Damuni and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 470

Damuni and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 470 (24 April 2025)
Applicant:Sivaniolo Damuni
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2025/0868

Tribunal:General Member K. Thornton
Place:Melbourne
Date:24 April 2025

Decision:The Tribunal affirms the decision under review.

.......................[SGD].................................................
General Member K. Thornton
Catchwords
MIGRATION – mandatory visa cancellation – citizen of Fiji – where Applicant granted Class BB Subclass 155 Five Year Resident Return visa – failure to pass good character test – substantial criminal record – whether another reason to revoke the mandatory cancellation of Applicant’s visa – Ministerial Direction No. 110 applied – decision affirmed
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
YNPX v Minister for Immigration and Multicultural Affairs [2025] FCA 49
Secondary Materials
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
INTRODUCTION

The Applicant is a 39-year-old citizen of Fiji. He seeks review of the Respondent’s decision under s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’) not to revoke the mandatory cancellation of his Class BB Subclass 155 Five Year Resident Return (Class BB) (Subclass 155) visa.
The Tribunal hearing was held on 10 April 2025 by video. The Applicant was self-represented. The Respondent was represented by Ms Catherine Oppel, lawyer from the Australian Government Solicitor.
For the reasons that follow, the Tribunal affirms the decision under review.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) provides that, for the purposes of this section, a person does not pass the character test if the person has a ‘substantial criminal record’ (as defined by s 501(7)). Section 501(7)(c) relevantly provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person. Section 501CA(4) provides that the Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Section 499(1) provides that the Minister may give written directions to a person or body having functions or powers under this Act if the directions are about (a) the performance or those functions; or (b) the exercise of those powers.
Section 499(2A) provides that a person or body must comply with a direction under subsection (1). Such a direction has been given under s 499 of the Act, namely Direction 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction 110’).
DIRECTION 110
The purpose of Direction 110 is to guide decision-makers in performing functions or exercising powers under s 501 and s 501CA of the Act.[1]
[1] Direction 110, 5.1.(4).
Paragraph 5.2 of Direction 110 contains the principles which provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under s 501, or whether to revoke a mandatory cancellation under s 501CA. Those principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 110 provides that informed by the principles in paragraph 5.2 (as set out above), a decision-maker must take into account the primary and other considerations as identified in sections 8 and 9, where relevant to the decision.
Paragraph 7 provides guidance in taking the relevant considerations into account. It provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of Direction 110 contains the primary considerations which are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia;
(5)expectations of the Australian community.
Paragraph 9(1) of Direction 110 contains the other considerations which must also be taken into account, where relevant, in making a decision under s 501(1), 501(2) or 501CA(4). The other considerations include (but are not limited to):
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
KEY BACKGROUND
The Applicant was born in Fiji and is currently 39 years of age. He arrived in Australia with his father as a five year old.[2] A few years later his mother and siblings also moved to Australia.[3]
[2] Exhibit R1, 328.
[3] Ibid.
On 31 March 2003 the Applicant was granted a Class BB Subclass 155 Five Year Resident Return visa.[4]
[4] Ibid 385.
On 24 February 2023 the Applicant was sentenced in the County Court of Victoria for one charge each of armed robbery and intentionally cause injury.[5]
[5] Ibid 265-77.
He received a total effective sentence of 2 years, 8 months’ imprisonment with a non-parole period of 17 months imprisonment.
On 1 May 2023, the Applicant’s visa was mandatorily cancelled under s 501(3A) of the Act as the delegate was satisfied that he did not pass the character test because of s 501(6)(a) of the Act as he had a ‘substantial criminal record’ (‘the mandatory cancellation decision’).[6] He was notified of the decision the same day.[7]
[6] Ibid 245-61.
[7] Ibid 385-92.
On 3 May 2023 the Applicant made representations through his representative seeking to have the mandatory cancellation decision revoked.[8]
[8] Ibid 245.
On 4 February 2025 a delegate of the Respondent decided not to revoke the mandatory cancellation decision under s 501CA(4) of the Act (‘the non-revocation decision’).[9] The Applicant was notified of the non-revocation decision via email through his authorised representative the same day.[10]
[9] Ibid 243.
[10] Ibid 417-8.
On 7 February 2025, the Applicant lodged an application for review of the non-revocation decision with the Tribunal.[11]
[11] Ibid 225-39.
On 20 February 2025 and 17 March 2025 the Tribunal conducted case management directions hearings. The Applicant failed to appear at either of these hearings. A copy of the relevant Direction was forwarded to him via his nominated email address.
On 3 April 2025 a further case management directions hearing was held which the Applicant attended. He was reminded of important timeframes under the Act,[12] and invited to provide any additional material within those timeframes.
[12] Such as s 500(6H) and s 500(6J) of the Act.
On 10 April 2025 the Tribunal hearing was held. The Tribunal received into evidence the following:
(a)Exhibit R1: Hearing Book lodged 4 April 2025 comprising 428 pages; and
(b)Exhibit R2: Respondent’s Statement of Facts, Issues and Contentions dated 17 March 2025.
The Applicant gave evidence via video and was cross-examined. Prior to doing so he was informed about his privilege against self-incrimination and indicated that he understood this privilege. The Applicant did not call any witnesses or provide any additional materials. He confirmed that a previous statement made by him to the Department of Home Affairs dated 22 May 2024 was true and correct.[13]
ISSUES TO BE DETERMINED
[13] Ibid 328-33.
Does the Applicant pass the character test?
The Applicant has been sentenced to a term of imprisonment of 12 months or more which means he has a ‘substantial criminal record’ within the meaning of s 501(7) of the Act. A person with a substantial criminal record does not pass the character test according to s 501(6)(a) of the Act. Accordingly, the Applicant does not pass the character test and the Tribunal makes this finding. He therefore cannot rely on s 501CA(4)(b)(i) as a basis to revoke the mandatory cancellation decision.
Is there another reason why the original decision should be revoked?
The remaining issue to be determined is whether there is ‘another reason’ why the mandatory cancellation decision should be revoked under s 501CA(4)(b)(ii) of the Act.
In order to determine this issue, the Tribunal must have regard to Direction 110 and apply it to the specific circumstances of the Applicant’s case. The Tribunal is required to read, identify, understand and evaluate the representations and bring its mind to bear upon the facts stated in them and the arguments or opinions put forward.[14] The weight to be afforded to the representations is a matter for the decision-maker.[15]
PRIMARY CONSIDERATIONS
[14] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 [24].
[15] Ibid.
Primary consideration 1: Protection of the Australian community
Paragraph 8.1 of Direction 110 provides:
(1)When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal has had regard to the matters set out at paragraph 8.1(1) of Direction 110. As required by Direction 110 the Tribunal has also given consideration to the matters identified at paragraph 8.1(2) which are dealt with below.
The nature and seriousness of the conduct
Paragraph 8.1.1 of the Direction provides:
(1)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 and/or sexual 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 noncitizen 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 impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
e)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
f)the cumulative effect of repeated offending;
g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
h)whether the non-citizen has re-offended 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);
i)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant has a lengthy criminal history as set out in the report from the Australian Criminal Intelligence Commission dated 14 April 2023.[16] The Applicant’s criminal offending commenced in 2008 and continued to his most recent offending for which he was sentenced by the County Court of Victoria on 24 February 2023. The Applicant was sentenced on that date to a total effective sentence of 2 years, 8 months’ imprisonment with a non-parole period of 17 months for one charge of armed robbery and intentionally cause injury.[17]
[16] Ibid 262-4.
[17] Ibid 265-77.
This offending occurred on 25 December 2021 when the Applicant was 36 years of age. The facts can be summarised briefly. The Applicant was homeless and living in a makeshift tent at the rear of a property in Melbourne. He approached the male victim, who was also homeless and living out of his vehicle. The Applicant approached the vehicle and demanded the victim hand over a DVD player from his vehicle. The victim made efforts to locate the DVD player in the vehicle. The Applicant screamed at the victim, smashed the driver’s side window, produced a knife and made threats to stab him. The Applicant proceeded to attack the victim through the broken window and stab him three times to his right forearm causing injuries which later required surgery. Police arrested the Applicant nearby. The Applicant made full admissions to the offending and said he was ‘angry’ and admitted that he had stabbed the victim ‘quite hard’.[18]
[18] Ibid 266-8.
Prior to this offending, the Applicant was sentenced in the Sunshine Magistrates’ Court in September 2021 to an aggregate of 45 days imprisonment for breaching a prior Community Correction Order (‘CCO’) which was imposed on him in January 2021.[19] That Order was imposed for multiple charges including contravening a conduct condition of bail, recklessly cause injury and threat to inflict serious injury.[20] This offending occurred in the context of family violence.[21]
[19] Ibid 263.
[20] Ibid.
[21] Ibid 249, 292.
The Applicant has also prior convictions for failing to answer bail, contravening family violence intervention orders, drug offences, criminal damage, stalking, making threats to inflict serious injury, and unlawful assault.[22] The Applicant was first sentenced to a term of imprisonment by the Sunshine Magistrates’ Court in October 2020 but continued to offend and continued to breach the conditions of his bail.[23]
[22] Ibid 263-4.
[23] Ibid.
Paragraph 8.1.1(1)(a) describes conduct that is viewed as very serious by the Australian Government and the Australian community. Those crimes include violent and/or sexual crimes, crimes of a violent and/or sexual nature against women or children, and acts of family violence.

The Applicant’s most recent offending can appropriately be described as very serious. It involved an act of violence against a male victim who received multiple stab wounds requiring surgery. The Applicant also has a prior criminal record for acts of family violence. Paragraph 8.1.1(1)(a)(iii) states that acts of family violence, regardless of whether there is a conviction or sentence imposed, are viewed as very serious. In the Applicant’s case, there has been repeated instances of family violence offending, which resulted in the imposition of the CCO in January 2021 which he breached by committing further acts of family violence against the same victim two weeks later.[24]
[24] Ibid 248-9.
The Tribunal has had regard to the factors listed in paragraph 8.1.1(1) of Direction 110 as follows.
Paragraph 8.1.1(1)(c): The Tribunal notes that the Applicant was sentenced to a significant term of imprisonment for his most recent offending despite the sentencing judge accepting that the Applicant’s cognitive difficulties and poor mental health would have a bearing on the sentence imposed.[25] The sentencing judge also noted the Applicant’s early plea of guilty and his efforts at rehabilitation whilst in custody.[26] The Tribunal has taken into account the sentence imposed by the County Court noting that terms of imprisonment are the most serious on the sentencing hierarchy. The sentence imposed by the County Court is a reflection of the seriousness of the Applicant’s conduct.
[25] Ibid 272-3 [32].
[26] Ibid 273-5 [33]-[39].
Paragraph 8.1.1(1)(d): The sentencing judge had regard to the impact the offending would have had on the victim. It was noted that whilst there was no victim impact statement, the victim described in his statement to police that he was left feeling terrified by the attack.[27] The Tribunal has also taken into account the impact of the Applicant’s earlier family violence offending. The victim stated to police that she is not afraid of the Applicant but is afraid he might damage property, and that she does not want him at her address.[28] The Tribunal has had regard to the impact on these victims and regards the impact on them as serious.
[27] Ibid 268 [16].
[28] Ibid 295.
Paragraph 8.1.1(1)(e): The Tribunal notes that the Applicant’s offending has been frequent and that there is an increasing trend of seriousness. The Applicant’s offending escalated from 2017 when he was sentenced for multiple charges including damaging property, drug possession and driving offences in the New South Wales Local Court. Thereafter his criminal offending increased in seriousness from 2020 onwards, until he was sentenced for armed robbery and intentionally cause injury in 2023.
Paragraph 8.1.1(1)(f): The Tribunal has had regard to cumulative effect of repeated offending especially on the victim of the multiple breaches of intervention orders by the Applicant.
Paragraph 8.1.1(1)(g), (h) and (i): These factors are not relevant to the Applicant’s circumstances.
The Tribunal is of the view that the nature and seriousness of the Applicant’s conduct weighs very heavily against revocation. The Tribunal has made the finding that the Applicant’s conduct is very serious and has increased in frequency and seriousness. These factors weigh heavily against the Applicant.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen reoffending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
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.
The Tribunal has had 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. In assessing the risk that may be posed, decision-makers must have cumulative regard to the factors identified at paragraph 8.1.2(2) of the Direction.
Paragraph 8.1.2(2)(a): Nature of the harm to individuals or the Australian community
In regard to this consideration the Respondent contends that should the Applicant engage in further criminal or other serious conduct, there is a real prospect that it could cause very serious physical and emotional harm to individuals and to the Australian community.[29]
[29] Exhibit R2, 7 [46].
The Tribunal agrees with this contention. The Tribunal has already determined that the Applicant’s conduct should be viewed as very serious. Plainly if this conduct were to be repeated it would cause significant harm to individuals and the Australian community.
Paragraph 8.1.2(2)(b) Likelihood of the non-citizen engaging in further criminal or other serious conduct
The Tribunal has considered the Applicant’s offending history and the various reports regarding his level of risk. In regard to his offending history, it is noted that the Applicant has a poor record of compliance of his bail conditions, various personal safety and family violence intervention orders, and with his previous CCO. These prior breaches are relevant to the question of the Applicant’s risk as they don’t appear to have deterred the Applicant from reoffending, despite being afforded multiple chances to remain in the community.
Previous breach of CCO
The Applicant was placed on a CCO on 28 January 2021.[30] He was required to report to Corrections Victoria within two clear working days but failed to do so. This was a contravention of the conduct conditions of the CCO. On 14 February 2021 the Applicant was charged with contravening a family violence intervention order as well as property damage offences.[31] These offences were alleged to have occurred on 13 February 2021, some two weeks after he was placed on a CCO. Corrections Victoria prepared a Contravention Report which made the following recommendation:[32]
Mr Damuni is a 35 -year-old male offender who is assessed as high risk of general re-offending according to the L Level of Service, Risk, Need and Responsivity tool. Mr Damuni was afforded the opportunity by the court to address his offending behaviour by way of a community-based disposition.
Mr Damuni's overall compliance with regards to this order is considered unsatisfactory as he failed to report to this service as required within two working days. Of further concern to this service, Mr Damuni was placed into custody on 14 February 2021 and is currently remanded at Metropolitan Remand Centre as a result of alleged further offending which if proven will contravene his order.
In light of the above, it is respectfully recommended that Mr Damuni's order be cancelled and he be resentenced on the original matters.
[30] Exhibit R1, 105.
[31] Ibid 105-6.
[32] Ibid 106-7.
Ultimately the Applicant was convicted on 29 March 2021 of contravening a family violence final intervention order, and contravening a conduct condition of bail which placed him in breach of his CCO.[33] The Applicant was charged with contravening his CCO and was re-sentenced on his original sentence. On 10 September 2021, the Magistrates’ Court formally cancelled his CCO and re-sentenced the Applicant to an aggregate of 45 days imprisonment.[34]
[33] Ibid 263.
[34] Ibid.
Psychological reports
Psychological reports were prepared in advance of the Applicant’s County Court plea and sentence by Dr Aaron Cunningham, a forensic psychologist and Dr Leonie Keall, a clinical neuropsychologist. [35] Both reports were referred to by the sentencing judge in her Honour’s sentencing remarks.[36]
[35] Dr Cunningham’s Report appears at 111-5, and Dr Keall’s Report appears at 116-26.
[36] Exhibit R1, 270-4.
Dr Cunningham conducted an assessment of the Applicant on 23 August 2022 and prepared a report dated 26 August 2022.[37] With regard to the Applicant’s background, Dr Cunningham noted that the Applicant has a significant drug and alcohol history, having used cannabis daily from the age of 15 and commenced methylamphetamine use at the age of 30.[38] The Applicant told Dr Cunningham that he suffers from an acquired brain injury from being beaten severely while homeless. Dr Cunningham noted that the Applicant has been prescribed the medication Risperidone for schizophrenia but reports that the Applicant has ‘little insight into this diagnosis’ and ‘was just going off what prison authorities had told him he suffered’. The Applicant reported being in a psychiatric hospital for a month in 2019 and being diagnosed with schizophrenia at the age of 35 when he was first incarcerated.[39] The Tribunal notes the Applicant turned 35 years of age in August 2020 and received his first term of imprisonment on 20 October 2020.[40] The Applicant’s recall of the timing of this diagnosis is therefore consistent with what appears in his criminal record.
[37] The Report notes that the assessment occurred on ‘23 August 2020’ which the Tribunal assumes is a typographical error, as the offending occurred in December 2021.
[38] Exhibit R1, 112.
[39] Ibid.
[40] Ibid 263-4.
Dr Cunningham administered the Historical Clinical Risk Scale (HCR-20) tool on the Applicant to assess his risk of future violent offending.[41] Dr Cunningham assessed the Applicant as a ‘moderate risk of future violent offending’, and that in his opinion, this risk would increase in the presence of drug abuse.[42]
[41] Ibid 112.
[42] Ibid.
In regard to the Applicant’s insight into his offending, the Applicant reported to Dr Cunningham ‘that he was not a violent person’ and that the offence was ‘an unfortunate event.’[43] He stated that he regretted his actions and was shocked at his behaviour. The Applicant had a knife due to previously being attacked while homeless.[44] According to Dr Cunningham, the Applicant’s account of the offence ‘indicated a shallow understanding of the consequences to the victim and the wrongfulness of his behaviour.’[45]
[43] Ibid 113.
[44] Ibid.
[45] Ibid.
Dr Cunningham noted that given the lack of clarity regarding the Applicant’s mental health and potential brain injury, Dr Cunningham opined that the Applicant’s abuse of drugs presents as the main contributor to his offence behaviour.[46] Dr Cunningham also recommended that the Applicant be assessed for a potential brain injury.[47]
[46] Ibid.
[47] Ibid.
Dr Keall prepared a clinical neuropsychology report for the County Court. The assessment was requested by his then legal representative to determine whether the Applicant may have an acquired brain injury or neurodevelopmental disorder, presumably in light of Dr Cunningham’s findings.[48] Dr Keall assessed the Applicant in January 2023 and prepared a report dated 13 February 2023, so prior to the Applicant’s sentencing for the primary offences on 24 February 2023.[49] Dr Keall concluded that the Applicant fell within the average range for intellectual functioning with a demonstrated impairment in aspects of his executive functioning.[50] Dr Keall noted that his ability to inhibit impulsive responses was impaired, and he also exhibited severe symptoms of depression and mild symptoms of stress.[51] However Dr Keall was unable to arrive at an exact cause of the Applicant’s cognitive difficulties. In her opinion, multiple factors could be operating including chronic methylamphetamine use, or the possibility of a traumatic brain injury although she was unable to reach a definite conclusion due to the lack of substantiating medical information presented to her.[52] She also concluded that the Applicant’s diagnosis of schizophrenia could also be associated with cognitive difficulties.[53] Dr Keall noted that the Applicant has a reduced ability to inhibit impulsive responses which ‘may mean he will act without thinking through the impact of his behaviour or the consequences of his actions.’[54] She concluded as follows:[55]
Mr Damuni would be at risk of exacerbation of his cognitive difficulties and possibly of further decline in cognitive functioning should he resume drug use. Similarly, deterioration of his mental health condition (e.g., due to non-compliance with his risperidone treatment) would likely exacerbate his cognitive difficulties.
[48] Ibid 116.
[49] Ibid 116.
[50] Ibid 121-2.
[51] Ibid 122.
[52] Ibid.
[53] Ibid 123.
[54] Ibid 125.
[55] Ibid.
Following his sentence of imprisonment for armed robbery and intentionally cause injury on 24 February 2023, the Applicant was referred to Corrections Victoria Forensic Intervention Services on 27 February 2023 in order to assist in the assessment of his risks and provide intervention recommendations.[56] The assessment took place on 1 June 2023 and an Assessment Report was prepared on 21 July 2023 by Ms Jenna Merrick, Clinical Team Leader. Ms Merrick summarised the Applicant’s offending behaviour noting that the Applicant had been involved in five family violence incidents and had twelve Intervention Orders taken out against him.[57] The Assessment Report noted that all family violence related matters pertain to familial victims, as opposed to intimate partners, and the Personal Safety Intervention Order matters related to the Applicant’s adult male acquaintances.[58] Ms Merrick noted that the Applicant’s overall insight into his violent offending was ‘minimal’.[59] She reported that the Applicant noted to her that ‘he would be deported to Fiji soon, but that if he completed any violence treatment this would “look good” in Court, possibly increasing his chance to stay in Australia.’[60] Ms Merrick noted that the Applicant had completed various courses during his imprisonment including two alcohol and drug programs as well as the courses ‘Ice and Me’ and ‘Cannabis and Me.’[61] At the time of Ms Merrick’s report, he had not completed violence treatment in prison nor in the community.[62]
[56] Ibid 91-104.
[57] Ibid 93.
[58] Ibid.
[59] Ibid 94.
[60] Ibid.
[61] Ibid 97.
[62] Ibid.
Ms Merrick administered the Violence Risk Scale (VRS) tool which is a comprehensive risk assessment that covers the majority of the best evidenced predictors of violence.[63] The VRS includes both static and dynamic risk factors which acknowledges the ‘fluctuating nature of risk as well as allowing the dynamic factors to serve as treatment and management targets.’[64] In regard to static factors, it was noted that the Applicant committed his first violent offence (affray) when he was 22 years of age, and that he has a history for multiple convictions relating to bail breaches as well as the breach of his CCO.[65] In regard to dynamic factors, it was noted that the Applicant’s criminal attitude appears to be a ‘driver as well as a precipitating factor to his violent offending.’[66] It was further noted that the Applicant has no prosocial peer networks and appears to have compromised healthy familial and social connections due to significant drug use.[67] Ms Merrick noted that the Applicant had a limited understanding of his violent offending behaviour, and his drug use and paranoid symptoms further distort his perception of actual events.[68] She also noted that the Applicant’s compliance with medication ‘is questionable given his history of being unsure that his mental health diagnosis is accurate.’[69] Ms Merrick concluded that the Applicant’s scores on the VRS placed him in the ‘high risk category of risk for violence relative to other service users.’ Ms Merrick explained that the Applicant is in a category that ‘poses a considerably higher risk than the average person who violently offends and will require a high level of supervision and resources to address this risk’.[70] The Report concluded that the Applicant was assessed as being medium risk of reoffending on the LS/RNR tool and a high risk on the ‘Empirically Guided Violence Risk Outcome’.[71]
[63] Ibid 98.
[64] Ibid.
[65] Ibid.
[66] Ibid 99.
[67] Ibid.
[68] Ibid 100.
[69] Ibid.
[70] Ibid 101.
[71] Ibid 104.
The Tribunal has also had regard to a more recent report from Dr Remy Glowinski, consultant psychiatrist, dated 22 September 2024 who prepared a Psychiatric Report upon request of the Applicant’s then legal representatives in respect of his revocation application.[72] Dr Glowinski interviewed the Applicant for approximately 50 minutes via video link on 17 September 2024.[73] The Applicant reported to Dr Glowinski that he regularly uses 0.2 or 0.3 grams of ice intravenously per week and regularly uses cannabis.[74] Dr Glowinski concluded that there appears to be ‘little doubt that [the Applicant] was experiencing acute psychotic symptoms throughout periods (or perhaps continuously) from 2018 to 2021.’[75] Dr Glowinski noted that this appears to be consistent with his experience of unemployment and homelessness during this period.[76] Aside from an involuntary hospital admission in 2019, Dr Glowinski noted that the Applicant has received little psychiatric treatment in the community beyond a couple of brief interventions.[77]
[72] Ibid 368-81.
[73] Ibid 368 [2].
[74] Ibid 379 [85].
[75] Ibid 379 [86].
[76] Ibid.
[77] Ibid.
Dr Glowinski concluded that the Applicant suffers from a substance abuse disorder, which appears to be in remission in the controlled (immigration detention) environment.[78] Dr Glowinski also concluded that the Applicant has suffered a psychotic disorder, although it is unclear whether this was a ‘simple (though prolonged) substance-induced psychotic episode, whether there was an underlying psychotic disorder triggered by substance use, and whether he now has an enduring psychotic condition.’[79]
[78] Ibid 379 [90].
[79] Ibid 379 [91].
Dr Glowinski noted that the Applicant commenced regular antipsychotic medication soon after he arrived in prison and continues to take Risperidone.[80] Dr Glowinski concluded that there was a ‘reasonably high likelihood of psychotic relapse if the Applicant ceased his treatment, with the high risk rising to near certainty if he was to resume amphetamine and probably cannabis use’.[81]
[80] Ibid 379 [88].
[81] Ibid 380 [92].
He believed that the Applicant ‘probably has schizophrenia, as opposed to a substance induced psychotic disorder’.[82] Dr Glowinski stated that the Applicant’s risk of reoffending ‘if released into the community appears contingent on the strongly inter-related dynamic factors of whether he relapses into ice use, remains engaged with psychiatric treatment and is in stable social circumstances.’[83] He will require long-term care in the public mental health system and possibly involuntary treatment if the Applicant exhibits any sign of psychotic relapse in the community.[84]
[82] Ibid 380 [93].
[83] Ibid 380-1 [98].
[84] Ibid 381 [100].
Dr Glowinski also provided a Supplementary Psychiatric Report dated 21 October 2024.[85] Dr Glowinski was asked to list and briefly explain factors that indicate a positive prognosis with respect to the Applicant’s psychiatric condition and substance abuse disorder. Dr Glowinski indicated several factors including the absence of a personality disorder, absence of antisocial behaviour outside of substance abuse/intoxication, positive employment history prior to the onset of substance abuse, and the absence of major adversity as a child, with Dr Glowinski noting that the Applicant was raised in a caring and supportive environment.[86]
[85] Ibid 382-3.
[86] Ibid.

Dr Glowinski regarded the Applicant as having a relatively lower risk of future violence.[87] He regarded his risk of psychiatric and substance abuse relapse, and associated risk of violence, as manageable with available treatment in the community, such that he should not pose an unacceptable risk to the community.[88]
[87] Ibid 383.
[88] Ibid.
Courses and rehabilitation programs completed in custody
The Applicant has completed a number of courses in custody aimed at addressing his drug and alcohol use. Those courses include:
·‘Ice and Me’ program on 25 November 2022;[89]
·‘Healthy Coping’ program on 1 December 2022 which explored the impact of alcohol and drug use on mental health, and strategies to manage mental health without using alcohol or other drugs;[90]
·‘Cannabis and Me’ program on 12 January 2023;[91]
·A 24-hour Drug and Alcohol Treatment Program (Level III) on 11 May 2023.[92]
[89] Ibid 362.
[90] Ibid 366.
[91] Ibid 364.
[92] Ibid 357.
The Applicant also completed various vocational Certificates, as well as courses on ‘Building Better Relationships’, and the ‘Doing Time’ program.[93] The Applicant recorded negative results in random drug testing conducted whilst in custody.[94]
[93] Ibid 358-61, 363, 365.
[94] Ibid 367.
Incidents in immigration detention
The Applicant entered immigration detention on 4 July 2024.[95] The Applicant has been involved in two minor incidents since being in detention, both occurring on 17 February 2025. The first incident occurred in the early hours of 17 February. In that incident the Applicant’s roommate approached staff and advised that the Applicant was preventing him from entering their room and that the Applicant was also in possession of a makeshift shiv. When staff attended the Applicant’s room they noticed the makeshift shiv on the desk. When questioned, the Applicant initially denied ownership but later admitted to possessing the weapon for self-protection.[96] When further inspecting the room, staff located several pill cups on the table with four large white pills and two smaller white pills in the cup as well as broken wires. The Applicant confirmed ownership of the pills and wires.[97]
[95] Ibid 50.
[96] Ibid 51.
[97] Ibid.
The second incident occurred on the evening of 17 February. At approximately 5.30pm, the Applicant was involved in an altercation with a fellow detainee in the mess hall. According to the Client Incident Report, the Applicant reportedly became loud and aggressive and slammed his right fist on a table. Another detainee told the Applicant to keep his voice down, after which the Applicant aggressively marched towards the other detainee. The Applicant was observed yelling and left the area. The other detainee was sighted arguing with the Applicant which resulted in physical contact between the detainee and the Applicant.[98]
[98] Ibid 52.
When spoken to about his behaviour, the Applicant said he had taken an illicit substance and was not in a good state of mind.[99] A decision was then made to have the Applicant transferred to High Care Accommodation within the detention centre.[100]
[99] Ibid.
[100] Ibid.
The Applicant was spoken to by a nurse about this incident the following day. According to the clinical notes the Applicant admitted to taking drugs the day before, that it was probably methylamphetamine, and that he took it by vaping method.[101] He stated that he started taking drugs approximately one month ago, and that he uses approximately once a week.[102]
[101] Ibid 55-6.
[102] Ibid 56.
The Applicant was cross-examined about each of the incidents by the Respondent. The Applicant was reminded of his privilege against self-incrimination, but freely agreed that each of the incidents took place and that what is written in the Incident Reports ‘sounds correct’.
Prior to these incidents, the clinical notes indicated that the Applicant ‘attended and engaged well’ with the ‘SMART Recovery Program’ and attended that program on 17 July 2024.[103] Further engagement was discussed at a subsequent primary nurse visit and the Applicant was advised of the alcohol and drug resources available to the Applicant including a drug and alcohol counsellor, psychologist and SMART Recovery for psychological support.[104] When the Applicant was reviewed by a psychiatrist in August 2024, the Applicant reported inconsistent compliance with his medication, and a reduction in his Risperidone use.[105] When the Applicant was next seen by a Psychiatrist in October 2024, his Risperidone use was further reduced.[106] When questioned about this under cross-examination, the Applicant admitted to reducing and later ceasing his medication because of the side-effects he was experiencing.
[103] Ibid 21.
[104] Ibid 17.
[105] Ibid 13-4.
[106] Ibid 5.
In any event, the Applicant’s reduction in Risperidone and the taking of illicit substances in immigration detention, in combination with the events of 17 February demonstrate that the Applicant’s risk regarding drug-taking, propensity for violence, and apparent need to have a weapon has not abated. The Applicant stated to the Department in May 2024 that at the time of his offending he had never used a knife before and will never use a weapon again.[107] He stated in the Assessment Report to Corrections Victoria that he did use violence in the time he was homeless and that he also carried a knife.[108] He stated to Dr Glowinski that he carried a knife for protection.[109] Under cross-examination the Applicant admitted to having the makeshift shiv, but that in this instance he just ‘stumbled across it’ and ‘it just happened to be in my possession’ when his room was searched. When questioned about his statement to the officer that he had possessed the weapon for ‘self-protection’ he said he had to give the officers a story, and that he thought it would be better to say something or to give an explanation for possessing it. The Tribunal does not find this explanation to be credible, given the previous report to Dr Glowinski that he previously carried a knife ‘for protection.’ It was put to the Applicant whether he felt he needed the shiv for ‘protection’ whilst in immigration detention which he denied.
[107] Ibid 331 [28].
[108] Ibid 97.
[109] Ibid 373 [38].
Conclusion on risk to the Australian community
The Tribunal acknowledges the positive steps towards rehabilitation the Applicant has taken whilst in custody to address his issues with drugs and alcohol, and notes Dr Glowinski’s favourable findings that the Applicant is at a low risk of reoffending if he engages with mental health treatment, continues his medication regime and abstains from drugs and alcohol. Dr Cunningham described the Applicant’s risk as moderate. Both Dr Cunningham and Dr Glowinski agree that the Applicant’s drug abuse behaviour is intrinsically tied to his risk. It was also agreed that the Applicant required rehabilitation to address his drug abuse behaviour, the presence of stable accommodation, as well as engagement with mental health services. According to Dr Glowinski, the Applicant’s risk of reoffending appears contingent on whether he relapses into ice use, remains engaged with psychiatric treatment and is in stable social circumstances.[110]
[110] Ibid 380-1 [98].
Unfortunately, however, the Applicant does not appear to have abstained from drug use, having admitted to taking methylamphetamine whilst in immigration detention. He was also found in possession of a makeshift shiv. The Applicant had no firm plans to reengage with mental health treatment if released back into the community, and on his own report, has not engaged in alcohol and drug counselling (with the exception of the SMART Recovery program) whilst in immigration detention. He also gave evidence that he had ceased his medication Risperidone. Dr Glowinski considered that it was almost certain that the Applicant would relapse if he consumed drugs and alcohol whilst in the community.[111]
[111] Ibid 381 [100].
The Applicant does not appear to have firm plans for future accommodation or employment if released from immigration detention. His evidence to the Tribunal was that he might consider moving to Robinvale to work on farms or try and engage with bible studies. He did not appear to have the support of his immediate family or any close friends in terms of offering the Applicant accommodation or support if released. When asked whether he would consider seeking mental health treatment or support in the community he agreed it would be ‘a good idea’.
On the basis of the above, the Tribunal concludes that the nature of the conduct and the harm that would be caused if it were to be repeated, is so serious that any risk it may be repeated is unacceptable. The Applicant has already suffered a relapse into drug use. According to Dr Glowinski his risk of reoffending is contingent on whether he relapses into drug use, which he has. The evidence suggests that the Applicant has not achieved a sufficient level of rehabilitation, if any. This weighs very heavily against revoking the mandatory cancellation decision.
Conclusion on primary consideration 1
The Tribunal considers that the Applicant’s most recent criminal offending is very serious. The Applicant committed an armed robbery and inflicted three stab wounds on his victim which required surgery. The Applicant also has prior convictions for family violence and has been subject to numerous family violence and personal safety intervention orders.
The Tribunal notes that the Applicant has a demonstrated history of non-compliance with bail conditions and a previous CCO. When assessed by Forensic Intervention Services whilst in custody he was found to be at a high risk of future violent offending. Dr Cunningham had previously assessed the Applicant as a moderate risk. The most recent report of Dr Glowinski assessed him as being a low risk which appeared to be conditional on the Applicant abstaining from drugs and alcohol, continuing on his medication regime, and engaging with appropriate mental health services.
Unfortunately, the Applicant has suffered a relapse whilst in immigration detention and admitted using ice. He told the Tribunal that he stopped taking his Risperidone and had not engaged with drug and alcohol treatment programs. There appeared to be no firm plans with regard to accommodation, employment or seeking mental health support in the community. Without these protective factors, the Tribunal concludes that the Applicant is of a high risk of reoffending. The Tribunal considers that the nature of the harm that would be caused to the Australian community is so serious that this risk is unacceptable.
The Tribunal has afforded this primary consideration very heavy weight against revocation. Paragraph 7(2) of Direction 110 states that protection of the Australian community should generally be afforded greater weight than the other primary considerations. The Tribunal considers that it is entirely appropriate in the circumstances to attribute greater weight to this primary consideration and does so.
The Tribunal concludes that this primary consideration as a whole weighs very heavily against revocation and has afforded it greater weight in the overall balancing exercise.
Primary consideration 2: Family violence committed by the non-citizen
Paragraph 8.2(1) of Direction 110 states that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Direction states that the Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 8.2(2) provides that this 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.
Paragraph 8.2(3) provides that in considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.
The Applicant has been convicted of the following family violence offences:
(a)On 7 March 2017 the Applicant was convicted of ‘destroy or damage property’, ‘stalk/intimidate intend fear physical etc harm (domestic)’ and ‘use carriage service to menace/harass/offend’.[112] This matter related to an incident against the Applicant’s former partner, whereby the Applicant sent threatening text messages and caused damage to the family home.[113] He was convicted and fined for these offences.[114]
(b)On 20 October 2020 the Applicant was convicted of ‘Persist contra family violence NTC/Order’, three charges of ‘Unlawful assault’, three charges ‘Intentionally damage property’, one charge of ‘Threat to inflict serious injury’ and other offences.[115] These charges relate to two separate incidents against members of the Applicant’s family.
(c)The first incident occurred in July 2020 when the Applicant began verbally abusing the family member and made threats stating, “I’m going to cut you up into pieces”. The Applicant then attempted to punch the family member in the face. The Applicant has then thrown a dinner plate at the family member which clipped the side of her head.[116]
(d)The second incident occurred in September 2020 when the Applicant attended the family member’s property in contravention of an Interim Family Violence Intervention Order. The Applicant was verbally abusive to the family member’s children and the family member. The family member tried to ask the Applicant to leave, and he then raised his right fist in the air towards the family member.[117] He was convicted and sentenced to an aggregate term of imprisonment of 28 days for this offending.[118]
(e)On 29 March 2021 the Applicant was convicted of ‘Contra-fam violence final intervention order’ and ‘Contravene a conduct condition of bail’.[119] This incident arose while the Applicant was living with a family member. The Applicant demanded cash from the family member to buy smokes. The Applicant was yelling and angry and caused damage to the family member’s property. She then asked him to leave the address.[120] The Applicant was convicted and fined for these offences.[121]
[112] Ibid 264.
[113] Ibid 329 [40].
[114] Ibid 264.
[115] Ibid 263-4.
[116] Ibid 180-1.
[117] Ibid 175.
[118] Ibid 263-4.
[119] Ibid 263.
[120] Ibid 293-5.
[121] Ibid 263.
The Applicant has had numerous family violence intervention orders taken out against him as follows:
(a)21 February 2017 – Intervention Order.[122]
(b)10 July 2020 – Interim Family Violence Intervention Order.[123]
(c)9 September 2020 – Interim Family Violence Intervention Order. On 22 February 2021 this Interim Order became final for a period of one year.[124]
(d)21 September 2020 – Interim Family Violence Intervention Order. On 22 February 2021, this Interim Order became Final for a period of one year.[125]
[122] Ibid 329 [17].
[123] Ibid 88.
[124] Ibid 87-8, 80-1.
[125] Ibid 85-6, 81-2.
The Applicant has also been subject to numerous Personal Safety Intervention Orders and Family Violence Safety Notices.[126]
[126] Ibid 80-9.
The Applicant has acknowledged the wrongfulness of his actions in his written statement to the Department. In relation to the offending against his ex-partner the Applicant said he was very remorseful and regretted his behaviour.[127] He also stated that he knew it was wrong to visit the affected family member and breach the order that was in place at the time.[128]
[127] Ibid 329 [16].
[128] Ibid 330-1 [26].
The Tribunal has had regard to the factors raised in paragraph 8.2(3) of Direction 110. In regard to each of these factors the Tribunal findings makes the following findings. The instances of family violence have been relatively frequent and have been consistently serious throughout (paragraph 8.2(3)(a)). Property damage is a common theme through these various episodes. The Applicant does not appear to be deterred by the imposition of Family Violence Intervention Orders and continued to breach them. The Tribunal has also had regard to the cumulative effects of family violence on the Applicant’s family, with the affected family members stating have seen the Applicant ‘at his worst when he was addicted to drugs and we would not feel safe for him to stay with us unless we were convinced that he had really turned his life around’.[129] It is evident through a careful reading of the their statements that the Applicant’s actions have put a strain on his family and the Tribunal has taken this into account.
[129] Ibid 341 [17].
Unfortunately, the Applicant has not been able to demonstrate evidence of rehabilitation in relation to his family violence offending (paragraph 8.2(3)(c)). The Applicant has expressed remorse for his actions but has not provided any evidence of specific courses or counselling undertaken to address his behaviour. The Applicant has completed courses which has addressed his drug use, but none specifically addressing family violence.
The Applicant has also re-offended and breached his previous Family Violence Intervention Orders (paragraph 8.2(d)). The imposition of previous Orders did not deter the Applicant from re-offending. These further acts of family violence committed after being placed on these Orders demonstrate the Applicant’s disregard for the law and elevate the seriousness of his actions.
Conclusion on primary consideration 2
In the Tribunal’s view, these repeated acts of family violence are serious. Although there are some expressions of remorse, there are no demonstrable efforts by the Applicant of rehabilitation to address this behaviour. The Respondent has invited the Tribunal to put at least moderate weight on this consideration in favour of not revoking the visa cancellation.[130] The Tribunal agrees with the Respondent’s submission and has decided to attribute this primary consideration moderate weight against revoking the mandatory cancellation decision.
[130] Exhibit R2, 13 [67].
Primary consideration 3: The strength, nature and duration of ties to Australia
Paragraph 8.3(1) states that decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(2) states that where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

The Respondent acknowledges that the Applicant has spent his formative years in Australia, having arrived here as a 5 year old.[131] The Applicant completed his schooling in Australia including Year 12. The Applicant previously had a solid work history, working as a labourer on the same farm for about five years.[132] Unfortunately, the Applicant’s life began to unravel following the breakdown of his relationship with his former partner with whom he had two children. The Applicant began offending soon after the breakdown of this relationship, which escalated when he moved from Sydney to Melbourne.
[131] Exhibit R2, 13 [68].
[132] Exhibit R1, 328 [8].
The Applicant’s mother and older sister (ML) provided references for the Applicant. The Applicant’s mother described the Applicant’s offending as ‘totally out of character’ and which all stemmed from issues he experienced with drug abuse after he and his ex-partner separated.[133] The Applicant’s mother states that she and the Applicant have a ‘very close relationship’ and that he used to call her ‘all the time’ from prison.[134] The Applicant’s mother also states that the Applicant has strong ties with his church, as his father was a pastor, and he was brought up in a church environment.[135]
[133] Exhibit R1, 340 [10].
[134] Ibid 340 [12].
[135] Ibid 341 [14].
The Applicant’s sister supported the Applicant following the breakdown of his relationship by offering him a place to stay.[136] Due to the Applicant’s drug use however, he was asked to leave their family home.[137] However even after he left, ML continued to provide support for him. She speaks to the Applicant when she is able to.[138] ML also notes that her two older children ‘are very close to [the Applicant], they love him’.[139] When he was living with the family, ML regarded him as a ‘supportive uncle’.[140]
[136] Ibid 343 [7].
[137] Ibid.
[138] Ibid 344 [10].
[139] Ibid 344 [11].
[140] Ibid.
The Applicant also has two minor children who live interstate. The Applicant does not have any contact with the children and hasn’t for a number of years. The Applicant has expressed a desire to reconnect with his children in the future.[141]
[141] Ibid 332 [37].
Conclusion on primary consideration 3
The Tribunal has considered the strength, nature and duration of the Applicant’s ties to Australia noting that the Applicant spent his formative years in Australia. He began offending in approximately 2008 when he was 22 years of age. His offending escalated upon the breakdown of his relationship in 2017. The Tribunal acknowledges the bond the Applicant shares with his mother and older sister, and his hopes to reunite with his children one day.
On balance, the Tribunal affords this primary consideration moderate weight in favour of revoking the mandatory cancellation decision. Although the Tribunal has afforded moderate weight to this primary consideration in the Applicant’s favour, it does not outweigh the primary considerations against revocation.
Primary consideration 4: Best interests of minor children in Australia affected by the decision.
Paragraph 8.4(1) provides that decision-makers must make a determination about whether cancellation or refusal under s 501, or non-revocation under s 501CA is, or is not, in the best interests of a child affected by the decision.
Paragraph 8.4(2) provides that this consideration only applies if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
Paragraph 8.4(3) provides that if there are two or more relevant children, the best interest of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.4(4) provides that in considering the best interests of the child, the following factors must be considered where relevant:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has two minor children with his former partner. The Applicant has had very limited contact with the children and wrote in his statement (dated 22 May 2024) that he hadn’t spoken to them in about two years.[142]
[142] Ibid 332 [37].
The Tribunal has considered the best interests of each child applying the criteria in paragraph 8.4(4) of Direction 110. The Tribunal has given the best interests of each child individual consideration to the extent that their interests may differ (paragraph 8.4(3)).
The Tribunal has considered the nature and duration of the relationship between the children and the Applicant (paragraph 8.4(4)(a)). The first minor child (a son) was less than one year old when the relationship between the child’s mother and the Applicant broke down. The second minor child (a daughter) was born after the end of the relationship. Both children reside interstate with their mother. The Applicant’s evidence to the Tribunal was that he hasn’t had contact with the children for years. He expressed a desire to get back in contact with them.[143] In 2023, the Applicant sought permission from the prison to re-connect with his children with whom he stated he had not had contact with for ‘some six years’. [144] The request was accompanied by documents allegedly signed by the children’s mother consenting to the visits.[145] This request was reviewed by Mr Michael Breese, General Manager of Loddon Prison.[146] The request was ultimately denied because it transpired that the documents were fraudulently signed, and the mother did not consent to the Applicant having contact with either child.[147]
[143] Ibid.
[144] Ibid 76.
[145] Ibid 69-75.
[146] Ibid 77.
[147] Ibid 59-60, 77-9.
The Tribunal makes a finding that the nature and duration of the Applicant’s relationship with both his children is limited. The Applicant moved interstate following the birth of his second child and after he committed family violence offences against their mother. The Applicant does not appear to have a close relationship with either child, although he has expressed a desire to re-connect with them in the future.
The Tribunal has considered the extent to which the Applicant is likely to play a positive parental role in the future of the children (paragraph 8.4(4)(b)). The minor son is currently 8 years of age and the minor daughter is currently 7 years of age. Each of the children live interstate with their mother, and the Applicant has not had contact with the children whilst in custody, aside from a chance encounter during a video call with his mother.[148] The Tribunal is not aware of any formal Court orders in place but notes the Applicant’s contact with the children has been limited. The Tribunal does not consider that the Applicant is able to fulfill a positive parental role in the children’s lives at this present time or in the foreseeable future.
[148] Ibid 274 [37].
The Tribunal has considered the impact of the Applicant’s prior conduct on the children (paragraph 8.4(4)(c)). The minor son was less than one year old when the Applicant committed family violence offences against his mother. The minor daughter had not yet been born. The Tribunal notes that the Applicant’s family violence offending occurred at about the same time as the breakdown of the relationship. There is little doubt that the impact of the Applicant’s conduct on the children would be profound as it resulted in the breakdown of the family unit and the Tribunal takes this into account.
The Tribunal notes that the Applicant is currently physically separated from the children and has taken that into account (paragraph 8.4(4)(d)). Should the Applicant re-engage with his children in the future, the Tribunal considers that contact can be maintained in other ways, which is consistent with the level of contact of the Applicant has had in the past (such as video calls).
The Tribunal notes the children’s mother already fulfills a parental role in relation to both children and the Tribunal has taken this into account (paragraph 8.4(4)(e)).
The views of the children are not known (paragraph 8.4(4)(f)), but the views of the mother are. The mother has expressed a strong desire (via a third party) for the children to have no contact with their father, given the previous incident of family violence.[149]
[149] Ibid 78.
The minor son was exposed to family violence when he was less than one year old (paragraph 8.4(4)(g)). The Tribunal has taken this account.
There is no direct evidence before the Tribunal regarding whether either child has suffered any physical or emotional trauma arising from the Applicant’s conduct (paragraph 8.4(4)(h)).
The Applicant also has nieces and nephews however has not maintained close contact with them. During the Applicant’s evidence, he was unable to recall each of their names or when he had last spoken to them. The Tribunal has considered the matters raised at paragraph 8.4(4) in relation to the nieces and nephews. The Tribunal does not consider the nature and duration of the Applicant’s relationship with them as close. The parents of those children already fulfill a parental role in their children’s lives. Only the views of the Applicant’s sister (ML) are known in relation to her children.[150] ML states that her two older children love the Applicant and are always asking about him.[151] The Tribunal has taken the best interests of ML’s children into account, as well as the nieces and nephews based on the limited information before it.
[150] Ibid 343-6.
[151] Ibid 344 [11].
Conclusion on primary consideration 4
Given the Applicant’s very limited contact with his children and the circumstances of prior family violence, the Tribunal gives this primary consideration limited weight in favour of revoking the mandatory cancellation decision. Although the Tribunal has found that this primary consideration weighs in the Applicant’s favour, it does not outweigh primary consideration one which weighs very heavily against revoking the mandatory cancellation decision.
Primary consideration 5: Expectations of the Australian community
Paragraph 8.5 of Direction 110 provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a)acts of family violence; or
b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f)worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(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.
The Tribunal has considered the expectations of the Australian community as set out in paragraph 8.3 of Direction 110. The Tribunal must proceed on the basis of the Australian Government’s view as articulated in the Direction, without independently assessing the community’s expectation in a particular case.[152]
[152] FYBR v Minister for Home Affairs [2019] FCAFC 185 [66] (Charlesworth J), [91] (Stewart J).
The Tribunal has made a determination that the nature of the Applicant’s offending conduct is very serious. The Tribunal has noted the violent nature of his County Court offences, as well as the repeated instances of family violence. The Tribunal has also made a finding in regard to the Applicant’s risk of reoffending, noting that the Applicant is a high risk of reoffending if he were to resume illicit drug use, and cease his medication which unfortunately has happened in immigration detention. The Australian community would expect a person who has committed violent offences, who has had multiple chances to rehabilitate himself in the community, and who has committed repeated family violence offences to not hold a visa.
Conclusion on primary consideration 5
The risk to the Australian community of the Applicant reoffending is unacceptable. The Tribunal therefore makes a finding that the Applicant has breached the community’s expectations in a serious manner. Given the above circumstances, the Tribunal makes a finding that this primary consideration weighs heavily against revoking the mandatory cancellation decision.
OTHER CONSIDERATIONS
Other consideration 1: Legal consequences of a decision under s 501 or 501CA
Paragraph 9.1 deals with the legal consequences of a decision under s 501 or 501CA. This other consideration provides that decision-makers should be mindful that unlawful non-citizens are, in accordance with s 198, liable for removal from Australia as soon as reasonably practicable in the circumstances specified in that section.
This other consideration then goes on to consider non-citizens who are covered by a protection finding (as defined in s 197C of the Act), and those who are not.
Neither party has raised any claims in relation to this other consideration. There is no evidence that this other consideration is relevant to the Applicant’s circumstances. The Tribunal therefore gives this other consideration neutral weight in the balancing exercise.
Other consideration 2: Extent of impediments if removed
In regard to this other consideration, decision-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 is currently 39 years of age. He left Fiji as a five year old. The Tribunal notes that the Applicant currently has a diagnosis of a substance use disorder and schizophrenia. The Applicant did not report any physical or medical concerns in his most recent assessment with Dr Glowinski.[153]
[153] Exhibit R1, 370 [10].
The Respondent accepts that the Applicant will face some impediments if removed to Fiji given he has not lived there since he was a child.[154] The Applicant’s mother states that Fiji ‘is completely foreign’ to the Applicant and he has no close family there.[155] She states that he would have nowhere to live and would find it very hard to get a job to support himself.[156]
[154] Exhibit R2, 15 [90].
[155] Exhibit R1, 342 [25].
[156] Ibid.
The Applicant states he doesn’t have any family there and doesn’t speak the language.[157] He states that it would be ‘very hard’ to get a job and support himself.[158] He also states that it would be hard to get help for his mental health, as he doesn’t believe that there is much help for schizophrenia in Fiji and that ‘there is lot of stigma against people with mental illness.[159] The Applicant believes he would relapse into drug use if he was sent back to Fiji and he doesn’t know how long he would survive if this happened.[160]
[157] Ibid 332 [38].
[158] Ibid.
[159] Ibid.
[160] Ibid 332-3 [38].
The Respondent submits that the Tribunal is bound to consider the Applicant’s claim that his substance use disorder would constitute an impediment to removal.[161] The Respondent also submits that the Tribunal must also consider the Applicant’s schizophrenia and its treatment requirements, and whether this would constitute an impediment to his removal.[162] This claim has not been expressly raised by the Applicant, but it is alluded to as a potential impediment in the concluding paragraphs of Dr Glowinski’s report.[163]
[161] Exhibit R2, 15 [92] citing YNPX v Minister for Immigration and Multicultural Affairs [2025] FCA 49 [103].
[162] Exhibit R2, 15-6 [92].
[163] See in particular paragraphs 99 to 101 of that Report which is to be found at pages 380-1 of Exhibit R1.
To that end, the Respondent provided the Tribunal with the Department of Foreign Affairs ‘DFAT Country Information Report Fiji’ which is dated 20 May 2022.[164] Paragraph 2.13 of that Report deals with mental healthcare in Fiji.[165] The Report states with regard to mental health:
2.13 The law provides for public mental healthcare but, in practice, it may not be available. Some support is available from nursing stations, health centres, general practitioners and hospitals. A public psychiatric hospital, St Giles, is located in Suva. Sources told DFAT there was an inadequate number of mental health professionals to meet demand. Telephone counselling and mental health CSOs provide services, and online resources from Australia and New Zealand might be used by Fijians. Drug and alcohol services are available at St Giles. The US Department of State 2021 Human Rights Report describes St Giles as ‘underfunded’. Sources told DFAT that facilities and treatment are basic and medication might be unavailable.
2.14 Like many countries, including Australia, there can be a societal stigma against mental health conditions in Fiji. This may limit support options from family. These attitudes are less common among the wealthy and the more highly educated. In spite of these challenges, people with intellectual and mental disabilities are more likely to be cared for at home than in a medical facility.
2.15 Other services for mental health patients might be available. There is an increasing number of counsellors (who are not psychologists or psychiatrists) and some non-government organisations provide counselling services. In practice, counselling services are not available in more remote areas and there is a lack of mental health services generally.
[164] Exhibit R1, 127-53.
[165] Ibid 134-5.

The Tribunal acknowledges the challenges that the Applicant may face if removed to Fiji in regard to his mental health. The Tribunal has had regard to the Country Information and has taken into account the impediments the Applicant may face such as access to intensive drug and alcohol counselling and rehabilitation. Indeed, Dr Glowinski recommended an intensive treatment regime in Victoria which may include involuntary treatment under the Mental Health and Wellbeing Act 2022 (Vic) especially if the Applicant exhibits any sign of psychotic relapse in the community.[166] Such involuntary treatment includes long-acting injectable antipsychotic medications and/or admissions to supervised community residential psychiatric treatment facilities.[167] The Tribunal has taken into account that the Applicant may not be able to access the same level of treatment in Fiji as has been considered by Dr Glowinski in Victoria.
[166] Ibid 381 [100].
[167] Ibid.
The Tribunal has also considered the Applicant will likely face some impediments in establishing himself in Fiji and maintaining basic living standards, in the context of what is generally available to other citizens of that country.
The Respondent submits that this consideration weighs moderately to strongly in favour of revocation.[168] The Tribunal has considered the above, including the recommended treatment options proposed by Dr Glowinski, against the available Country Information. The Tribunal accepts as a general proposition that the Applicant will not receive the same level of care he is accustomed to in Australia. However, the Country Information does note that drug and alcohol services are available at St Giles (a public psychiatric hospital located in Suva), and that online mental health resources from Australia and New Zealand might be used by Fijians.[169] The Tribunal must consider the impediments the Applicant will face in establishing himself and maintaining his basic needs in Fiji in the context of what is generally available to other citizens (paragraph 9.2(1)).
[168] Exhibit R2, 16 [95].
[169] Exhibit R1, 134.
On balance, the Tribunal has decided to afford this other consideration strong weight in the Applicant’s favour. There is no question that the adequacy of mental health treatment available to the Applicant post-release is vital to him maintaining his sobriety and mental health. The Tribunal considers that this other consideration weighs heavily in favour of revoking the mandatory cancellation decision. Although the Tribunal has reached this conclusion, it has also taken note of paragraph 7(2) of Direction 110 which states that primary considerations should generally be given greater weight than the other considerations. The Tribunal has also taken into account the principles at paragraph 5.2 of Direction 110, in particular the principle at paragraph 5.2(7). It is stated there that decision-makers must take into account the primary and other considerations relevant to the individual case. It goes on to state that 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 the mandatory cancellation.
The Tribunal has considered the principles as set out in Direction 110 and makes a finding that the nature of the Applicant’s conduct, and the harm that would be caused if the Applicant’s conduct were to be repeated is so serious, that even strong countervailing considerations, such as the extent of impediments if removed, are not sufficient to justify revoking the mandatory cancellation of the Applicant’s visa.
Other consideration: Impact on Australian business interests
There are no known impacts on Australian business interests. This other consideration is given neutral weight in the balancing exercise.
Any other considerations
Paragraph 9(1) of Direction 110 is non-exhaustive. The Applicant, through his former legal representative, raised an overarching other consideration that ‘forcing [the Applicant] to leave his loving family in Australia with the possibility of never returning would:[170]
·Cause irreversible harm to his close family members;
·Deny [the Applicant’s] two Australian children the opportunity to have a relationship with their biological father;
·Force [the Applicant] to live in a foreign country with high levels of poverty;
·Possibly result in [the Applicant] relapsing into drug abuse.’
[170] Ibid 327.
The Tribunal has covered these claims separately in the paragraphs above. However, the Tribunal will address these claims to the extent they are relied upon collectively as an ‘other consideration.’
The Tribunal observes that there is little evidence of the ‘irreversible harm’ that would be caused to the Applicant’s close family members. The Applicant’s mother and sister provided a statement in support of the Applicant in May 2024, but neither was called upon to give evidence to the Tribunal, and there were no updated letters of support from any family member prior to the Tribunal hearing in April 2025. With regard to the Applicant’s children, this has been covered above. The children’s mother, based on the last known information, considered that it was not in the best interests of the children to have contact with the Applicant, given the previous instance of family violence. The Tribunal notes the Applicant’s own evidence that he has not had any contact with his children for years. If the Applicant were to be removed from Australia, contact could certainly be instigated/maintained by other means.
The claim of ‘forcing’ the Applicant to live in a foreign country has been considered in other consideration two, and the Tribunal has determined that other consideration falls strongly in the Applicant’s favour. Unfortunately, the ‘relapse into drug abuse’ appears to have already occurred within the controlled environs of immigration detention, therefore the removal of the Applicant from Australia is unlikely to be a precipitating factor in this regard. It is acknowledged that the Applicant may not receive the same level of intensive treatment in Fiji as proposed by Dr Glowinski in the psychiatric report.
The Tribunal gives this general ‘other consideration’ some weight in favour of revocation, but the weight attributed to this ‘other consideration’ is heavily outweighed by the primary considerations against revocation.
CONCLUSION
The Tribunal has concluded that the Applicant does not pass the character test by virtue of his ‘substantial criminal record’. The remaining issue for determination is therefore whether there is ‘another reason’ why the mandatory cancellation decision should be revoked. In determining this question, the Tribunal was bound to apply Direction 110 to the specific circumstances of the Applicant’s case.
The Tribunal has conducted an exercise of weighing all the relevant considerations individually and cumulatively. The Tribunal has determined that primary consideration 1 weighs very heavily against revoking the mandatory cancellation decision. Primary consideration 2 and 5 also weigh against revocation, with moderate weight being attributed to primary consideration 2 and heavy weight attributed to primary consideration 5.
Primary considerations 3 and 4 weigh in favour of revoking the mandatory cancellation decision. Other consideration 2 and the general ‘other consideration’ also weigh in the Applicant’s favour.
The Tribunal has attributed greater weight to primary consideration 1. This is consistent with the principles set out in paragraph 5.2 of Direction 110, regarding the safety of the Australian community, and nature of the harm that would be caused if the Applicant were to reoffend.
Weighing the relevant considerations as it was required to do under Direction 110, the Tribunal finds that there isn’t ‘another reason’ to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
It follows that the Tribunal affirms the decision under review.

Date of hearing: 10 April 2025

Applicant: In person

Advocate for the Respondent: Ms Catherine Oppel

Solicitors for the Respondent: Australian Government Solicitor

Date of hearing:	10 April 2025
Applicant:	In person
Advocate for the Respondent:	Ms Catherine Oppel
Solicitors for the Respondent:	Australian Government Solicitor