention centre, I started doing a lot of courses to better myself, to better my career. So that I can be useful for the community and for my daughter.
Member: Okay. Throughout this morning in response to the questions from Mr Burke you’ve said that you are remorseful. What do you understand being remorseful to mean? What do you by being remorseful?
Mr Adefarakan: Remorseful means – firstly it’s by you taking accountability for your action. Secondly is to be very sorry for the people you’ve hurt, you’ve put in pain. And also to – to give forgiveness. Like very remorseful it means to – for your actions that have done in the past. Like for forgiveness.’[89]
[89] Transcript, page 27, lines 13-14.
Acceptance of Responsibility
‘Mr Burke: Mr Adefarakan, I suggest to you that you’ve repeatedly deflected blame away from yourself in relation to the cause of your offending to things like substance abuse, your reference just then to a client that you previously worked with passing away, and substance use as being the main contributors to your offending?
Mr Adefarakan: Yes, sir.
Mr Burke: That shows, Mr Adefarakan, that you’re still not truly taking responsibility for the main cause of your offending, which is your inability to deal with domestic relationship pressures without resorting to violence and threats when you don’t get your way?
Mr Adefarakan: I have – I have thoroughly rehabilitated myself. I use while I was incarcerated last year, and even when in detention centre, to rehabilitate myself for my daughter and for the community to be a better father for my daughters. And I’ve been honest with myself. I don’t smoke anymore; I don’t drink anymore. I’ve been eating healthy. I was very, very impulsive with my character. I was selfish, I was a narcissist. All I’m asking for is forgiveness, a second chance.[90]
[90] Transcript, page 20, line 44 – page 21, line 13.
Awareness of risk of deportation
‘Mr Burke: Now, Mr Adefarakan, you were arrested after these incidents on 5 August 2022. That’s true, isn’t it?
Mr Adefarakan: Yes. Yes, sir.
Mr Burke: And you said to the police that if you were charged, you may be deported back home to Nigeria, didn’t you?
Mr Adefarakan: Yes, sir.
Mr Burke: So Mr Adefarakan, you were well aware at that time that if you committed further domestic violence or if you were charged with offences for domestic violence that your visa could be cancelled and you’d be deported back to Nigeria. Yes?
Mr Adefarakan: Yes, sir.
Mr Burke: But despite knowing that to be the case you went on to commit further domestic violence, despite knowing that it could result in you being deported?
Mr Adefarakan: Yes, I (indistinct).
Member: Sorry. Mr Adefarakan, would you like a moment and a glass of water? Apologies, Mr Burke. I just thought it was appropriate at this point.
Mr Burke: Not a problem, Member.
Member: Would you like the question repeated, Mr Adefarakan?
Mr Adefarakan: Yes, sir.
Member: Mr Burke.
Mr Burke: Mr Adefarakan, you were clearly aware that further domestic violence offending could result in you being deported to Nigeria. But you went on to commit further domestic violence offending in 2022. You agree with that, don’t you?
Mr Adefarakan: Yes, sir. Yes.
Mr Burke: So Mr Adefarakan, your experience in prison and in immigration detention and having a visa cancelled is not what made you realise that domestic violence offending could result in you being deported. You were aware of that before all of that happened. But you still went on to commit domestic violence offences. Do you have anything to say about that?
Mr Adefarakan: When I go – when I was incarcerated, then I really changed my life a lot. Because I was able to sit back and reflect on my very poor behaviour. I’m in a chamber now. ‘[91]
[91] Transcript, page 16, lines 8 – 42.
Financial support for Minor Children
‘Mr Burke: That document is a letter from Services Australia to you, which is dated 11 August 2023, and it states that Services Australia has accepted a request that both you and Ms S[Ms S] will manage the transfer of child support for your child without their active involvement?
Mr Adefarakan: Yes, sir.
Mr Burke: So in relation to that, Mr Adefarakan, are you currently providing any financial support in relation to your child?
Mr Adefarakan: Yes, sir.
Mr Burke: Now you’re currently detained and have been since March. How are you obtaining the finances to be able to provide financial support?
Mr Adefarakan: My friends and family have been supporting me since I go to detention.
Mr Burke: And it’s mainly your mother who is providing you with financial support, isn’t it?
Mr Adefarakan: Yes, sir.
Mr Burke: Could you please repeat that?
Mr Adefarakan: Yes, sir. Yes.
Mr Burke: Your mother would be able to continue to provide financial support for the purposes of your child up until you get yourself on your feet and established in Nigeria if you had to return there. That’s true, isn’t it?
Mr Adefarakan: Yes, it’s true, but it’s going to be very hard on her.’[92]
[92] Transcript, page 21, lines 17 – 37.
Employment
‘Mr Burke: Did you only work at disability support, or did you work in other jobs?
Mr Adefarakan: I – I work in – I work with different jobs. (Indistinct).
Mr Burke: Yes?
Mr Adefarakan: And also ‑ ‑ ‑
Mr Burke: What other jobs?
Mr Adefarakan: I also – I also did real estate in the past. I was a sales assistant in the past.
Mr Burke: Yes?
Mr Adefarakan: And I also work with Showtime Marketing company. I work with Showtime marketing company. And, yes, that’s it, sir. That’s it, Senior Member.’[93]
Ms S’s evidence
[93] Transcript, page 22, lines 8 – 18.
Examination in Chief

Ms S affirmed her 24 May 2023 statement.[94]
[94] Exhibit 4: Applicant’s Supplementary Bundle pages 1 -3.
Ms S then gave the following answers in relation to the issues noted below:
‘Ms Mamarot {Referencing the witness’ 24 May statement]: And you’re talking about your daughter and you say it has affected her in many ways and even though Adebayo [i.e. the Applicant] does everything to provide her with emotional support over the phone on a daily basis. Do you see that sentence?
Ms S: Yes. So he does, so – I’m not – I’m not sure if you’re aware, so Adebayo was there with his daughter and my stepdaughter and ever since – my daughter know where he’s located at the moment. So she only calls him by – he video calls her, she video calls him. And not only that, my other daughter, she goes with her father. So she feels the left-out connection from the father. But I’m – not only that, I lost my father at 10 years old so I know how it feels when you don’t have a father in your life, especially being from an Aboriginal background. Not only that, she needs her father with her and I need him there for financial support, everything – emotional support, to help me with her education and guide her through her future.
Ms Mamarot: Thank you?
Ms S: Did I answer that question, or
Ms Mamarot: Yes, yes. I just wanted to ask you a bit more about that. So in that sentence you say that he has communication with her on a daily basis. Is that still the case?
Ms S: Yes, he does have communication. So he’s even bought her a phone. So as you’re aware, he’s located at the moment – he’s currently bought her a phone, so he contacts her via video call and calls and text messages. So that’s when she’s not at school and when she’s not asleep and they don’t talk, so yes.
Ms Mamarot: Okay. So since – is it true that since he’s been in detention, he’s been contacting her on a regular basis?
Ms S: So he’s been contacting her on a regular basis: morning and night. So it depends on – sometimes she calls him too, but because of the hour difference over – is it Perth, sorry? Over that way, there’s hours difference too. So sometimes she misses his call, but he will make sure he calls her back when she gets home.
Ms Mamarot: Okay. Thank you. And in the – on that paper, if I can just – yes?
Ms S: Yes.
Ms Mamarot: Sorry. On that page in the first paragraph ‑ ‑ ‑?
Ms S: Yes.
Ms Mamarot: You write that Adebayo [i.e. the Applicant] is a great father which – and he plays a good key role by supporting ‘our daughter’s physical, emotional and financial wellbeing’. And then you go onto say, ‘I’ve come to the most overwhelming key to a child’s success is the positive involvement of the mother and the father.’ I just wanted you to explain to the tribunal what you mean about positive involvement as mother and father?
Ms S: So prior to the situation, so when we were together for the five years he was the best dad. Everything. Prior to that, after 2016 he opened up about what happened to him as a child – in his childhood trauma, which you should be aware about. And he after – we used to go to church together. He was a great father provider, financially, everything. So as a father should. And he needs to go to church every Sunday. I think it’s King Port. Yes, we used to go to church, so it was that. Up until then, I think that the sexual – the trauma, childhood trauma, got to him. He told me in 2016. He told me in 2016 and then he’s – I reckon he’s self-medicated by using drugs and alcohol. And then in 2017 he reacted with me. I’m aware that all of his criminal behaviours and violence against women, but I believe since he went to incarceration, he has learnt a lot and he – I know he – he’s willing to do better for himself. Not for himself, but his daughter, to live a better future. And not only that, I believe that he’s gave his heart back to the Lord. And he’s going to seek professional help for his trauma and everything. And from his drug and alcohol thing. I know what he’s been through. I’m aware of what he’s done to his previous girlfriends as well, too. But I believe – I just hope you can put it in to stay in Australia for my daughter’s sake.[95]
[95] Transcript, page 27, line 23 – page 28, line 38.
and
‘Ms Mamarot: And in your statement in your second paragraph, you say, ‘I also have an elder daughter named [Child J]?
Ms S: [Child J].
Ms Mamarot: [Child J]?
Ms S: Yes.
Ms Mamarot: Which Adebayo’s [i.e. the Applicant] stepped up to be the father and a good role model. Yes?
Ms S: When was – yes. When was – yes, so when we was – when we get into was, I think, five at the time. Which he used to drop her off to school, I used to work out Bankstown, meant to help at the time as administration. So he stepped up to be a father, good role model, provider for and [Child A]. Always cook my dairy and food because I can’t cook their culture free, because I come from an Aboriginal background. I don’t make their native food, which was good because[Child J]’s father’s from Nigeria as well. So that’s another thing of why – I mean, I want to explain the identity. I can’t give her her Nigerian identity; I only can give her Aboriginal identity as well too. But in so, back to [Child J], he was there for [Child J]. Which they still communicate now. He talks to her every day. He sends her stuff and that, so – yes. It’s just – I think – I think, like, he has to beat his demon. Which I believe, in the last 12 months when he got incarcerated it’s opened his eyes more and he’s more – I don’t know. He’s just more positive on the outlook on the future and he doesn’t want to go back that way. And he knows he messed up. He knows that and I’m aware of that. And what else is I think my daughters need, like, especially [Child A] . She needs her father, physically with him. So because I’m doing support work as well so I want to do night shifts, because I’ve been off work for the last three years and I’m in financial hardship as well. So if he can get out and support [Child A] and take her on weekends, I’m willing to speak toughly with him as well. So she can have that connection with her father and he can give her the identity of the Nigerian background, culture.’[96]
[96] Transcript, page 29, lines 1 – 31.
and
‘Mr Burke: Thank you. I have two – there’s two points I want to ask about from that. So when you say, ‘I have personally seen his progress since this incident, which was his last incident or criminal charge/conviction,’ what incident are you referring to?
Ms S: So is that the one with [Child J] So when he’s last convicted. So I’m aware of that and then he got incarcerated on the August and then ever since that, ever since he got incarcerated he has been positive and rebuild patience – not taking alcohol and drugs. So I believe I’ve known Adebayo [i.e. the Applicant] for nearly eight years now. Nearly eight – yes. Eight or nine years. He’s in the last three, four years there – it’s been a journey which is now about rehabilitation and off the drugs and off the alcohol. I believe the person, I believe – man now. And I believe he’s here. I believe that conviction helped him stay to connect with his daughter. Just give him another chance, that’s all I’m just asking. Just considering for my daughter’s sake and my sake. I know how it feels when I don’t have him. I know what he’s done, previous. But I believe incarceration has made him a different man today. I believe it, and it saves his heart to (indistinct). He’s more positive and everything. So I don’t know how you want me to say it, and say it, but seeing him three, four years ago? Yes, I wouldn’t have this communication with him, talking to him, because of what he was in – in that – yes. I don’t know what state and that. But ever since he’s been past that, he’s come out, he’s been to rehabilitation. I can see – I believe in myself – I see it different. It’s not only that but he’s the father of a kid too. So my daughter needs her father. Mentally, you know, physically here with her to support her and guide her through her future. I know how it feels.[97]
[97] Transcript, page 32, lines 40 – page 33, line 18.
and
‘Mr Burke: Could you please explain what you understand of Mr Adefarakan’s further incidents that resulted in the police being involved?
Ms S: So in the police, so – yes. I understand everything, what he did. Physically, emotionally and everything, so I understand. I don’t want to go down that lane, because it just brings – it brings up my issues and the past. So like I said, when he got incarcerated, he’s actually a changed man. I don’t know. It’s up to you, if you want to give him – revoke his PR. But as I say, I believe he’s a changed man. He’s come a long way. Yes, he’d been in – in crime. He did his, you know, his time in incarceration. But I believe my daughter needs her father too. And I believe that he’s a different man. And I believe he’s – he will provide, which he always provided for his family. No matter the situation. And not only that, he comes from a very – very Christian background from his mother’s side. So like I said, he’s had to fix his trauma. His childhood trauma. That’s where triggers everything, I believe. Because – yes. I don’t know. Like, I don’t know what you want me to say. All I just believe, my daughter needs her father and so she can have that bond connection. ‘[98]
[98] Transcript, page 33 lines 31 – page 34, line 2.
and
‘Mr Burke: That’s okay. That’s okay. In relation to your concerns about your daughter’s well-being, have you taken your daughter to the doctor in relation to those concerns?
Ms S: To the doctor? As if there – I’m an Aboriginal person, so I believe in connective culture and so we go up to heal. Our way is healing. I’ll go and connect them to culture and connect them to culture and cult – country. So I have – I have heard of mental effects and everything, which she has difficult. But when – if I do have Adebayo’s out, it can help me and we can be on the journey together to build our daughter’s mental capacity and education, her well-being and everything.
Mr Burke: Ms S, in relation to your elder daughter, I understand that she still has a good relationship with her own biological father? That’s true, isn’t it?
Ms S: Yes, she does. And she – she understands him, like, what connection to her Nigerian heritage and her culture through her father. And adding one region, I have that connection and culture because her father is longer here with her. And if you can consider that, consider his revocation for his application to be connected back to his daughter, connected back to the community. I believe he’s – I know what he’s been through. But I believe he’s a different man.’[99]
[99] Transcript, page 34, lines 26 – 43.
and
Mr Burke: Thank you. So Ms S, my question was that your older daughter, she still has a good relationship with her own biological father. And I understand your response was yes. And if you could please just wait until I ask a question for you before responding. My next question is, your older daughter’s biological father, he still provides daily care and support to your older daughter. Doesn’t he?
Ms S: So as – as you’re aware, he takes her every second weekend. So – and he sends her $40 a week. And he does have a relationship with his daughter. And yes, does do that. Did I answer your question?’[100]
[100] Transcript, page 35, lines 12 – 20.
and
‘Mr Burke: So you said that you made the application to the court because you were the full carer at the time ‑ ‑ ‑?
Ms S: Yes, and he had ‑ ‑ ‑
Mr Burke: I understand ‑ ‑ ‑?
Ms S: He’s had much better. Yes.
Mr Burke: I understand from that, Ms S, that there was a period where you were the only one providing parental care to your younger daughter. Is that correct?
Ms S: Because she lived with me full-on. So he would use to come, pick her – like, ring up unexpected at the time. When he’s – I don’t think you’re getting me. So when he was on drugs and alcohol, he was a different person. He wasn’t thinking straight. Like, when you’re on alcohol, you don’t think straight. But he will just pop up, rock up, you know what I mean? So one time he had been had her and then after the seven days, I actually – I’ll get the recovery order from the family court to get her back. Because he would not bring her back.’[101]
and
‘Mr Burke: Thank you. So Ms S, you referred to applying for a recovery order after your daughter was with Mr Adefarakan for seven days. Could you please explain why you felt the need to go and apply for a recovery order? Was it that you were concerned about your daughter being with Mr Adefarakan?
Ms S: So my concern was, I was – yes. At the time, he was on drugs and alcohol. He was with Ms G at the time. Not only that, I didn’t know then that me – Adebayo [i.e. the Applicant] had AVOs against each other, which – that’s why I couldn’t go remember and pick her up at the time. He called the police on me, which it all get dropped out of court and everything.’ [102]
and in re-examination
‘Ms Mamarot: My question is, are you not concerned that that could happen again in the future?
Ms S: I believe it’s not going to happen. I believe ever since Prince – Adebayo’s [i.e. the Applicant] been incarcerated, he’s been through rehabilitation, he’s been talking to me nicely. He’s positive, he believes in the Lord again. He’s not drinking, not – no alcohol. And he’s communicating with his daughter, so that makes her happy. Like I said before, it’s up to you that then – but I didn’t have a father in my life, so I know how it feels when you don’t have a father. I didn’t have a choice. God took him. But – when it was his time to go. But he’s – you’ve got a choice for – to give Prince a chance to help raise me and our daughter together. I’d be more happy. But as again, it’s up to you, but I know how it feels to not have a father and when [Child W] talks to her father, she gets this happy feeling. Like it’s a different feeling. Like all you just want for your daughter is to be loved. And the missing part is her father not being with her physically.’[103]
THE TRIBUNAL’S ASSESSMENT OF THE WITNESSES
[101] Transcript, page 36, lines 15 – 29.
[102] Transcript, page 36, line 45 – page 37, line 6.
[103] Transcript, page 38, lines 32 – 47.
The Tribunal observed Mr Adefarakan as he gave evidence and considers that he is not entirely believable or credible as a witness. At times he sought to minimise the nature of his offending. At other times he appeared to give rote answers along the lines that he is accountable or that he is rehabilitated.
In particular, while evincing a level of openness regarding his offending, rehabilitation and relationships with his wife and daughter, he sought to qualify or dispute elements of his domestic offending. There is an anomaly between his claim in cross-examination that he was not aware of his former wife’s protection order application[104] and the documentary evidence that he was served with a copy of the protection order at 3:55 pm on 28 September 2021.[105]
[104] Transcript, page 32, lines 45-46.
[105] Exhibit 8: Respondent’s Supplementary Materials 3, page 88.
Ms S, as a proud Dunghutti woman, was an extremely effective witness. She gave her evidence forthrightly and honestly.
However, her evidence that she could take on more lucrative night shifts and earn more if Mr Adefarakan resumed living with her and their daughter after the visa cancellation decision is set aside is suggestive of a degree of self-interest when addressing a future state of affairs involving Mr Adefarakan.[106]
[106] Transcript, page 29, lines 26 – 29.
PRIMARY CONSIDERATIONS
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
When considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Australian Government is committed to protecting the Australian community from harm because of criminal activity or other serious conduct by non-citizens.
Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens with the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(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.
Tribunal’s consideration: The nature and seriousness of Mr Adefarakan’s conduct
Paragraph 8.1.1(1)
This paragraph states that, in considering the nature and seriousness of the non-citizen’s ‘criminal offending or other conduct to date’, decision-makers ‘must have regard to the following’:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)    acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Tribunal has considered both parties’ respective submissions about Paragraph 8.1.1 of the Direction.
In summary, Ms Mamarot submitted the following:
(a)She conceded that should Mr Adefarakan offend in a similar manner in future the harm to the Australian community could be considered as very serious.
(b)She conceded that this consideration weighs against the revocation of the visa cancellation.
(c)She contends that on the evidence the likelihood of Mr Adefarakan engaging in any further criminal conduct is low and this risk is not an unacceptable risk to the Australian community, considering his assertions of remorse and his recent rehabilitation efforts.

In summary, Mr Burke submitted the following:
(a)Mr Adefarakan’s offending conduct, in particular his lengthy history of violent offending and domestic violence offences and the fact that he continued to offend after receiving a suspended sentence, implies that the Tribunal should find that his criminal offending is very serious.
(b)His assaults on his three former partners including in front of a seven-year-old child, destruction of property, and threatening behaviour are violent crimes against women and constitute family violence. Crimes against former partners are viewed very seriously by the Australian Government and the Australian community (paragraph 8.1.1(1)(a)(i)-(iii) of the Direction).
(c)His criminal history indicates frequent offending, with serious family violence offending from 2017 onwards (paragraph 8.1.1(1)(d) of the Direction). This behaviour must be seen as cumulatively having had a deleterious impact on the Australian community (paragraph 8.1.1(1)(e) of the Direction).
(d)He has been sentenced to terms of imprisonment for his offending (paragraph 8.1. 1(1)(c) of the Direction). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy. Where a Court has sentenced an offender to a term of custodial imprisonment, this should be viewed as a reflection of the objective seriousness of the offences involved.
(e)He remains a real and ongoing risk of reoffending. Prior to incarceration and detention, he reoffended despite being the subject of a Community Corrections Order and an ADVO, indicating a sustained disregard for law enforcement and an unwillingness to avail himself of opportunities to rehabilitate while in the community (paragraph 8.1.2(2)(b)(i) of the Direction).
(f)The Respondent submits that this primary consideration weighs heavily against revocation.
Paragraphs 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii)
These paragraphs require the Tribunal, when considering this matter, to have regard to, and acknowledge that, violent and/or sexual crimes, crimes of a violent nature against women and acts of family violence are viewed very seriously.
The Tribunal concludes, having considered the evidence of his criminal conduct[107], that Mr Adefarakan’s actions both constitute violent crimes and crimes of a violent nature against women.
[107] G7, pages 37 – 39.
An analysis of whether Mr Adefarakan’s actions also constituted family violence is conducted below under Primary Consideration 2.
Paragraphs 8.1.1(1)(b)(i), (ii), (iii) & (iv)
These paragraphs are not relevant. The Tribunal did not see any evidence of crimes or conduct committed by Mr Adefarakan addressed by these paragraphs.
Paragraph 8.1.1(1)(c)
In applying this paragraph, the Tribunal is precluded from considering sentences imposed on Mr Adefarakan for:
(a)any violent offending that he may have committed against women or children (Paragraph 8.1.1(a)(ii)),
(b)acts of family violence (Paragraph 8.1.1(a)(iii)); and
(c)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage (Paragraph 8.1.1(b)(i)).
Analysis of Mr Adefarakan’s National Criminal History Check[108] indicates that he received a sentence on 9 August 2017 of a 12 month behaviour bond.
[108] G7.
As the Tribunal has found above that Mr Adefarakan has only committed crimes of a violent nature against women, it considers that this paragraph carries a neutral weight.
Paragraph 8.1.1(1)(d)
This paragraph addresses two specific aspects of a non-citizen's offending: its frequency and/or whether there is any trend of increasing seriousness.
Frequency
Mr Adefarakan’s criminal history[109] evidences a consistent frequency of offending between 2017 and 2022, including repeated acts of family violence.
[109] G7, pages 37-39.
Trend of increasing seriousness
The Tribunal considers that Mr Adefarakan’s criminal and other misconduct can be viewed with equal seriousness throughout the period in question, rather than demonstrating a trend of increasing seriousness. This applies in particular to his history of violence against women.
Paragraph 8.1.1(1)(e)
This paragraph addresses the cumulative effect(s) of Mr Adefarakan’s repeated offending.
The effects of Mr Adefarakan’s criminal offending have also imposed significant costs – financial, emotional, psychological and social - on his de facto partners and his child.
Mr Adefarakan’s criminal offending has imposed significant costs on the Australian policing, judicial and jail systems in terms of money and resources expended.
It is clear from aggregating and considering these perspectives that the cumulative effect of Mr Adefarakan’s repeated criminal offending is substantial, significant in the lives of those affected by it and likely to persist in the long-term.
Paragraph 8.1.1(1)(f)
This paragraph is concerned with whether Mr Adefarakan has provided false or misleading information to the Respondent Minister’s Department, including by not disclosing criminal offending.
In the absence of evidence from Mr Adefarakan or the Respondent that enlivens this paragraph, it is not relevant to any assessment of the nature and seriousness of Mr Adefarakan’s conduct.
Paragraph 8.1.1(1)(g)
This paragraph involves the issue of whether Mr Adefarakan has re-offended since being formally warned about the consequences of further offending in terms of his visa status.
In the absence of evidence from Mr Adefarakan or the Respondent that enlivens this paragraph in terms of Mr Adefarakan reoffending after 22 December 20222, it is not relevant to any assessment of the nature and seriousness of Mr Adefarakan’s conduct.
Paragraph 8.1.1(1)(h)
This paragraph requires the Tribunal to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.
There is no reference in either party’s oral or written submissions propounding or mentioning this component of the Direction. The Tribunal finds that this paragraph of the Direction is not relevant to any assessment of the nature and seriousness of Mr Adefarakan’s conduct.
Tribunal’s finding: The nature and seriousness of Mr Adefarakan’s conduct.
The Tribunal has sought above to apply and consider each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction.
With reference to the relevant and applicable paragraphs referred above, the Tribunal finds that the nature of the totality of Mr Adefarakan’ repeated and cumulative criminal offending and other conduct, encompassing crimes of a violent nature against women, assault, assault occasioning bodily harm and breaches of court orders, should be characterised as very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
This aspect of the Direction requires the Tribunal to assess the risk that Mr Adefarakan poses to the Australian community if he reoffends, taking into consideration the nature of any harm and its probability.
Paragraph 8.1.2(1)
This paragraph states:
‘In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.’
Paragraph 8.1.2(2)
This paragraph provides that, in considering the risk to the Australian community, a decision-maker must have regard to the following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
In assessing the risk to the Australian community, the Tribunal has first considered the evidence and then the Applicant’s and Respondent’s submissions in relation to paragraph 8.1.2.
The Tribunal has also considered the risk that Mr Adefarakan will harass, molest, intimidate or stalk another person in Australia. at paragraphs [41]-[60] above in terms of section 501(6)(d)(ii).
Tribunal’s Consideration: The nature of the harm to individuals or the Australian community were Mr Adefarakan to engage in further criminal or other serious conduct.
The Tribunal considers that the evidence before it demonstrates that the nature of the harm to both individuals and the Australian community arising from Mr Adefarakan’s past criminal conduct is both significant and substantial.
The nature of the resulting harm arising from a repeat of any of the aspects or categories of Mr Adefarakan’s criminal conduct would likely encompass a broad range of physical, psychological, financial, and societal consequences.
Tribunal’s Finding: The nature of the harm to individuals or the Australian community were Mr Adefarakan to engage in further criminal or other serious conduct.
The Tribunal finds that further future criminal conduct of the categories Mr Adefarakan has previously engaged in would result in serious and material physical, psychological and financial harm to the Australian community.
Tribunal’s Consideration: the likelihood of the non-citizen engaging in further criminal or other serious conduct.
The Tribunal has holistically considered the totality of the evidence addressing the likelihood of Mr Adefarakan engaging in further criminal or serious conduct.
[111] See the discussion in Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
The clear legislative intention is that the threshold is whether there is ‘a’ risk.[110]

The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specifically removed the word ‘significant’ from s 501(6)(d) leaving it as ‘a’ risk.[111]
On this occasion the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 stated (at [46]):
‘The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.’
[110] See the discussion in GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48]–[52].
Consequently, by applying the reasoning in Sabharwal FC[112], Murphy[113] and Guo[114] to this matter, the Tribunal’s task is to make an assessment of whether there is “a risk” or a likelihood of Mr Adefarakan engaging in further future criminal or serious conduct.
[112] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, [58] (“Sabharwal (FC)”).
[113] Murphy v Minister for Home Affairs [2018] FCA 1924.
[114] Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22.
As a starting point, the Tribunal here adopts its analysis and conclusion addressed in paragraphs [41] – [60] above.

a) Rehabilitation and Remorse

In addition, and considering the static and dynamic risk factors as well as the evidence before the Tribunal, the Tribunal observes that Mr Adefarakan has repeatedly offended in the same way despite assertions of insight and rehabilitation. He consistently deflects and minimises his conduct in his oral testimony. In terms of rehabilitation, his testimony is focused more on himself and forgiving himself than taking remedial actions to address the consequences of his actions. None of this evidence gives the Tribunal comfort or confidence that Mr Adefarakan has sufficient dynamic risk management factors available to him to counter the risk that he may reoffend.
Tribunal’s finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal finds that the risk to the Australian community should Mr Adefarakan commit further offences or engage in other serious conduct both exists and is significant, material and not ameliorated by his assertions of remorse or his rehabilitation efforts.
Conclusion: Primary consideration 1: Protection of the Australian community
This consideration weighs very heavily in favour of affirming the delegate’s decision to not revoke the cancellation of Mr Adefarakan’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN.
Paragraph 8.2 of the Direction states:
1The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
2This consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
3In considering the seriousness of the family violence engaged in by the noncitizen, 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 noncitizen’s migration status, should the non-citizen engage in further acts of family violence.
Paragraph 4(1) of the Direction defines family violence as:
‘… violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.
The Tribunal has assessed above that, from the evidence before it, Mr Adefarakan committed crimes of a violent nature against women, being Ms S, Ms G and Ms H.
Additionally, Mr Adefarakan was found guilty of a domestic violence offence[115], again making a consideration of paragraph 8.2 relevant.
[115] G7, pages 37-38.
Tribunal’s Consideration
When considering the seriousness of the family violence described in paragraph 8.2, the Direction states that the Tribunal must consider the elements of paragraph 8.2(3) where relevant.
The Tribunal must also consider whether the victims of the violence were members of Mr Adefarakan’s family and whether his conduct towards them can be classified as family violence.
The Tribunal has engaged in the following preparatory analysis to address these questions before considering whether Mr Adefarakan has committed acts of family violence.
Paragraph 4(1) of the Direction defines ‘family violence’ to mean "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful".
Paragraph 4(1) of the Direction defines ‘member of the person’s family’, for the purposes of the definition of family violence, as ‘including a person who has, or has had, an intimate personal relationship with the relevant person.’
Section 5G of the Act relevantly provides that the members of a person’s family are, “…taken to include […] (a) a de facto partner of the person; …”.
Section 5F of the Act relevantly provides that “a person is the spouse of another person (whether of the same sex or a different sex) if, under subsection (2), the 2 persons are in a married relationship.”. Subsection (2) provides that people are in a married relationship if (relevantly here):
…
(b) they have a mutual commitment to a shared life as a married couple to the exclusion of all others; and
(c) the relationship between them is genuine and continuing; and
(d) they:
(i) live together; or….’’
Applying these definitions to this matter’s facts and the evidence presented, the Tribunal considers that each of Ms S, Ms G and Ms H were, at the relevant times in which the violence against them occurred, members of Mr Adefarakan’s family as they each serially were living together with Mr Adefarakan and were also likely Mr Adefarakan’s de facto partners.
On this basis, the Tribunal furthers considers that Mr Adefarakan committed acts of family violence against each of Ms S, Ms G and Ms H. This conclusion is based on the evidence before the Tribunal of assaults, stalking and intentionally damaging or destroying property.
Having regard to these definitions, the Tribunal considers that Mr Adefarakan committed acts of family violence.
Mr Adefarakan’s conduct in terms of family violence was frequent between 2017 and 2022[116] and involved violence against three separate de facto partners. While the general trend of this conduct is one of constant and significant seriousness in terms of this offending, it is concerning to note that Mr Adefarakan also began to make death threats to his former de facto partners.
[116] G7, pages 37-38.
The cumulative effect of these repeated acts of family violence on each of his three former de facto partners, as well has his child with Ms S, is likely in the Tribunal's view to have been substantial and long lasting in terms of its emotional, psychological and financial impacts on each of them.

Paragraph 8.5(3) of the Direction provides that the above expectations apply, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
As with Paragraph 8.5(4) of the Direction, this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations.
Clause 8.5(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court (FCAFC) in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (“FYBR”).
Notwithstanding the different pathways in judicial reasoning, the plurality of the Court in FYBR held that “Expectations of the Australian community” is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[133]
[133] FYBR (2019) 272 FCR 454 (“FYBR”), at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[134]
[134] Ibid at 473 [75]– [76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[135]
[135]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
Observing the norm stipulated in paragraph 8.5(1), the Tribunal now considers the guidance provided by paragraphs 5.2(2) to (6) of the Direction:
2Non-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.
3The 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 measureable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5With respect to decisions to refuse, cancel, and revoke cancellations of a visa, However, Australia will generally may afford a higher level of tolerance of criminal or other serious conduct by non citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
The Tribunal has found that Mr Adefarakan has committed serious crimes against women. Paragraph 8.5(2) of the Direction is enlivened.
The next question is whether there are any factors which modify the Australian community’s expectations.
This question is informed by the principles in paragraphs 5.2(4) to (6) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa.
(a)The Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time.
(b)In relation to decisions to refuse, cancel and revoke cancellations of visas, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age.
(c)The level of this tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(d)the nature of a 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 a visa outcome that is not adverse to the non-citizen.
(e)In particular, the inherent nature of certain types of conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 8.5(3) provides that the Australian community's expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Direction further explains at Paragraph 8.5(4):
‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision – makers should 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 5.2(4) uses the term ‘limited stay visa’ which is not defined in the Act. The Act does however create a taxonomy of visas. Relevantly for present purposes,
Section 30 of the Act contemplates both (1) ‘permanent’ visas, which permit a right to remain, ‘indefinitely’; and (2) ‘temporary visas’, which provide a conditional right to remain. ‘Limited stay’, as used in the Direction, seems to be a reference to non-permanent or ‘temporary’ visas.
Tribunal’s Consideration
Mr Adefarakan held a Partner (Class BS) (Subclass 801) visa. This is visa allows the visa holder to remain in Australia indefinitely.[136]
[136] Migration Regulations 1994 (Cth), reg 800.511.
This implies that sub-paragraph 5.2(4)’s lower tolerance does not apply.
Mr Adefarakan has lived in Australia since he was 23 and began offending three years later. Mr Adefarakan has made some contributions to the Australian community as a worker.
Australia may afford a higher level of tolerance of criminal or other serious conduct by
non-citizens who have lived in the Australian community for most of their life. Mr Adefarakan has not done so and consequently does not, in the Tribunal’s view, benefit from being afforded a higher level of tolerance. <It would be useful to make a finding here whether or not the community’s tolerance is lowered>
The Tribunal has also found Mr Adefarakan’s offending conduct to be very serious.
The Tribunal also observes the requirements of paragraph 8.4(3) of the Direction which dictate that the expectations of the Australian community apply regardless of whether a non-citizen poses a measurable risk of causing physical harm to the Australian community. The Tribunal has found above that Mr Adefarakan poses a significant and material risk of re-offending.
The Tribunal is satisfied that Mr Adefarakan has breached the Australian community’s expectations by his criminal offending which involved serious breaches of Australian laws and in particular involved crimes of violence against women and acts of family violence. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
Conclusion: Primary consideration 5: Expectations of the Australian community
This consideration carries significant weight in favour of affirming the delegate’s decision to not revoke the cancellation of Mr Adefarakan’s visa.
OTHER CONSIDERATIONS
The Tribunal now considers each of the four sub-paragraphs (a), (b), (c) and (d) set out in Other Considerations listed in paragraph 9 of the Direction.
Other Consideration (a): Legal consequences of the decision
Neither party contends that this consideration is at issue.
There is no claim, and otherwise nothing on the material to suggest, that Australia’s non-refoulement obligations are enlivened in respect of Mr Adefarakan.
Tribunal Finding: Other Consideration (a): Legal consequences of the decision.
The Tribunal considers that this Other Consideration (a) carries a neutral weight.
Other Consideration (b): Extent of impediments if removed.
Clause 9.2(1) of the Direction provides:
1Decision-makers must consider 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 Applicant’s and Respondent’s contentions
Mr Adefarakan’s contention on this consideration is that Mr Adefarakan would face emotional hardship, mainly due to being separated from Child A, upon being returned to Nigeria and that he would face financial and practical hardships due to a lack of social supports and employment opportunities in Nigeria. [137]
[137] Applicant’s Statement of Facts, Issues and Contentions at [73].
The Respondent’s contention acknowledges that Mr Adefarakan will be emotionally impacted if he were returned to Nigeria.
The Respondent then observes that, in terms of establishing himself and maintaining basic living standards, as a Nigerian citizen Mr Adefarakan would have the same access to social, medical and economic support as other Nigerian citizens. That would not be of the same standard of medical care as in Australia and current country information indicates that Nigeria faces significant challenges in ensuring employment opportunities for its large, young population.[138]
[138] DFAT Country Information Report Nigeria, 3 December 2020.
The Respondent further observes that Mr Adefarakan spent his formative years in Nigeria and may have some level of family support given that his mother, step-brother and three brothers still reside there.[139]
[139] G14, pages 135 and 142.
Overall, the Respondent contends that any impediments to Mr Adefarakan being removed to Nigeria would not be insurmountable and that, if this consideration weighs in his favour, it does not outweigh the primary considerations which weigh heavily against revocation.
Tribunal’s Consideration
This aspect of the Direction requires the Tribunal to assess and consider the extent of any impediments that Mr Adefarakan, if removed from Australia to Nigeria, will face in establishing himself and maintaining basic living standards taking the specific factors below into account.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health
Mr Adefarakan is 32 years old.
The evidence before the Tribunal relating to Mr Adefarakan’s health consists of reports prepared by NSW Corrective Services[140] and IHMS[141]. Based on these reports, Mr Adefarakan suffers from hypercholesterolaemia, hypertension, diabetes Type II, lower back pain, anxiety and depression. Mr Adefarakan reported his claims of childhood sexual abuse to both NSW Corrective Services and IHMS.
[140] Respondent’s Tender Bundle, pages 191 -192.
[141] Respondent’s Tender Bundle, pages 193 -197.
The Tribunal concludes, after looking holistically at the available evidence of Mr Adefarakan’s general state of health and synthesising this evidence, that while he suffers from the above conditions, none of them are sufficient on the available evidence to currently impede his ability to re-settle and maintain basic living standards in Nigeria.
Acknowledging the Federal Court’s decision in Holloway v Minister for Immigration, Citizenship and Multicultural Affairs[142], the Tribunal considers that Mr Adefarakan faces a risk that the stresses and emotional hardships that the Tribunal acknowledges in its consideration of impediments he will likely face if removed to Nigeria may aggravate his anxiety and depression. This is particularly so if his claims of childhood sexual abuse are valid as these are alleged to have occurred in Nigeria.
[142] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126.
Balanced against this risk are the protective factors he has developed through the rehabilitative course he has undertaken in relation to his drug use – his insight into his behavioural issues, his acceptance of this, as well as the lessons from the rehabilitation and psychological therapy he has subsequently experienced. Mr Adefarakan now has tools at his disposal to manage this risk if it crystallises if he is returned to Nigeria.
Sub-paragraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal considers that Mr Adefarakan, based on his oral testimony[143] and the fact that he lived in Nigeria until he was 23, would face few, if any linguistic difficulties if he returned to Nigeria.
[143] Transcript, page 23, lines 18-19.
The Tribunal also considers that Mr Adefarakan is unlikely to face significant cultural issues for the same reason, as well as the presence of his family network in Nigeria. The Tribunal acknowledges his contentions of emotional distress but observes that these are more personal than cultural.
Given the evidence of Mr Adefarakan’s work history in Australia, his knowledge of Nigerian languages, his family network and his relative youth, the Tribunal considers that he would be able to overcome any cultural barriers that arise. His Australian employment experiences would also appear to be transferrable to the Nigerian employment market.
Sub-paragraph 9.2(1)(c) - any social, medical and/or economic support available to them in that country
The Tribunal considers that the rules relating to access to Nigeria’s social, medical and welfare systems may prove problematic for Mr Adefarakan in the short-term.
Addressing the potential for Mr Adefarakan’s mental health to become an impediment, the Tribunal again acknowledges the Federal Court’s decision in Holloway v Minister for Immigration, Citizenship and Multicultural Affairs.[144]
[144] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126.
The Tribunal must consider both Mr Adefarakan’s health as broadly construed, and any social, medical and/or economic support available to him in Nigeria if he is returned there. To quote from Justice Colvin’s decision in Holloway:[145]
‘Used in the phrase 'age and health', the word health would ordinarily be understood to mean any aspect of a person's physical wellbeing and would include the overall state of a person's fitness and condition, including underlying health issues and ongoing effects of any past injury. Within ordinary parlance, a person's status as having a history of substance abuse, especially where there was evidence from which it may be concluded that there was a real risk of relapse into misuse of substances to such an extent that it would be an impediment to a person being able to establish and maintain basic living standards, is aspect of that person's overall health.’
and
‘The error by the Tribunal was to confine the term 'health' to only include currently manifested health issues and difficulties.’[146]
and
‘Of course, there may be reasons why an underlying condition which is being managed or which is in remission or for which there is effective treatment may not be likely to manifest as an impediment.’[147]
[145] Op.cit. [12].
[146] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126, [13].
[147] Ibid, [15].
Tribunal’s analysis and consideration
The Tribunal has considered above the extent of any impediments that Mr Adefarakan, if removed from Australia to Nigeria, will face in establishing himself and maintaining basic living standards, considering the specific factors set out in paragraph 9.2(1).
In particular the Tribunal has analysed the interplay between Mr Adefarakan’s health, broadly considered in light of the evidence and Holloway, and the available care and conditions to which he is likely to be exposed if removed to Nigeria. The Tribunal considers that, if Mr Adefarakan experiences a repetition of the mental and physical health issues he has in Australia, then, in addition to the new risk management tools and insights he has developed, treatment is available to him in Nigeria as would be available for any other Nigerian citizen.
Tribunal finding: Other Consideration (b) Extent of impediments if removed.
Having regard to the analysis referrable to each of the three sub-paragraph components of this other consideration (b), the Tribunal finds that Mr Adefarakan would face a level of emotional, practical, financial and medical hardship if he was returned to Nigeria.
This hardship would be aggravated by the separation from his wife and daughter in Australia and the likely short-term difficulties he would face in re-establishing himself in Nigeria, ameliorated by his family network there.
While there are risks that these difficulties and hardship may affect Mr Adefarakan’s mental health, the Tribunal considers that his relative youth, cultural propinquity to Nigeria and support from his family in Nigeria are other dynamic protective risk management factors that mitigate and manage these risks.
This Other Consideration (b) carries some weight in favour of setting aside the delegate’s decision under review.
Other Consideration (c): Impact on victims
Clause 9.3(1) of the Direction states:
‘Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.’
Tribunal finding: Other Consideration (c): Impact on victims.
Ms S, the first of Mr Adefarakan’s victims, has provided two letters of support[148] and also gave evidence in support of Mr Adefarakan. She claims that fundamentally Mr Adefarakan is a good man who has reformed and reforged himself in prison and in detention.
[148] G Documents, G 18, page 273 and G22, page 465.
There is no evidence from the victims of Mr Adefarakan’s 2020 and 2022 offending.
The Respondent contends that Ms S’ evidence as to the impact on herself and her daughter has already been taken into account under ties to Australia and the best interests of the child and that the Tribunal should not double count them.
Justice Perram’s decision in Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[149] supports this argument that a decision-maker is not usually required to take a matter into account repetitiously.[150]
[149] Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646.
[150] Op.cit, [26].

However, Justice Kennett’s decision in Demir v Minister for Immigration, Citizenship and Multicultural Affairs[151] offers a different perspective on this argument. At [25] Justice Kennett found:
‘The applicant relies on the reference by the Tribunal to “three primary considerations” in its reasons at [102] (set out above at [14]) to submit that the Tribunal was diverted from the proper performance of its task by the number of considerations that weighed against revocation, having failed to appreciate that one of these considerations (family violence) overlapped significantly with the others. That reading takes insufficient account of the fact that the Tribunal is a human, rather than an algorithmic, decision-maker. The “weight” that the Tribunal gave to the three primary considerations was described (at [102]) as something that it had “decided” in the “the circumstances of this case”. This is properly understood as reflecting the Tribunal’s ultimate conclusion as to what was the correct decision in the light of the matters it was required to consider; not a mechanistic weighing of three considerations pointing in one direction against two pointing in the other. The conclusion is not rendered irrational, in any presently relevant sense, by reason of the relevant considerations having been identified and enumerated by reference to the Direction. If the Tribunal was prompted to give more attention than it would otherwise have done to the fact that the applicant’s offending involved family violence, that simply reflects the Direction having had an influence of the kind envisaged in Jagroop.’
(emphasis added)
[151] DEMIR V MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS [2023] FCA 870.
Based on the abovementioned statements, the Tribunal finds that this Other Consideration (c) carries a slight weight in favour of setting aside the delegate’s decision under review.
Other consideration (d) Impact on Australian business interests if Mr Adefarakan cannot remain here.
Paragraph 9.4 (1) compels an assessment of Mr Adefarakan’s employment links to Australia with reference to any impact his removal may have on, “Australian business interests”, qualified by the words that ‘an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia’.
There is no evidence before the Tribunal that the Mr Adefarakan’s removal from Australia would significantly impact Australian business interests or compromise the delivery of a major project or an important service in Australia.
Tribunal finding: Other Consideration (d): the impact on Australian business interests if Mr Adefarakan cannot remain here.
The Tribunal finds that Other Consideration (d) carries neutral weight.
FINDINGS: OTHER CONSIDERATIONS
The Tribunal now summarises the respective weights it has allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
Other Consideration (a) – legal consequences of the decision:
·This consideration has neutral weight.
Other Consideration (b) - extent of impediments if removed:
·This consideration carries some weight in favour of setting aside the delegate’s decision under review.
Other Consideration (c) - impact on victims:
·This consideration carries some weight in favour of setting aside the delegate’s decision under review.
Other Consideration (d) – Impacts on Australian business interests :
·This consideration has neutral weight.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in the Direction (paragraph 9(1) of the Direction).[152]
[152] Per Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
There are no additional considerations before the Tribunal in this matter.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, Mr Adefarakan does not pass the character test.
In determining whether there is ‘another reason’ to revoke the cancellation decision, the Tribunal has applied the Direction to this matter’s specific circumstances.
The Tribunal find as follows:
Primary Consideration 1 - protection of the Australian community from criminal or other serious conduct:
·This consideration weighs very heavily in favour of affirming the delegate’s decision to not revoke the cancellation of Mr Adefarakan’s visa.
Primary Consideration 2 - whether the conduct engaged in constituted family violence:
·This consideration weighs very heavily in favour of affirming the delegate’s decision to not revoke the cancellation of Mr Adefarakan’s visa.
Primary Consideration 3 - the strength, nature and duration of ties to Australia:
·This consideration carries some weight towards setting aside the delegate’s decision to not revoke the cancellation of Mr Adefarakan’s visa.
Primary Consideration 4 - best interests of minor children in Australia affected by the decision :
·This consideration carries weight in favour of setting aside the delegate’s decision to cancel Mr Adefarakan’s visa.
Primary Consideration 5 – expectations of the Australian Community:
·This consideration carries significant weight in favour of affirming the delegate’s decision to not revoke the cancellation of Mr Adefarakan’s visa.
The Tribunal has also set out above the weight attributable to the other considerations and the additional consideration.
A comprehensive, holistic and integrated view of the primary considerations and the other considerations leads this Tribunal to a finding that it is not satisfied of there being another reason to revoke the cancellation of the Applicant’s visa. Accordingly, the Tribunal makes a finding of affirming the delegate’s decision to not revoke the cancellation of Mr Adefarakan’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 24 August 2023 to not revoke the cancellation of Mr Adefarakan’s visa.

I certify that the preceding two hundred and sixty-nine paragraphs (269) paragraphs are a true copy of the reasons for the decision herein of Member D. Cosgrave

................[SGD]...................
Associate
Dated: 20 December 2023

Dates of hearing: 31 October & 1 November 2023

Solicitor for the Applicant: Ms Mamarot of SouthWest Migration & Legal Services

Solicitor for the Respondent: Mr Burke of Sparke Helmore Lawyers
ANNEXURE A – EXHIBIT REGISTER

DOCUMENTS

Description

Party

Date of Doc.

Date filed

Exhibit

Submissions

Applicant’s SFIC

A

28.09.2023

13.10.2023

Respondent’s SFIC

R

19.10.2023

19.10.2023

Respondent email correcting comment in hearing

R

01.11.2023

01.11.2023

Evidence

G Documents (G1-G28)

R

Various

08.09.2023

Applicant’s Final Tender Bundle

A

Various

25.10.2023

Applicant’s Further Documents

A

Various

25.10.2023

Respondent’s Tender Bundle

R

Various

19.10.2023

DOCUMENTS
*Submissions*
Applicant’s SFIC	A	28.09.2023	13.10.2023
Respondent’s SFIC	R	19.10.2023	19.10.2023
Respondent email correcting comment in hearing	R	01.11.2023	01.11.2023
*Evidence*
G Documents (G1-G28)	R	Various	08.09.2023
Applicant’s Final Tender Bundle	A	Various	25.10.2023
Applicant’s Further Documents	A	Various	25.10.2023
Respondent’s Tender Bundle	R	Various	19.10.2023

ANNEXURE B: SHORT FORM DECISION

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL

)

)

No: 2023/6338

GENERAL DIVISION

)

Re: Adebayo Ademola Adefarakan

Applicant
And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent
DECISION
TRIBUNAL:              Member David Cosgrave
DATE:   20 November 2023
PLACE:                    Brisbane
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 24 August 2023 to not revoke the cancellation of the Applicant’s visa.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.

….......[SGD]................
Member D Cosgrave

[2023] AATA 4216

20 November 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction

Jurisdiction

Date	Event
9 August 2017	Mr Adefarakan was convicted of Common assault (DV)-T2 and Destroy or damage property (DV). He was sentenced to a 12 month Section 9 Good behaviour bond.
22 October 2020	In a letter to the Court, Mr Adefarakan states that: “I will continue to engage with my counsellors and will use this as a positive catalyst to change myself for the better.” [43]
12 November 2020	Mr Adefarakan claims, in a meeting with NSW Department of Corrective Services staff, that he has commenced individual counselling through the Salvation Army.[44]
10 December 2020	Mr Adefarakan was convicted of Assault occasioning actual bodily harm (DV)-T2. He was sentenced to a two year Community Correction Order (CCO), 200 hours of community service work and directed to complete mental health treatment, counselling and the REINVEST programme if suitable.
13 December 2022	Mr Adefarakan was convicted Assault occasioning actual bodily harm (DV)-T2, Common assault (DV)-T2 (two counts), Enter prescribed premises of any person w/o lawful excuse and Contravene prohibition/restriction in AVO (Domestic) for which he was sentenced to an aggregate term of imprisonment of 12 months
22 December 2022	Mr Adefarakan’s visa was cancelled under s501(3A) as a delegate was satisfied he did not pass the character test because of the operation of s501(6)(a) (substantial criminal record) on the basis of s501(7)(c) and because he was serving a sentence of imprisonment of 12 months or more for an offence against a law of the Commonwealth, a State or a Territory. Notice was sent to Mr Adefarakan by hand delivery.[45]
19 January 2023	The Department of Home Affairs received Mr Adefarakan’s representations about the revocation of the cancellation decision.[46]
28 January 2023	Mr Adefarakan commenced counselling sessions with Ji Fang Zhou, a psychologist. He initially presented with anxiety and stress issues in the context of legal, accommodation, visa and relationship/family pressures. He also reported a history of trauma due to intrafamilial sexual abuse in childhood.
March 2023 – June 2023	Mr Adefarakan attended chaplaincy sessions with Number 8 Prison Project.[47]
10 March 2023	Instructed to surrender himself to immigration detention, Mr Adefarakan voluntarily complied.
14 March 2023	The District Court of New South Wales reduced his sentence to an aggregate term of nine months' imprisonment
23 March 2023	Attendance at Smart Recovery Workshop. [48]
4 May 2023	Attendance at Smart Recovery Workshop.[49]
18 May 2023	Attendance at Smart Recovery Workshop.[50]
25 May 2023	Attendance at Smart Recovery Workshop.[51]
26 May 2023	Certificate of course completion ‘Drug and Alcohol Abuse 101’ issued.
27 May 2023	Certificate of course completion ‘Domestic Violence 101’ issued.
July 2023	Completed the Circuit Breaker violence prevention program.[52]
16 August 2023	Commenced Anger Management course.[53]
13 October 2023	Certificate of course completion ‘Anger Management 101’ issued.[54]
22 October 2023	Engaged in SMART Recovery program. [55]

Dates of hearing:	31 October & 1 November 2023
Solicitor for the Applicant:	Ms Mamarot of SouthWest Migration & Legal Services
Solicitor for the Respondent:	Mr Burke of Sparke Helmore Lawyers

DOCUMENTS
Description	Party	Date of Doc.	Date filed	Exhibit
*Submissions*
Applicant’s SFIC	A	28.09.2023	13.10.2023
Respondent’s SFIC	R	19.10.2023	19.10.2023
Respondent email correcting comment in hearing	R	01.11.2023	01.11.2023
*Evidence*
G Documents (G1-G28)	R	Various	08.09.2023
Applicant’s Final Tender Bundle	A	Various	25.10.2023
Applicant’s Further Documents	A	Various	25.10.2023
Respondent’s Tender Bundle	R	Various	19.10.2023

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2023/6338
GENERAL DIVISION	)