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

Dayadaya and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2456 (26 July 2023)
Division:GENERAL DIVISION
File Number: 2023/3041
Re:Mark Dayadaya
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION
Tribunal:Member Roger Maguire
Date of Decision: 26 July 2023
Date of Written Reasons: 10 August 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 27 April 2022 to cancel the Applicant’s visa.
..................................[SGD].................................
Member Roger Maguire
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class BB Subclass 155 (Five Year Resident Return) visa – where Applicant does not pass the character test – whether the power to cancel the visa should be exercised pursuant to section 501(2) – consideration of Ministerial Direction No. 99 – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Crimes Act 1914 (Cth)
Migration Act 1958 (Cth)
Youth Justices Act 1992 (Qld)
Cases
Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
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 Roger Maguire
26 July 2023
INTRODUCTION

Mr Mark Anthony Dayadaya (‘the Applicant’) is a 29-year-old man born in Philippines in December 1993. He first arrived in Australia in January 1997 and has remained onshore since.[1] The Applicant was granted a Class BB Subclass 155 (Five Year Resident Return) visa (‘the visa’) on 30 October 2009.[2]
[1] Exhibit 3, p 182.
[2] Ibid, p 167.
On 6 February 2017, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) attempted to notify the Applicant of the Respondent’s intention to consider cancellation of the Applicant’s visa (‘NOICC’) pursuant to s 501(2) of the Migration Act 1958 (Cth) (‘the Act’)[3] because the Applicant failed to pass the character test.[4] This notification was sent to the incorrect address as a result of which a further successful attempt was made to notify the Applicant of the NOICC on 9 September 2019. The Applicant was invited to make submissions within 28 days of receiving the notification.
[3] Ibid.
[4] Sections 501(6)(a) and (7) of the Act.
On 27 April 2022, a delegate of the Respondent cancelled the Applicant’s visa pursuant to s 501(2) of the Act (‘cancellation decision’).[5] The Applicant confirmed receipt of the cancellation decision on 3 May 2023.[6]
[5] Exhibit 3, p 18.
[6] Exhibit 1, p 181.
On 4 May 2023, the Applicant applied to this Tribunal for a review of the cancellation decision.[7]
[7] Exhibit 3, p 7.
Section 501(2) of the Act provides the Minister with a discretion to cancel a visa in certain circumstances:
(2) The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
Section 501(6)(a) of the Act relevantly provides the character test as follows:
Character test
6For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record as defined by subsection (7).
Section 501(7) of the Act relevantly provides:
For the purposes of the character test, a person has a substantial criminal record if:
...
(c)the person has been sentenced to a term of imprisonment of 12 months or more;...
The term “imprisonment” is defined to include any form of punitive detention in a facility or institution.[8]
[8] Section 501(12) of the Act.
Jurisdiction to review decisions under s 501 of the Act is given to this Tribunal by s 500(1)(b) of the Act. In exercising this jurisdiction, the Tribunal is obliged by s. 499(2A) to comply with any direction given by the Minister under s 499(1) of the Act. On 23 January 2023, the Minister relevantly issued Direction No.99 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA. Direction 99 is hereinafter referred to as “the Direction”.
By operation of s 500(6L) of the Act, when an application is made to the Tribunal for a review of a decision under s 501 of the Act and the decision relates to a person in the migration zone, then, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review in accordance with s 501G(1) of the Act, the Tribunal is taken at the end of that period to have made a decision under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) to affirm the decision under review. At the hearing, it was agreed that for the purposes of this review, and s 500(6L)(c), the 84th day is 26 July 2023.
Passages in bold within these Written Reasons represent emphasis added by the Tribunal.
Two victims of the Applicant also provided evidence. They are referred to respectively as Ms S and Mr R.
Exclusion of consideration of certain offending as a child
In considering this matter, the Tribunal has had regard for the recent High Court decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17 (‘Thornton’) to which the Tribunal was helpfully referred by Mr Morris. The essence of this decision is that where s 184(2) of the Youth Justices Act 1992 (Qld) provides that a finding of guilt of an offence committed whilst a child, without recording a conviction is not to be taken into account for any purpose, as s 85 ZR(2) of the Crimes Act 1914 (Cth) requires Commonwealth authorities in all circumstances and for all purposes to regard the offender as having never been convicted of the relevant offence, and to do otherwise is jurisdictional error. Accordingly, the Tribunal has excluded from its consideration all charges against the Applicant arising from conduct as a child within the scope of that decision.
Background facts
The Applicant was born in the Philippines in 1993,[9] and arrived in Australia in 1997 at the age of three years, and has never departed.[10] His adult offending began in 2012, and is recorded in the material.[11] The Applicant breached bail in 2012.
[9] Exhibit 3, p 5.
[10] Ibid, p 182.
[11] Ibid, p 41-44.
The Applicant had three sentencing occasions in 2013.
On 21 February 2013 he was dealt with for offences including: serious assault/resist/ obstruct police officer; three counts of failing to appear; two counts of committing a public nuisance; two counts of contravening a domestic violence order. He was sentenced to one month’s imprisonment suspended for twelve months, ordered to pay $1500 compensation, and placed on probation for twelve months. (The Tribunal notes that whilst the Applicant was under the age of 18 at the time of some of this offending, convictions were recorded in respect of all charges, and they are not therefore excluded from consideration by the decision in Thornton.
On 19 September 2013, the Applicant was convicted of possessing utensils or pipes and possessing dangerous drugs, he was fined $250. On the same day he was sentenced for trespass and receiving tainted property and was fined $500. Finally, he was charged with breaching a previously imposed probation order and the suspended sentence was increased for a further three months.
On 5 December 2013, the Applicant was convicted of driving without due care; unlicensed driving and failing to report an accident and fined $400.
The Applicant had two sentencing occasions in 2014.
On 19 May 2014, the Applicant was convicted of committing a public nuisance and sentenced to two months imprisonment. Furthermore, the Applicant was sentenced regarding the contravention of a domestic violence order and sentenced to imprisonment for four months. He was also found to have breached the extended probation order, and ordered to be imprisoned for one month. The total of these custodial sentences were ordered to be served concurrently. These were his first custodial sentences served in actual custody.
On 15 December 2014, the Applicant was convicted of possessing dangerous drugs and fined $400.
The Applicant had a further three sentencing occasions in 2015.
On 4 June 2015, he was convicted of going armed in a public place and breaching his bail, and fined $1,000.
On 15 June 2015, the Applicant was again convicted of contravening a domestic violence order, as well as common assault, two counts of wilful damage, and failure to appear. He was placed on probation for 15 months. On 7 April 2016, the court ordered that the common assault charge and two instances of wilful damage be domestic violence offences.
On 7 September 2015, the Applicant was convicted of committing a public nuisance, assaulting or obstructing a police officer, contravening a direction or requirement, and breaching a probation order. For these offences he received cumulative terms totalling six months’ imprisonment, as well as lesser concurrent terms. He had served 44 days in custody awaiting sentence, and was ordered to be released on parole on 24 September 2015..
On 7 April 2016, the Applicant had his only one sentencing occasion for that year. He was convicted and fined $400 for contravening a direction or order, and also convicted and fined $600 for contravening a domestic violence order.
On 18 October 2018, the Applicant was convicted of wounding (domestic violence offence) and two counts of wilful damage (domestic violence offence). He received his third custodial sentence when he was sentenced to 18 months imprisonment to be suspended after he had served 134 days. Extracts of the sentencing remarks made of Judge Morzone in the District Court of Queensland include the following:
“After work in the early hours of the morning on 30 October 2017, you and Mr R got into a drunken argument after you took offence at a derogatory comment he made about your mother. You smashed a bottle, a mirror, a coffee table and various drinking glasses in the lounge room. There was fighting that went on a little later involving further damage, including damage to a laptop. That is your offending in respect of count 1.
In the meantime, after [redacted by the Tribunal] arrived, you got a 13 centimetre bladed serrated knife from the kitchen, verbally threatened to kill the two, and pointed the knife at R. He grabbed and tried to take the knife off you. During this struggle, you cut his forearm, and that is the wounding offence. Later on, you got a sledgehammer from the shed and caused $5,404 worth of damage to [redacted by the Tribunal]’s car by using the sledgehammer to smash the windscreen, some side windows and making other marks on the body of the car. That is count 3.
…
Mr R needed hospital treatment initially and a further five more visits. There was a deep cut to his right forearm of about 10 centimetres long. There was a two centimetre cut to his head, bruising on his back and small cuts to his face as well as a blackened eye. He needed stitching under general anaesthetic and needed further treatment, including for an infection.
…
You have also breached your probation order in the past. You had a varied response to supervision then, and you seemed unmotivated, at that stage, to change and that is why the probation report tells me that you are unsuitable for probation, but that was still at a time of terrific instability for you before you could come to grips with what was going on with your mental health.
…
By the middle of this year, when you were reviewed by the psychiatrist, who wrote the report of March of this year, you were a changed person. You had gained through your effort – and through the time that you were in prison, co-operating with your treatment there – much better insight into your mental health and what causes it. You’ve been abstinent from illegal substances and you’ve complied properly with your medication regime, and although I’m guarded about your risk of reoffending, I’m only guarded to the extent that you stay away from drugs and alcohol in any excessive way.
…
Your sentence must punish you to a just extent in all of the circumstances that I’ve spoken of. It must also help with your rehabilitation. It has to stop you from offending like this again and also send a message to others, to stop them from offending like this. And I have to make it clear to you that this conduct is not acceptable. It’s denounced by the community. And I also have to protect the community from you harming Mr R and others, and I’ve looked at that risk of that harm and have to determine whether or not to send you to jail to protect the community from that risk, and as I have said, if you keep on going the way you are, the risk is moderate to low. I also take into account that your offending is domestic violence and that makes them more serious.”[12]
[12] Exhibit 3, p 46, lines 7-34; p 47, lines 10-14; p 48, lines 18-25; lines 41-47; p 49, lines 1-3.
On 2 October 2020, the Applicant was convicted of dangerous conduct with a weapon and placed on 18 months’ probation.
On 10 February 2022, the Applicant was convicted of contravening a domestic violence order and fined $450.[13]
[13] Ibid, p 68.
It emerged during evidence that the Applicant was also sentenced as recently as 25 May 2023 for breach of a domestic violence order involving one of his sisters, and received a nine month bond and a 3 months’ suspended sentence.
Evidence of rehabilitation
The Tribunal has before it a letter from Innisfail Youth & Family Care Inc dated 21 June 2023 which stated that the Applicant had attended all sessions and contributed positively to discussions learning safe and positive behaviours during an 8 week Men’s Domestic and Family Violence Program from 15 February to 22 March 2021.[14]
[14] Exhibit 10.
The Tribunal also has before it a letter from Workforce Australia dated 21 June 2023 from which the following is an extract:
“Mark has been an integral part of APM for the past 12months [sic], during which he has consistently displayed dedication, and reliability. Throughout his tenure, he has maintained a steady work history, exhibiting commendable punctuality and consistent attendance. He has demonstrated a strong commitment to his responsibilities. Beyond his exemplary work performance, Mark is known for his positive attitude and excellent interpersonal skills. He consistently maintains a professional and respectful demeanour while interacting with his case manager. His strong communication skills, combined with his ability to collaborate effectively with others, have contributed to a harmonious and productive job seeking requirements. We wholeheartedly support Mark's efforts to learn from this experience and move forward positively, as it is consistent with the person we have come to know and value.”[15]
[15] Exhibit 11.
Letters of support for the Applicant
The Tribunal has before it, and has had regard for statements from the Applicant[16], and statements from the Applicant and his partner, who is referred to as Ms S.[17] The Tribunal has also had regard for statements from the Applicant’s mother, Evelyn Dayadaya[18], his sister Wivlyn Dayadaya[19], Atleetza Smith[20], and Mr R[21].
[16] Exhibit 1.
[17] Exhibit 7.
[18] Exhibit 13 dated 3 July 2023.
[19] Exhibit 8 dated 27 May 2023.
[20] Exhibit 9 dated 3 May 2023.
[21] Exhibit 6 undated.
In an email to the Department[22] on 1 December 2019, the Applicant stated that he had a son he had never met. This child shall be referred to as “Child A”. No further details were provided in relation to Child A. In the same email he said he also had a daughter who is referred to as Child B, and had another child (the Child D referred to below) on the way, all with different mothers.
[22] G 2 p 74-75.
The Applicant recounted a troubled upbringing, with an unstable home life, without his parents, and living on the streets.[23] He described having only two biological children, his daughter Child B, and a son Child D . He also named a step-child H. (It emerged in other evidence that the Applicant’s current partner, Ms S is the mother of both Children D and H). He said that most of his offending involved “weed and meth”. He said that the wounding of Mr R was unintentional, and they remained in contact. He said he had woken up, and had bettered himself through engaging with mental health and community organisations.
[23] Exhibit 1.
The Applicant said he had come to Australia at the age of 3 years, had a church upbringing but the family business had suffered and the family broke up.[24] He described being a “straight A student” and what appears to have been a successful primary schooling of distinction including being school captain.
[24] Exhibit 7.
He said his secondary schooling “didn’t go so well”, and he was growing up in a broken home, and in and out of child safety. He was on the streets or staying in homeless shelters. He had partnered with a lady referred to as Ms X in these reasons. They had moved to Tully where Ms X became pregnant with his daughter, Child B. He and Ms X had many disagreements and “moved on from each other.”
The Applicant had met his current partner Ms S whilst living in Innisfail. He moved to Tully, leaving Child B with Ms X, and attended high school, until year 9, but “was not much of a student”.
Ms S bore a son Child H to another man in a short lived relationship, before partnering and residing with the Applicant and bearing him a son, Child D. They have now lived together for five years, and he has been a father figure to both Children H and D.
The Applicant said he had started drinking alcohol at a young age and graduated to using drugs. He blamed his bad decisions on drugs and being a heavy drinker. He said he had bettered himself by attending courses, and engaging with mental health workers, and being medicated for anxiety, depression and schizophrenia. He said he had changed from heavy use of drugs and alcohol. He said he had worked in a lot of companies and businesses, and nominated fast food, farming and construction.
His deportation would destroy his life and the people who care dearly for him. He expressed a desire to give Children D and B fatherly love and guidance, and he wanted to see Children B, D, and H grow up and have families of their own.
The Applicant’s mother said she was an Australian citizen, and the Applicant had been brought up “in a good way”.[25] She described him as a “good person, caring, loving and respectful.” She described his involvement with drugs and alcohol at an early age, and that he had struggled with his mental health. He had acknowledged his mistakes and asked for help to attend counselling and continue his medication. She made no specific mention of his daughters but said he was desirous of being a good father to his son and to his partner and family. The statement did not provide any particular insight into his other friends or relatives or ties to the Australian community.
[25] Exhibit 13.
Mr R spoke of the Applicant’s mental health issues.[26] They had lived together for a few years, and he had helped the Applicant obtain employment. Regarding his wounding, he described the incident as “one off”, and said they remained in contact. He said that over the years the Applicant had changed for the better, and had a good relationship and child with Ms S. He expressed concern that the Applicant would be sent to the Philippines where he knows no one. Mr R did not provide any particular insight into his other friends or relatives or ties to the Australian community.
[26] Exhibit 6.

In Exhibit 8, which comprises two emails bearing the same date, Ms Dayadaya said the Applicant was raised in a good Catholic family until he was taken away by force, and subsequently became mentally ill. She blamed his “toxic” associates for leading him to alcohol and drugs. She also did not provide any particular insight into his other friends or relatives or ties to the Australian community in either email. In the second email, Ms Dayadaya asserted that the Applicant had been forced to live with an evil man who had tortured abused and harassed him. No similar assertion was clearly made either by the Applicant of his mother in their statements before the Tribunal. Neither is the Applicant recorded as reporting any such episode in the International Health and Medical Services (‘IHMS’) records discussed below.[27] In the absence of supporting evidence, the Tribunal gives little weight to the assertions contained in, and confined to the second email.
[27] Exhibit 5.
Ms Smith described the Applicant as having “many fine qualities” and a good worker willing to provide for his family, and who “only drinks on special occasions”.[28] She had watched him raise her best friend’s son, who adores the Applicant and she described him as an “amazing father” for Child D. She expressed concern at financial and emotional damage that would befall his family if he is deported, but said nothing about his broader social and community ties.
[28] Exhibit 9.
IHMS Records
The Tribunal also has before it the Applicant’s IHMS records.[29] Those records disclose, among other things, a note of 8 May 2023 which recorded a history of mental health unit admissions with drug induced psychosis. He was described as “currently stable-declining to take oral antipsychotic medication”. He had no sign of mental agitation or perceptual disturbance. He was “not keen” to take oral medication as he felt stable. He was also, recorded on 2 May 2023 as refusing to take medication.
[29] Exhibit 5.
A note of 4 May 2023 recorded that he last had contact with his daughter B about three years ago. He had tried to hang himself while living with his flatmate in 2017, and had burned his arm repeatedly with cigarettes. His suicidal thoughts were well before his son was born. There was a family history of mental illness as one of his sisters whom he did not name had been diagnosed with schizophrenia. He had ceased having monthly depot opting instead for tablets. Precipitants for psychosis had been non-compliance with medication and or substance misuse. He had a history of violence and aggression when unwell. He had reported looking at himself in the mirror and seeing a dark side of himself where he looked like a devil and a good side where he looked grey. On 12 April 2023 he was reported as having recently (2 weeks prior) used methamphetamine and occasionally cannabis. It was also reported “imp. Functional in the community psychosis does not seem significant. He had no contact with his biological father and thought his mother was his sister until 2016. He was reported as entering foster care at age 6, ran away from carers and grew up living on the streets, and was involved with gangs. He had been a bright student but his studies were effected by childhood hardships.
Asked about his mood he appears to be recorded as saying “Picture it like a volcano.” He had had no suicidal thoughts in recent years. There were “no current mood, anxiety or psychotic symptoms” and he appeared to be a low risk of suicide or self harm.
The Applicant was reported as saying that he started having mental health issues in 2013 and was not using any substances at that time. His compliance with prescribed medication was described as “sporadic”. He was reported as having used methamphetamines as well as Ecstasy (MDMA). His self harm included burning himself and cutting himself with a knife.
Hearing
The hearing took place in Brisbane on Thursday 6 and Friday 7 July 2023. The Applicant was self-represented and Mr Oliver Morris of Clayton Utz Lawyers appeared for the Respondent.
The complete suite of written material forming the exhibit record is further particularised in the Exhibit Register Annexure attached hereto and marked “Annexure A”.
The Tribunal received oral evidence from the Applicant.
At the commencement of his evidence, the Tribunal explained to the Applicant the legal obligation of truthfulness which arose from his affirmation and stressed the importance of his evidence being truthful.[30] The Applicant confirmed to the Tribunal that he did not pass the character test and that his offending was accurately recorded in the G documents and the Respondent’s Statement of Facts, Issues and Contentions (‘SFIC’)[31].
[30] Transcript, p 8, lines 23-33.
[31] Transcript, lines 19-21.
The Applicant told the Tribunal that he suffered mental health issues, but was presently medicated, feeling well enough to proceed with the hearing, and not feeling in any way unwell, and had been so during his preparation for the hearing, and his mental health had not impacted the material he put before the Tribunal. The Tribunal invited him to inform it if he felt unwell at any stage of the hearing. In addition the Tribunal requested the representative for the Respondent, Mr Morris to assist in observing the Applicant’s health for the purpose of ensuring a fair hearing[32].
[32] Ibid, p 8, line 35-46; p 9, line 1-20.
The Applicant was cross-examined by Mr Morris and was referred to his Check Results Report date 6 September 2021.[33] He was referred to an episode of breach of bail on 23 October 2012. He accepted the accuracy of this record but could not remember how he had breached his bail. He was then referred to p. 43 of the same document and a list of offences on 2 February 2013. Once again he accepted accuracy, of the report, but could not recall details.
[33] Exhibit 3, pp 41-44.
He was then referred to a Departmental note regarding his convictions, and charge two of two sets of facts set wherein it was stated:
“On the 31st day of May 2011 Police were detailed to attend to a report of 3 males fighting in a front yard of a residence on [address redacted by Tribunal], Townsville. On arrival at the offence location Police took up with the resident who informed Police that 3 male persons had been fighting in the front of their yard and had left walking along [address redacted by Tribunal] towards [address redacted by Tribunal]. Police were also informed that one of the male persons was seen to hit a number of vehicles parked in the street as they continued to walk along [address redacted by Tribunal].
Whilst at this location Police observed damage to the front gate area of a dwelling which the informant stated was caused by the same male persons.
Police then conducted patrols and located the 3 male persons walking along [address redacted by Tribunal]. Police took up with these persons, once of whom is now the defendant before the court. Police were informed by the 2 males the defendant was in the company of that they were attempting to walk the defendant home as he was intoxicated and they described his behaviour as out of control. The 3 males stated that they had walked down [address redacted by Tribunal] where the defendant had become aggressive and argumentative at which time the defendant’s friends attempted to restrain him and calm him down. The defendant resisted their attempts and as a result damage was caused to a front gate of a dwelling. The defendant then proceeded to walk along [address redacted by Tribunal] yelling incoherently and was observed to hit a number of vehicles with his fists.
Whilst speaking with these person, the defendant was observed to be intoxicated, argumentative and very aggressive towards Police.
The defendant was subsequently arrested and transported to the Watch house where he was charged. PN: 60045462 Date: 17 September 2021”[34]
[34] Exhibit 3, pp 54-55.
After reading the relevant page, the Applicant said that the other two males were his friends, and agreed that they had tried to calm him. Whilst he could not remember details of damage to a gate or other matters recorded, he did not assert that it was incorrect.
The Applicant was able to remember an instance of assaulting a police officer which occurred on the same day as the incident with his friends.[35] Further details of this offence were set out at p 54 wherein it was reported in part:
“The complainant is employed by the Queensland Police Service as a Police Officer. On the 31st day of May 2011 Police were detailed to attend to a report of 3 males fighting in a front yard of a residence on [address redacted by Tribunal] Townsville. On arrival at the offence location Police took up with the residents who informed Police that 3 male persons had been fighting in the front of their yard and had left walking along [address redacted by Tribunal] towards [address redacted by Tribunal]. Police were also informed that one of the male persons was seen to hit a number of vehicles parked in the street as they continued to walk along [address redacted by Tribunal].
Whilst at this location Police observed damage to the front gate area of a dwelling which the informant stated was caused by the same male persons.
Police then conducted patrols and located the 3 male persons walking along [address redacted by Tribunal]. Police took up with these persons, one of whom is now the defendant before the court.
Whilst speaking with these persons, the defendant was observed to be intoxicated, argumentative and very aggressive towards Police. As a result the defendant was arrested. Upon being placed into the rear of the Police vehicle the defendant attempted to resist by refusing to place his legs inside the vehicle. In the process of Police attempting to close the vehicle door the defendant has kicked out towards Police. Police have stepped back at which time the defendant has leapt out from the vehicle towards Police screaming and attempting to strike the Police Officer with his closed fists. Police have then restrained the defendant by taking him to the ground. Whilst on the ground restrained the defendant has bitten the complainant on the right side of the scalp above the ear, causing the skin to break the complainant felt immediate pain.”[36]
[35] Ibid, p 43.
[36] Exhibit 3, p 54.
It was put to the Applicant that he was reported as being intoxicated, argumentative and aggressive, and he agreed that this was an accurate representation of his behaviour. He could not remember all of the allegations recorded[37], but he remembered biting a female police officer. He denied that he deliberately bit her and said it was an accident for which he apologised the next day. He said he was intoxicated on spirits at the time.
[37] Transcript, p 13, line 35-45; p 14, lines 1-47; p 15, lines 1-9.
The Applicant was referred to sentencing in the Tully Magistrates Court on 19 September 2013 when he was convicted of Trespassing and Receiving tainted property on 15 July 2013, and Possess utensils or pipes and Possessing dangerous drugs between 5 July 2013 and 8 July 2013.[38] Whilst he did not recall the details of the incident, he accepted the accuracy as recorded and said that he was using methamphetamine at the time[39].
[38] Exhibit 3, p 43.
[39] Transcript, p 15, line 43.
He was referred to a sentencing in the Mareeba Magistrates Court on 21 February 2013, but did not recall the circumstances of charges of Contravention of Domestic Violence Order on 23 October 2012, and again on 29 October 2012. Neither did he recall the incident of Commit Public Nuisance also on 29 October 2012[40].
[40] Ibid, p 16, lines 1-8.
The Applicant was asked to read the details of what was listed as “charge 1 of 2” which occurred on 29 October 2012 and read as follows:
“On the 2nd October 2012 in the Innisfail Magistrates Court a Domestic and Family Violence Protection Act 2012 Protection Act was made by the Magistrate in which the defendant Mark DAYADAYA was the respondent. The defendant was present in court and personally served a copy of the Protection Order. The aggrieved named in the order is [REDACTED].
The conditions of the Protection Order are that the respondent must be of good behaviour towards the aggrieved and not commit acts of domestic violence. There are also three additional conditions on the order. The first condition is that the defendant is prohibited from entering or remaining at [an address in] Innisfail or any address used as a residence by the aggrieved. The second condition is that the defendant is prohibited from contacting or attempting to contact the aggrieved. The third condition is that the defendant is prohibited from following or approaching within 20 metres of the aggrieved.
On the 29th or October 2012 at approximately 9:00pm the defendant has attended at [address redacted by Tribunal] Innisfail and has become involved in a verbal argument with the aggrieved. During the argument the defendant has begun threatening and verbally abusing the aggrieved. The defendant has then grabbed the aggrieved by her hair and pulled her off a chair. The defendant has continued to push and pull the aggrieved by her hair until separated by other persons at the address.
The defendant has then decamped and left the address and has later returned once police have arrived.
The defendant’s actions have contravened all of the conditions named in the Protection Order.”[41]
[41] Exhibit 3, p 56.
The Applicant told Mr Morris that he and Ms X were in a relationship at this time, and that she is the mother of his daughter who is referred Child B born in 2015,[42] some three years after the incident. The Applicant agreed that the incident occurred 27 days after the order was made. He agreed with the terms of the order, and the details of the conduct as recorded[43]. He further agreed that he had shown contempt for, breached, and disregarded the protection order. He accepted that she would have been very scared by his conduct.[44]
[42] Transcript, p 16 lines 34-46; p 17 lines 1-34.
[43] Ibid, p 17, lines 20-31;
[44] Ibid, p 18, lines 5-13; lines 23-30.
The Applicant was then referred to a further charge which arose on the same day, 29 October 2012, and asked to read what was listed as “charge 2 of 2”, which read as follows:
“After leaving the address of [redacted by the Tribunal] the defendant has approached a group of persons sitting on a nearby driveway at the intersection of [address redacted by Tribunal] Innisfail. In this group was several young children and elderly person.
The defendant has then picked up a large metal stake and begun swinging it in an aggressive manner towards the group of persons. The defendant also began yelling threats of abuse at the group of persons stating that he was going to harm them.
The defendant has then fallen over and dropped the metal stake. The defendant has then decamped the scene after he was advised that the police were arriving.
The actions of the defendant severely impacted on the safety and wellbeing of the group of persons.”[45]
[45] Exhibit 3, pp 56-57.
The Applicant said that he was “possibly” intoxicated at this time, but did not recall with what substance[46]. He agreed with the allegations that he had picked up a metal stake and started swinging it at people, and that several young children and an elderly person were in the group. He did not recall yelling threats[47]. He did not know why he did it and said he was “just not right in the mind.[48]” He was probably under the influence of alcohol, but there was no excuse for his conduct, and he agreed he had not been provoked.[49]
[46] Transcript, p 18, lines 24-28.
[47] Ibid, p 18, lines 36-47.
[48] Ibid, p 19, lines 8-9.
[49] Ibid, p 19, lines 12-19.
The Applicant was then referred to convictions recorded in the Mareeba Magistrates Court on 19 May 2014 for offences of Public nuisance and Contravention of Domestic Violence Order committed on 11 May 2014 for which he received sentences of two months’ and four months’ imprisonment respectively.[50] He was asked to read the details of those offences as follows:
[50] Exhibit 3, pp 42-43.
“The defendant in this matter is Mark Anthony Dayadaya a 20 year old male had been residing at [address redacted by Tribunal] Mt Garnet with his defacto/girlfriend (Aggrieved) and their 5 month old child. This address is the aggrieved’s mothers address.
On the 21st of February 2013 the defendant had been present in the Mareeba Magistrates Court when a Protection order under the Domestic and Family Violence Protection Act number O008641452 was varied with conditions that: 1. The respondent be of good behaviour towards the aggrieved and not to commit domestic violence against the aggrieved; 2. The respondent is prohibited from remaining at, entering or attempting to enter the aggrieved's usual place of residence situated at [address redacted by Tribunal] Innisfail or other residence; 3.The respondent is prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved and 4. the respondent is prohibited from following or approaching to within 20 metres of the aggrieved when the aggrieved ia at any place. The aggrieved in this matter is [redacted]. The Protection Order Varied Order expires on the 20th of February 2015.
On Sunday the 11th of May 2014 the aggrieved and the defendant have been at [address redacted by Tribunal] Mt Garnet where they have been residing together for approximately one week after the defendant's return from the Northern territory.
The defendant has been sleeping and when he awoke at approximately 4:00pm he has been in an abusive mood and started directing the aggrieved about the address. The aggrieved has feared for her welfare and the welfare of their 5 month old child and has rung police to have the defendant removed from the dwelling. The aggrieved has walked from the address with their child in a pram towards the corner of [address redacted by Tribunal]. The defendant has followed the aggrieved and been calling and swearing at her as she walked to this location.
On arrival at this address the defendant has caught up to the aggrieved and grabbed her by the throat, yelling at her and thrown her to the ground causing a large graze to her right knee and shin and scratch to her throat. The aggrieved has then gotten to her feet and went to retrieve the baby from the pram and the defendant has grabbed her "tablet" (Computer) and thrown it to the ground smashing it on the concrete. The female store owner has exited the store and told the defendant to quieten down and was then verbally abused by the defendant. She was threatened and returned into her store. The aggrieved has then attempted to again call police and the defendant has snatched her mobile telephone from her and thrown it to the ground smashing the screen and breaking the mobile telephone in half.
The aggrieved and store owner have been concerned for their safety and then both entered into the store with the child and locked the defendant outside until police arrived.
On arrival police observed the defendant standing a short distance to the east of the store on [address redacted by Tribunal] and that the aggrieved had exited the store and was distressed. The defendant was detained in the police vehicle whilst a domestic violence investigation was under taken. Police obtained digital versions of the events from the aggrieved and witness and photographed the injuries and damaged property. The aggrieved stated she did not want to make assault complaints. The defendant was advised that he was under arrest for breaching the domestic violence protection order and public nuisance. The defendant was conveyed to the Mareeba Watch House where he stated he had no reason for the incident occurring and didn't want to participate in an interview.
The arresting police made numerous attempts to identify a reasonable bail address but were unable to locate any address suitable except [address redacted by Tribunal] Tully (Grandmothers) and the defendant was unable to obtain transport to this address.
The defendant was held in custody to appear in the Mareeba Magistrates Court on Monday the 12th of May, 2014.”[51]
[51] Exhibit 3, pp 58-59.

The Applicant said that he could not remember the circumstances of this offending[52], but agreed that the aggrieved was once again X[53]. The Applicant agreed with all of the facts as alleged, and that he had repeatedly disregarded and breached the DVO and that B had been present and witnessed all of the events. He also agreed that X would have been afraid and traumatized by the events. He was not intoxicated at the time, and had breached the order in a very serious way, and committed acts of violence in front of Child B who was five months old at the time.[54]
[52] Transcript, p 19, lines 39-46.
[53] Ibid, p 20, lines 14-15.
[54] Transcript, p 20, lines 17-46, p 21, lines 1-47, p 22, line 1-35.
The Applicant agreed that this episode had been the “last straw” in their relationship and they had broken up after this[55]. He spent time in prison as a result of this, and engaged with a counsellor whilst in prison and a further counsellor after. He did not recall doing any courses in prison. The Applicant said that he did not take being sentenced as a “wake up call”, and agreed that he did not learn from being sent to prison[56].
[55] Ibid, p 22, lines 41-45.
[56] Ibid, p 23, lines 10-31.
The Applicant was asked to read a Department file note.[57] The Applicant agreed that Ms X was the person named as the aggrieved, and that he was the respondent named in those documents, which relevantly read:
[57] Exhibit 3, pp 60-61.
“The Department has received the following information regarding Mr DAYADAYA’s conviction for the court matter of the Magistrates Court of Queensland at Mareeba on 15 June 2015. 1)
Charge 1 of 3 [DFVPA 2012] 177(2) Contravention of Domestic Violence Order (on 28/12/2014) [redacted]:
The defendant is named as a Respondent and the victim is named as the Aggrieved in current Domestic Violence Order, which was varied at the Mareeba Magistrates Court on the 21st day of February 2013. This Protection Order contained the following conditions –
1) The Respondent must be of good behaviour towards the Aggrieved and must not commit domestic violence against the Aggrieved;
2) The Respondent is prohibited from remaining at, entering or attempting to enter the Aggrieved’s usual place of residence situated at [address redacted by Tribunal] Innisfail or other residence;
3) The Respondent is prohibited from contacting or attempting to contact or asking someone else to contact the Aggrieved;
4) The Respondent is prohibited from following or approaching or approaching to within 20m of the Aggrieved when the Aggrieved is at any place.
The Respondent was present in Court when this Order was varied and was subsequently served with a copy of the said Order.
At approximately 1700hrs, the defendant and the victim have entered into a verbal argument at the incident address of [address redacted by Tribunal] Mount Garnet. The defendant was present at this address after being invited by the aggrieved to attend to spend Christmas with her and their daughter.
During this verbal argument, the Respondent has pushed the victim several times to the chest with both hands. The defendant has then struck the aggrieved to the mouth with a closed right fist. At no time did the defendant have any permission or authority of assault the victim in any way.
The defendant has then grabbed the victim’s white Apple Iphone 4 and has thrown it against the ground and wall, causing such extensive damage to the phone that it became inoperable. At no time did the defendant have any permission or authority to damage this property. The victim has then pushed the defendant back several times. A short time later, the victim’s mother arrived, at which time the defendant has decamped on foot.
Police attended the incident address a short time later. Police were advised via VKR Cairns that they could hear a male person yelling in the background when the victim initially contacted them and they were unable to contact the victim back when they attempted to call her back after the call was terminated.
Police took up with the victim, who provided a version as above, which was recorded in official Police notebook H094411 and signed by the victim. Police then took several photographs of the damaged phone before conducting mobile patrols in an attempt to locate the defendant.
After approximately ten minutes of patrolling, Police located the defendant walking along the Kennedy Highway towards Ravenshoe. Police intercepted the defendant and spoke to him in relation to these matters.
The defendant made admissions to damaging the mobile phone as the victim continued to “push his buttons” and even though he tried to restrain himself, he finally snapped and threw the phone”[58]
[58] Exhibit 3, pp 60-61.
The Applicant was initially evasive in his recollection of aspects of this episode, but ultimately generally accepted the facts as stated. The Applicant agreed that this incident occurred after he and Ms X had broken up in May of that year. He agreed that Child B was present at the time, but he was not sure if Child B would have seen him push and punch Ms X. He agreed that this was the third recorded incident of his taking Ms X’s phone or tablet. There was no particular reason for this, but he agreed that it showed a pattern of behaviour. He accepted that in breaking the phone he had breached the order, and that he had a significant track record of breaching the order[59].
[59] Transcript, p 24 line 19-47; p 25, lines 1-47; p 26, lines 1-3.
Wounding incident
The Applicant was then questioned in relation to the wounding incident relevant extracts of which were recorded beginning at p 63 as follows:
“The Department has received the following information regarding Mr DAYADAYA’s conviction for the court matter of the Magistrates Court of Queensland at Innisfail on 18 October 2018.
1) Charge 1 of 3 [CC] 323(1) & 47(9) Wounding - Domestic Violence Offence (on 30/10/2017) BCS1704095682;
…
The defendant in this matter is Mark Anthony DAYADAYA, a 23-year-old male residing at an address known to Police.
Facts of charge one: Unlawful Wounding
The victim in this matter is, a 49-year-old male residing at an address known to Police. The victim and the defendant were in an intimate relationship when this incident occurred.
On the 30th of October 2017 at approximately 5.00pm Police from Tully received information about a disturbance occurring at Tully. The initial information received indicated that two male persons at the address where involved in a physical fight and were armed with knives.
Upon arrival at the scene Police observed the victim and the defendant within the yard of the dwelling. Police separated both parties and immediately noticed that the victim had sustained a deep laceration to his right forearm that was bleeding profusely.
Queensland Ambulance Service officers attended and provided first aid to the victim. Police spoke briefly with the victim about what had occurred before he was transported to the Tully Hospital. Police observed that the laceration was horizontally across the victim’s right forearm with the length of the cut approximately 6 to 8 centremetres in length and at its widest point around 1.5 centremetres wide. The laceration was observed to be bleeding profusely and it was immediately clear the wound had broken the victim’s true skin given the depth of the injury.
Police then spoke to the defendant and cautioned him in accordance with the Police Powers and Responsibilities Act which he stated he understood. The defendant stated he had been consuming alcohol during the day however understood the questions being asked by Police. The defendant provided a consensual breath test which returned a result of 0.128% with Police also forming the opinion that the defendant was not adversely affected by alcohol and understood the questions being asked.
Police then obtained an electronically recorded version of events where the defendant admitted that he had upturned a wooden table when arguing with the victim which caused the victim to fall over onto some smashed glass and injure his arm. The defendant denied that he had inflicted the injury to the victims arm and denied that any knives had been used during the incident.
The defendant was subsequently arrested for unlawful wounding and transported to the Tully Police Station. Police spoke with witness and obtained a formal statement from her about what had occurred.
[Redacted] confirmed that she had been present when the defendant and the victim commenced arguing which at first was only a small argument however escalated to the point where the defendant lost his temper and upended a large wooden table causing numerous items to fall and smash on the ground.
[Redacted] stated that the defendant then instantly became full of rage to an extent that she had never witnessed in a person before, she stated that he appeared to be full of anger and rage and she immediately became fearful of him. She stated that he then started to physically assault the victim and observed him punch the victim in the nose which caused his nose to bleed. [Redacted] stated that she was shouting at the defendant to stop his actions and was standing between the pair to try and stop the incident.
[Redacted] stated that the defendant then walked to the rear door of the dwelling and that she observed him remove two knives from a kitchen drawer. She observed the defendant then exit the house with the two knives held up out in front of his body with the blades facing outwards. At this time the defendant was observed to be still in a fit of rage and was screaming but [Redacted] could not recall what was said due to auditory exclusion caused by the stress of the situation.
[Redacted] stated that at this time the victim had somehow stumbled and was sitting on his bottom on the ground nearby. The defendant then walked to the victim’s position and placed his left arm around the victim's neck at which time the victim it got to his feet. The defendant and the victim physically struggled and [Redacted] as observed the victim trying to break free from the defendant’s hold.
[Redacted] has then observed the defendant move the knife in his right hand towards the victims right forearm. [Redacted] stated that the defendant then made contact with his right forearm in what she described as a “dragging motion” across his skin. [Redacted] stated that immediately after this occured she recalls seeing the victim bleeding heavily and realised that she needed to get away from the defendant to call the police. [Redacted] then located her mobile phone and called 000 after running from the address.
The victim stated that he had been involved in a verbal argument with the defendant which had caused a consensual physical altercation to occur between the pair. The victim stated but after being punched in the face by the defendant, the defendant has approached the victim and attacked him with a knife. The victim confirmed that the defendant used the knife to cut his right forearm causing the deep laceration and heavy bleeding.
The victim confirmed that he had been involved in a consensual fight with the defendant where both persons exchanged punches however at no time had he done anything that would justify the defendant then retrieving a knife and cutting his arm with the knife. The victim confirmed he did not give the defendant any permission or authority to cut his arm with the knife.
The victim confirmed that as a result of receiving medical treatment at the Tully hospital 13 sutures were needed to close the wound on his right forearm.
Police subsequently declared a Crime Scene at the address where a red handled serrated steak knife was located in the area where the incident took place. The blade was observed to have been snapped from the handle with the blade containing what appeared to be fresh blood on its surface consistent with having been used to wound the victim as described. Police also observed several large areas of what appeared to be blood on the ground near where the incident occurred.”[60]
[60] Exhibit 3, pp 63-64.
The Applicant confirmed to Mr Morris that the victim was Mr R, who had offered to give evidence on his behalf.[61] R was his flatmate and they had lived together for 7 years. The Applicant said he had lost his job that day and had taken alcohol and meth.
[61] Transcript, p 27, line 16.
The Applicant admitted using two serrated steak knives[62] (one in each hand) in the course of the altercation but denied that he had intentionally cut Mr R, and said that the knives had been intended to scare a lady (referred to in these reasons as “Ms L”, who was present, and that Mr R “copped a slash to his arm” whilst trying to disarm him.
[62] Ibid, p 28, lines 5-6.
Ms L was the lady who had fled the premises to call the police. The Applicant said she had been saying bad things about his mother, he thought the only way to stop her was using the two knives.[63] He admitted that as an act of revenge he had smashed her car using a sledge hammer after she had fled the premises. He admitted smashing two tennis ball size holes in the windscreen, and another tennis ball sized hole in the passenger window, and completely shattering the rear passenger windows, as well as causing two large dents in the passenger side door.[64]
[63] Ibid, p 29, line 12-15.
[64] Ibid, p 30, lines 31-35.
The Applicant admitted punching and breaking Mr R’s television and smashing the coffee table and bathroom glass mirror. He did this out of rage and anger.[65]
[65] Ibid, p 31, lines 8-10.
The Applicant accepted that the wound to Mr R was a very serious one, but continued to maintain that it was unintentional. He agreed that if he had no control over the knife it could have been more dangerous, and whilst it was his arm that whilst it was just his arm that was slashed, it could just as easily have been his chest neck or face, and that the outcome was not the worst it could have been. The Applicant agreed that it was fair to say that he had lost control at this point, and this was what led to the wounding.[66]
[66] Transcript, p 31, line 12 - 34.
The Applicant said he had learned a lesson from this incident about brandishing knives to threaten people, and said that seeing Mr R’s stitches and scars “did wake me up.[67]”
[67] Ibid, p 31, lines 39 - 43
The Applicant was then asked to read a further Department file note which was as follows:
“The Department has received the following information regarding Mr DAYADAYA’s conviction for the court matter of the Magistrates Court of Queensland at Tully on 2 October 2020.
1) Charge 1 of 1 [WA] 58(2) Dangerous conduct with weapon (on 15/01/2020) BCS1404634450:
The weapons used in this matter are a fishing knife with a black handle and twelve-and-a-half centimetre (12.5) blade which is sharp on one side. The other weapon is a cane knife which has a wooden handle with a thirty-four-centimetre (34) blade. The blade is thirteen (13) centimetres wide at the end with sharp leading edge and a small point of the back. The overall length of the cane knife is sixty-three centimetres (63).
At approximately 3:45pm on the 15th of January 2020, police were called to the defendant’s address code 2 (lights and sirens) in relation to a male person threatening people with knives. As police were driving out of the police station a male person was attending the station and police later discovered that this person was also reporting the incident (victim 1).
Upon arrival, police took up with the neighbour (victim 2) who called police about the defendant. The neighbour stated to police that the defendant was in his yard with a kitchen knife and a machete in each hand yelling at the neighbour and another male person (the male that had attended the station). The neighbour stated that the defendant was still in his house with his partner and a small child. Police immediately attended the defendant’s residents and identified themselves before calling him out. The front door of the residence opened and a female (the defendant’s partner) and a child came out hurrying past police. The defendant then appeared at the front door with both his hands behind his back and police immediately called for him to put his hands out several times before the defendant took one hand out with a phone in it and left the other hand behind his back. Police told the defendant to put the phone down and take his other hand out from behind his back. After repeated commands from police the defendant finally complied and was arrested.
Police spoke with both the victims who provided a version of events that led up to the arrival of police. Victim 1 intervened with the defendant who was at the time hitting the family pet dog with a stick which resulted in the defendant verbally engaging victim 1 and an argument erupting. Victim 2 could hear the defendant hitting the dog and the argument resulting in victim 2 attempting to intervene by telling the defendant not to abuse victim 1. The defendant has retreated into his house and returned to the front yard with both the weapons in each hand and continued to verbally abuse victim 1 and victim 2. Victim 2 has called 000 and victim 1 has returned to his vehicle with the intention of attending the police station to report the incident. The defendant was transported to Cairns Base Hospital where he was unarrested in order to undergo medical treatment.
In the morning of 27/01/2020 police located the defendant at a residence in Tully and he voluntarily accompanied police to the station to take part in an electronic record of interview. During the interview the defendant stated that he had been at the pub drinking and playing the pokies early on the day of the incident. The defendant then came home and heard the dog continuously barking so he went Attachment D5 G2 66 outside and found a stick to hit the dog with. The defendant stated that he had hit the dog twice before victim 1 intervened which angered the defendant. The defendant then stated that victim 2 became involved which angered him further resulting in the defendant obtaining what the defendant called a fishing knife and cane knife from inside the house. The defendant came back outside with the weapons and continued arguing with the victims asking them to come into his yard. Police asked the defendant what his intentions were with the knives and the defendant stated “to scare them”.
The defendant was issue with a Notice to Appear to attend Tully Magistrates Court on 20/02/2020 at 9:30am. PN: 60045462 Date: 17 September 2021”[68]
[68] Exhibit 3, pp 66-67.
The Applicant recalled this episode, and offered no excuse for his use of the weapons.[69] He had been at a hotel drinking, was intoxicated, and had been angered by a barking dog, and hit it with a stick.
[69] Transcript, p 32, lines 4-12.
Reminded of his earlier evidence to the Tribunal that he had learned a lesson from that incident about using knives to threaten people, he agreed that he had not learned that lesson, and acknowledged the similarities in the two incidents.[70]
[70] Ibid, p 33, lines 44-46; p 34, lines 1-11.
He agreed it was that the cane knife was a big knife with a spike on the end. There was no excuse for grabbing the knives. He said he had not learned the lesson of using a knife in the previous offence. He acknowledged that he had intended to scare them, just as he had intended to scare Ms L. He acknowledged the similarities in the two incidents.
The Applicant’s partner and son Child D were at home, and ran from the house. He accepted that this was conduct consistent with being afraid, and that it was entirely understandable for people to be afraid in those circumstances.[71]
[71] Transcript, p 34, lines 25-33.
The Applicant was then asked to read a Department file in the material, regarding a Contravention of a Domestic Violence Order, details of which were as follows:
“The Department has received the following information regarding the issuance of a Notice to Appear in the Tully Magistrates Court on 20 January 2022.
1) Charge 1 of 1 [DFVPA2012] 177(2)(b) Contravention of Domestic Violence Order (on 02/01/2022) BCS2200019434:
The Defendant/Respondent is Mark Anthony Dayadaya.
The Victim/Aggrieved is [redacted] .
The defendant and victim are in an intimate personal relationship and reside together at [redacted] Tully. The defendant and victim have a six-month-old baby together who also lives at the address. There is a current domestic violence protection order in place naming the defendant as the respondent and the victim as the aggrieved. The order was made in the Tully Magistrates Court on the 12/03/2020 and is in force for 2 years expiring 12/3/2022. The defendant was present in court and served a copy. The order contains mandatory conditions only.
On the 2nd day of January 2022 at about 1:00am the victim has called '000' where the operator heard a distressed female with a male voice in the background before the phone was disconnected. The operator tried to recall the phone five times with no answer.
At about 1:20am Police from Tully have attended [redacted] Tully where they observed the victim to be upset and crying holding her baby. The victim stated to Police that she had been arguing with the defendant since about 9:00pm after he got home from a friends place where he was drinking. The victim states that the defendant was accusing her of cheating and has grabbed between her legs before saying that she smelt like a condom. The victim has told the defendant to leave leading to the defendant demanding to take their baby with him. The victim stated that at one stage the defendant has tried to take the baby while she was breastfeeding. The victim has tried to call Police before the defendant grabbed her phone and walked away with it. A short time later the defendant returned the victims phone and drove from the address. Police drove the victim and her baby to a place of safety.
At about 5:30pm on the 2nd day of January 2022 Police from Tully attended where they observed no one home. As Police left the address the defendant was driving into the street. The defendant stated that the victim had given him permission to come home to sleep. When questioned about the previous night’s events the defendant corroborated what the victim had told Police in less detail and said that it was more personal business between them. When asked why he took the victim’s phone away when she tried to call for help, the defendant stated that he didn't think that Police were needed. The defendant initially could not understand why the victim would call Police when he was trying to drive from the address with their baby while intoxicated but later admitted an error in his judgement.
The defendant was issued with a Notice to Appear in the Tully Magistrates Court on the 20/01/2022.
Mr DAYADAYA was charged with contravention of domestic violence order. On 10 February 2022 in the Magistrates Court of Queensland, he was convicted and fined $450. PN: 60045462 Date:”[72]
[72] Exhibit 3, p 68.

The Applicant acknowledged that he was convicted and fined $450 in respect of this incident[73] which involved his present partner Ms S, and their baby, Child D. He agreed that he had been trying to take Child D while she was breast feeding him. He had grabbed her phone because he wanted to stop her calling the police. He accepted his conduct was a breach of the protection order, but he still told police this was a personal matter. He had no answer as to why he accused her of cheating. He accepted that this was the fourth incident of taking a phone or tablet from a partner. He accepted that taking a person’s phone is to control who they contact. He accepted that in all four incidents he wanted to stop them contacting police.
[73] Transcript, p 34, lines 39-40.
The Applicant accepted the facts as recorded,[74] and that he had breached the DVO, and taken her phone with the intention of controlling whom she contacted, and that this had been his intention in all four such instances.
[74] Ibid, p 36, lines 6-45; p 37, lines 1-25.
The Applicant said that the last time he went to court was on 25 May 2023 to plead guilty to a breach of a domestic violence order protecting his (unnamed) sister, and he was not allowed to enter her address. He breached the order by (apparently) attending there and having an argument. He said there was nothing physical involved and he received a nine month good behaviour bond and a three month suspended sentence[75].
[75] Ibid, p 35, lines 14-30.
The Applicant was referred to a document in the material,[76] a letter dated 9 December 2019 he had sent to the Department in response to its letter of 19 November 2019.[77] He was aware at the time that the Department was considering cancelling his visa, and had stated that he was a “changed man”, and confirmed that he meant that when he wrote it.[78]
[76] Exhibit 3, pp 176-177.
[77] Ibid, pp 175-175.
[78] Transcript, p 38, lines 5-17.
He was reminded that the threat with the cane knife occurred about a month later, and he agreed that his actions did not reflect the change he had expressed.[79]
[79] Ibid, p 38, lines 19-28.
The most recent incident with Ms S was also after he wrote to the Department, as was the episode with his sister. He agreed that despite what he had said in his letter he had continued to offend in a way quite similar to what he had done before.[80]
[80] Ibid, lines 30-38.
The Applicant was sentencing remarks of Judge Morzone who had stated on 18 October 2018:[81]
“By the middle of this year, when you reviewed by the psychiatrist who wrote the report of March this year, you were a changed person. You had gained, through your effort and through the time that you were in prison, cooperating with your treatment plan, much better insight into your mental health and what causes it. You’ve been abstinent from illegal substances, and complied properly with you medication regime. And although I’m guarded about your risk of reoffending, I’m only guarded to the extent that you remain strong and determined to stay away from drugs and alcohol in an excessive way.”[82]
[81] Ibid, p 39, lines 10-20
[82] Exhibit 3, p 48.
The Applicant was reminded that those remarks were delivered on 18 October 2018 after he had seen the psychiatrist who said he was a changed person. It was after his Honour’s remarks that he threatened his neighbour with two knives. The Applicant agreed it might be difficult to accept that he had rehabilitated as he had reoffended since previous rehabilitation efforts.[83] He agreed that in viewing him as a changed man Judge Morzone was giving him a second chance.[84]
[83] Transcript, p 39, lines 24-36.
[84] Ibid, p 39, lines 43-44.
The Applicant was referred to an eight week Domestic Violence course he had undertaken in early 2021.[85] He said that he had done it in good faith and had felt it helped him to rehabilitate. He accepted that this was society giving him a third chance, and since then, there was the incident with his partner and the incident with his sister. He agreed that the course did not prevent him from engaging in further domestic violence. He agreed that he was now asking for a fourth chance by seeking to have the present decision set aside[86].
[85] Exhibit 10.
[86] Transcript, p 40, lines 25-45; p 41, lines 1-3.
The Applicant accepted that he has a problem with alcohol. He had slowed down his drinking but not given up. He accepted that he has pled guilty to a large number of bail and other orders and had shown disregard for them and disrespect for the courts which issued them. He also accepted that he had breached a number of DVOs and disrespected the courts and the purposes for which the orders were issued, i.e. to protect vulnerable people.[87]
[87] Ibid, p 41, lines 18-47; p 42, lines 1-8.
The Applicant said that he is currently on medication and takes it by injection Depot once a month. He will be on this medication for the rest of his life. He has been on it for years. He was on it at the time of his offending with his sister. He accepted that his medication compliance has been patchy, and that he is a higher risk of re-offending if he does not take his medication and that he has been non-compliant in the past. Outside detention he would have to attend a Mental Health clinic to get the injection. The matter would be in his hands.[88]
[88] Ibid, p 43, line 30-47; p 44, lines 1-30.
Children
The Applicant told the Tribunal that his Child B was born in 2013, and lives with her mother. He last saw her in person for her birthday and Christmas, about three years ago. He had not spoken to her by phone or otherwise conversed with her since. He does not pay child support for Child B[89].
[89] Ibid, p 45, lines 21- 45.
The Applicant’s son, Child D lives with him. He is 2 years old. He contributes to his upbringing financially. As a result of being in prison he has missed a ‘decent chunk” i.e. a couple of months of his life. He agreed that Child D has been exposed to some “pretty bad behaviour” on his part including family violence. He intends to be a good father for Child D[90].
[90] Ibid, p 45, line 4; p 46, lines 1-22.
The Applicant said that he has no other children but he cares for his partner’s eight year old Child H as if he were his own. He plays a significant role in his life. He is 8 years old. Child H has also been exposed to his bad behaviour including family violence.[91] He contributes financially to Child H’s upbringing and is an emotional support. Child H’s biological father recently passed away. He would like to be a father figure to Child H in the future[92].
[91] Transcript, p 46, lines 24-44.
[92] Ibid, p 47, lines 15-26.
A Child J is not his son, but was the child of a former partner[93].
[93] Ibid, p 46 line 46-47; p 47, lines 1-13.
Ties to Australia
The Applicant told the Tribunal that he has lived in Australia since he was three. He was educated here until year 9 at Tully State High School. He has had a number of jobs in relation to construction, and fast food jobs. He has also done some farming work. His most recent job was fruit picking lychees. There have been significant patches when he has been unemployed. He has former work colleagues who are friends. He has his mother, sister, her partner, and his partner in Australia. He has another sister and family members. Most are citizens and the rest are permanent residents.[94]
[94] Ibid, p 47, line 30-47; p 48, lines 1-40.
The Applicant was asked about what would happen if he is not successful in this application. He said that he only speaks English, but can partly understand Filipino. He does not know anyone in the Philippines but does have a brother a sister there whom he has never met. He holds a white card for work in the construction industry. He has not checked if his medication is available in the Philippines.[95]
[95] Ibid, p 48, line 5-47; p 49; p 50, lines 15-20.
Closing submissions
In his closing submissions Mr Morris relied upon the Minister’s SFIC. He submitted that Primary consideration 1, protection of the Australian community, had to weigh very heavily in favour of cancellation. The applicant’s offending viewed cumulatively, was extremely serious. It began with traffic offending and escalated. There were multiple instances of serious domestic violence, including family violence, culminating in the 2018 conviction for unlawful wounding. Subsequent to that conviction, there were further convictions including one that related to the brandishing of the knives, and domestic violence offending against Ms S, and the most recent offending with respect to the order in relation to the applicant’s sister.
The other notable feature of the applicant’s offending, is the use of weapons in the wounding offence and the threatening of the neighbours. There was significant similarities between the two incidents. In both cases, the applicant’s evidence was that the intention of grabbing the knives was not to use them, but to scare people with those knives. As demonstrated perfectly well by the wounding offence, using a knife to scare somebody is an act that is intrinsically dangerous, and it is an act that is liable to escalation, and that’s exactly what happened in that offence.
The applicant’s evidence was that he didn’t intend to cause that wound, and it was a stroke of good luck that the knife cut only Mr R’s arm, and not somewhere that could have led to more serious injury or even fatality.
Mr Morris further submitted that the use of knives in crime, whether for the purposes of intentionally stabbing or slicing somebody, or just to scare somebody, asked the community to essentially play a form of grim lottery, where the outcome could be something as little as a scratch, and it could be something as devastating as a fatal injury. He submitted that this was not a lottery that the community should be prepared to play.
Regarding the Applicant’s risk of reoffending, Mr Morris submitted that the evidence, allowed no confidence that the applicant will not reoffend. The applicant had undergone the rehabilitation of several occasions previously. The Applicant has presented evidence of being a changed person, but subsequently relapsed into reoffending. In 2018, Judge Morzone commented on the applicant’s rehabilitation, based on evidence from a psychiatrist to the effect that the applicant was a changing person. Subsequent to that, there was a strikingly similar form of offending, where the applicant brandished knives at his neighbour. Whilst he had no intention of using them to inflict injury, that was the same when he wounded Mr R.
The Applicant had, in good faith undertaken an eight week intensive family violence rehabilitation course, in early 2021. Despite this, he went on to commit two further acts of family violence.
Mr Morris submitted that the applicant accepted that his risk of reoffending was tied to his compliance with his medication regime. While the applicant is in detention, his medication can be he can essentially be imposed on him. Left to decide for himself in the community, the applicant accepted that he had a long history of medication non-compliance.
Mr Morris submitted the Tribunal had real cause to doubt whether, if released into the community, the Applicant would maintain his medication compliance, and this further lifted the risk of re-offending.
Mr Morris submitted that the Applicant accepted that he had a problem with alcohol. He was intoxicated for much of his offending. He had not been able to give up alcohol completely. He had previously tried to cut down drinking, and it hasn’t stopped him from reoffending.
The nature of the risk presented was serious, and the risk of it manifesting was potentially quite high, and unacceptable. Having regard to the protective nature of this jurisdiction, primary consideration 1 ought to weight very, very heavily in favour of a cancellation.
Primary consideration 2 added further significant weight to cancellation.
Primary consideration 3 weighed significantly against cancellation. The Applicant had lived in Australia since he was three years old. He spent, essentially, all of his formative years in Australia, he was educated in Australia, he has worked in Australia, his family lives in Australia, he has friends from his previous employment in Australia. All of those are real ties to Australia, and all of those ties ought to weigh significantly against cancellation.
Regarding primary consideration 4, the best interests of children, Mr Morris submitted the applicant had not seen Child B for about three years, and did not contribute financially to her upbringing. The best interests of Child B should not attract a very great deal of weight. He submitted that greater weight, should be attributed to interests of Child D in particular, the applicant’s biological son. The Applicant, before he was taken into detention, lived with Child D and with Child D’s mother Ms S. The Applicant had expressed the intention to remain as a father figure for Child D, and to contribute to his upbringing, as he has been doing so far. Some slight tempering needed to be applied to that weight because, Child D had been exposed to the applicant’s offending, including family violence offending.
Child H was in a sense, in the position of a stepson. The applicant had contributed financially to Child H’s upbringing, and intends to do so in the future, as well as to provide a father figure for Child H whose biological father has passed away. However, Child H had also been exposed to family violence offending, and this moderated the weight to otherwise be attributed to Child H’s best interests. Mr Morris accepted that primary consideration 4, should weight significantly against cancellation.
Primary consideration 5, was to be applied normatively. There was no scope for consideration for what the community’s expectations actually are. The Tribunal should give effect to the expectations as expressed in Direction 99 itself. This case involved family violence offending, offending against women, and significant risk of further reoffending. These factors enhanced the weight to be attributed to primary consideration 5, which should weigh very heavily in favour of cancellation.
Turning to the other considerations, non-refoulement issues were not raised on the evidence.
Impediments that the Applicant would face, if returned to the Philippines, were significant. The Applicant speaks English, an official language of the Philippines, but it is not the only official language. The Applicant could not speak other languages spoken. The Applicant would face significant language impediments.
The Applicant would also face impediments with respect to his mental health. The Applicant, does have serious mental health conditions for which he is receiving medication in Australia which may, or may not, be available in the Philippines. Even if it is available in the Philippines, it would not be as available as it is in Australia, and the cost of it is unknown.
Mr Morris agreed with a suggestion by the Tribunal that even if he goes back to the Philippines and tries diligently to maintain his mental health, he simply might not be able to, despite his best efforts.
Mr Morris submitted that the Applicant does not really know anyone in the Philippines, although he does have a brother and a sister there.
The Applicant was otherwise fit and of working age and should be able to find employment there.
As this is a matter under s 501(2) of the Act, the question for the Tribunal is whether it should exercise the discretion to cancel the Applicant’s visa.
Mr Morris submitted that primary considerations 1, 2 and 5 all weighed, very heavily in favour of cancellation. Primary considerations 3 and 4, and the impediments other consideration, weighed significantly against the cancellation. The ultimate weight in this case had to be attributed to the protection of the Australian community, because the risk that was posed was one that was unacceptable.
In his closing statement, the Applicant said that he was 29 years of age, and had three children in his care with his partner, Ms S, in Australia. He had a lot of support from family members who reside in Australia. He said he would continue to stay engaged with his mental health case manager, who would assist him in re-engaging with a psychiatrist, who would continue to help him keep medicated by monthly depot shots, in support of my schizophrenia, paranoia, anxiety and depression.
He said he would also be seeking help from the Tully Support Centre, and reconnect with any other rehabilitation such as courses, programs regarding drug and alcohol, family domestic violence and anger management to further better himself.
He said that he wanted and needed to change my character to fit in with the Australian society, as his past actions had been very disappointing and to prevent future reoffending.
He planned to gain full time employment to support himself, partner and family. He said he enjoyed working a lot as it keeps him “in line”, and keeps him out of trouble. He said that he understood that by not taking his medication with his mental health problems it would cause him to fail.
The Applicant said that his fear of being deported back to the Philippines is that he does not know the culture or systems or his siblings or if they can assist him with his mental health issues. He feared that this would be greatly detrimental to his well-being and state of mind. If he is not allowed to remain here in Australia, he will not be able to support his children and partner emotionally, mentally, physically and financially.
The Applicant said that he was sincerely remorseful for his actions and past conduct, and if granted a second chance to remain in Australia, will prove his rehabilitation and personal growth to his family, loved ones and society.
Credibility of the Applicant
In assessing the credibility of the Applicant, the Tribunal has had regard for the fact that he lied to Police regarding the wounding incident, first claiming that Mr R had fallen over and injured himself. He further denied having caused the injury to Mr R’s arm, and further denied that any knives had been used during the incident. The contemporaneous evidence as recorded by Police was that Mr R said that the Applicant had attacked him with a knife and the other witness had reported seeing the Applicant perform “a dragging motion” across Mr R’s skin.[96]
[96] Exhibit 3, pp 63-64.
The Applicant also lied to the Police when he said that he had punched L’s car when he had in fact used a sledgehammer on it.[97]
[97] Ibid, p 54.
The Applicant’s past claims, such as that made before Judge Morzone and that made in correspondence to the Department about being a changed person, have not withstood the test of time.
Before the Tribunal, he made a similar claim about having learned lesson from the wounding incident but it was abandoned within minutes of being made.
It is clear from the remarks of Judge Morzone that the wounding of Mr R was preceded by a threat to kill him made by the Applicant who, on his own evidence was armed with two steak knives. Before the Tribunal, the Applicant claimed that the wounding of Mr R was an accident, but that assertion is convincingly contradicted by the evidence referred to, and is rejected. Likewise his evidence before the Tribunal that he “accidentally” bit the scalp of a female police officer is rejected as preposterous.
Moreover, the Applicant’s claim before the Tribunal of being consistently medicated whilst in detention is at odds with the IHMS records referred to above.
The Tribunal finds that the Applicant has made false statements in evidence before the Tribunal, and his evidence is rejected as unreliable save to the extent that it is expressly or implicitly accepted in these reasons.
The Tribunal now turns to a consideration of Ministerial Direction 99.
MINISTERIAL DIRECTION NO 99
Section 499(1) of the Act states:
1The 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 of those functions; or
(b)the exercise of those powers.

The Applicant’s parents are resident citizens. His mother gave little insight into how his deportation would impact her, and his father did not provide a statement. The Tribunal nevertheless accepts that in most circumstances, enforced separation from a child is a deeply painful and personal process for any parent.
The Applicant’s sister Wivlyn, an Australian citizen, has provided statements which give little insight into how his deportation would impact her. The Tribunal nevertheless accepts that if she was motivated to provide him with a statement, she feels attachment to him and is prepared to support him in his efforts to stay.
The Tribunal therefore finds that the Applicant’s links to his parents and siblings weigh heavily in favour of not cancelling the Applicant’s visa.
The Applicant has three biological children by different mothers, including Child A whom he has never met,[132] and whose name he did not provide.
[132] Exhibit 3, p 75.
The Tribunal has no evidence as to the age or circumstances of Child A. The Tribunal assumes for the purposes of this decision that Child A is an Australian citizen or permanent resident and will be under the age of 18 years at the time the decision is made. There is very little evidence pertaining to Child A, other than the fact that the Applicant has never met him. No mention has been made of financial support by the Applicant for Child A. The Tribunal infers from all of this that the Applicant has hitherto had no contact with Child A, and played no meaningful role in his life and his ties to Child A are minimal. There is no evidence of impact one way or the other on Child A should the Applicant be deported. The evidence is therefore insufficient to enable the Tribunal to make a finding as to any impact on Child A. The Tribunal therefore gives the impact on Child A neutral weight.
There is no evidence before the Tribunal as to how the Applicant’s departure will impact on Ms X or Child B. There has been no contact between the Applicant and Child B for several years, and the Applicant does not contribute financially to Child B’s support. The evidence as to the impact on Ms X and Child B of the Applicant’s departure is not sufficient to enable it to make a finding as to the respective impacts on either of them. The impact on each is therefore given neutral weight.
The Tribunal accepts that the Applicant has strong ties to his partner of five years Ms S, and Child D, as well as the Applicant’s stepson, Child H. All three will be heavily impacted by an adverse decision as it will result in the loss of a partner and father figure.
Ms S will be left as a sole parent, with less financial support, and quite likely minimal other support from the Applicant. This will undoubtedly be a challenge for her. She will face her personal emotional strain of losing a partner of five years. She will also face the challenge of filling the emotional financial and generally supportive role played by the Applicant in the lives of Child D and Child H. Child D will be left without his biological father, and that will almost certainly heavily impact on him emotionally and psychologically, particularly as he grows older. Ms S will also be deprived of the Applicant’s financial and emotional support in raising Child H. The Applicant has been a father figure to Child H, and in consequence Child H may well suffer in a similar way to D by the forced separation. Although there is the possibility for Child D and Child H to maintain contact with the Applicant via video link, the Tribunal accepts that such contact is vastly inferior to face to face and hands on contact. The impact on Ms S, Child D and Child H weighs very heavily in favour of not cancelling the Applicant’s visa.
Conclusion paragraph 8.3(1)
Consideration of paragraph 8.3(1) of the Direction weighs very heavily in favour of not cancelling the Applicant’s visa.
Consideration of paragraph 8.3(2):
The Applicant has three biological children, Child A, Child B and Child D who are resident citizens. He has a stepson, Child H who is a resident citizen.
The Applicant has never even met Child A, and played no role in his life. His only tie to Child A appears to be biological. Other than that there is no evidence before the Tribunal so as to allow an evaluation of the ties between Child A and the Applicant, and the Applicant’s ties to Child A are given neutral weight.
The Applicant has not had contact with Child B for several years, and plays no present role in her life, and he appears to be resigned to that situation. There is insufficient evidence before the Tribunal so as to allow it to evaluate the ties between Child B and the Applicant, and the Applicant’s ties to Child B are given neutral weight.
The Applicant has a good fatherly relationship with the Child D, and is keen to continue that relationship. The Tribunal accepts that Child D would likewise wish to continue the relationship, and that if the Applicant is to be deported, the Child D will suffer emotional upheaval, and may well suffer long term emotional hardship as well as diminished financial support. Child D is likely to face difficulty maintaining meaningful contact with the Applicant should he be deported.
The Applicant’s ties to the Child D weigh heavily in favour of not cancelling the Applicant’s visa.
Although the Child H is not the Applicant’s biological child, the Tribunal accepts that the Applicant has taken a productive role as a father figure for Child H, filling a major emotional, financial and parental support gap left by the death of Child H’s biological father. Child H is also likely to face challenges similar to those faced by Child D should Child H seek to maintain contact with the Applicant.
The Applicant’s ties to the Child H therefore weigh heavily in favour of not cancelling the Applicant’s visa.
Conclusion paragraph 8.3(2)
Consideration of paragraph 8.3(2) of the Direction weighs heavily in favour of not cancelling the Applicant’s visa.
Consideration paragraph 8.3(3)
The strength, duration and nature of the Applicant’s links to Australian citizens and permanent residents must be regarded as very strong. Even his former victim Mr R has strongly supported his remaining in Australia. The Applicant has lived in Australia since the age of three years, done all his schooling here, spent his formative years here, and all of the family he knows are here as are his various friends and social ties accumulated over a life time. Whilst there is limited evidence before the Tribunal as to the Applicant’s broader links with Australian citizens and residents, the Tribunal accepts having regard to the period of time the Applicant has spent in Australia he has life long community ties.
Moreover, the Applicant can be accepted as having no memory of life or family other than in Australia, and this weighs very heavily in favour of not cancelling the Applicant’s visa.
Conclusion paragraph 8.3(3)
Consideration of paragraph 8.3(3) of the Direction weighs very heavily in favour of not cancelling the Applicant’s visa.
Consideration of paragraph 8.3(4)
The Tribunal accepts that the Applicant’s life-long ties to the Australian community are the only ties that he has ever known, having lived here since infancy.
Consideration of paragraph 8.3(4)(a)(i)
Having regard to paragraph 8.3(4)(a)(i) of the Direction, the Tribunal gives very heavy weight to the fact that the Applicant has lived in Australia since infancy, and spent his formative years in Australia.
Conclusion paragraph 8.3(4)(a)(i)
Paragraph 8.3(4)(a)(i) of the Direction weighs very heavily in favour of not cancelling the Applicant’s visa.
Consideration of paragraph 8.3(4)(a)(ii)
Whilst the Applicant has given evidence of employment[133], there is little by way of persuasive corroboration in this regard. He acknowledged significant patches of unemployment. The Applicant’s evidence conflicts with Government records which disclose only one day of employment[134].
[133] Transcript, p 48 lines 8-30.
[134] Exhibit 3, p 166.
Having regard for the Tribunal’s findings as to the Applicant’s credibility, and the official employment records the Tribunal does not allocate more weight to consideration of paragraph 8.3 of the Direction in consequence of any positive contribution to the Australian community.
Conclusion paragraph 8.3(4)(a)(ii)
No more weight is given to consideration of paragraph 8.3 of the Direction in consequence of paragraph 8.3(4)(ii).
Consideration of paragraph 8.3(4)(a)(iii)
Paragraph 8.3(4)(a)(iii) does not arise for consideration on the facts of this case.
Conclusion paragraph 8.3(4)(a)(iii)
Paragraph 8.3(4)(a)(iii) of the Direction is given neutral weight.
Conclusion paragraph 8.3(4)
Paragraph 8.3(4) weighs very heavily in favour of not cancelling the Applicant’s visa.
Conclusion: Primary Consideration 3
The strength, nature and duration of the Applicant’s ties to Australia weighs very heavily in favour of not cancelling the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.4(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Sub-paragraph 8.4(4) of the Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
(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.
Identification of the relevant minor children
As discussed earlier, the Applicant has three biological children, Child A, Child B and Child D from different mothers. The Child H, effectively the Applicant’s step-child also requires consideration. Although Child A’s age is not known, having regard to the Applicant’s age, it is inferred that Child A will be under the age of 18 years at the time of this decision, as will each of the other children.
A factor of concern, and relevant to all four children in terms of para 8.4(4)(b) is that the extent to which the Applicant is likely to play a positive role in the future in any of their lives hinges on his prospects of maintaining his mental health as best he can, and abstaining from alcohol and drugs. The Tribunal has already expressed its findings in regard to the Applicant’s prospects of maintaining his medication, and his consequent high risk of reoffending. Should his self-described “volcano” erupt whilst in close proximity to any of the children, the consequences could be severe and adverse. This weighs heavily in favour of cancelling the Applicant’s visa.
Best interests - Child A
Paragraph 8.4(4)(a)
The Applicant has never met Child A, and nothing is known of the circumstances in which Child A is living. Whilst the relationship is – biologically at least - parental, there is no evidence that the Applicant has ever played any role in the parenting of Child A, from whose life he has been totally absent. There has never been any meaningful contact between the two.
Paragraph 8.4(4)(b)
There does not appear to be any likelihood of the Applicant playing any positive role in the future in relation to Child A.
Paragraph 8.4(4)(c)
There is no evidence before the Tribunal of any of the Applicant’s past conduct impacting the child. There is no evidence to suggest that any of the Applicant’s future conduct will have a negative impact on the child, as there is no evidence of any likely future contact between the two.
Paragraph 8.4(4)(d)
Child A has been separated from the Applicant since birth, and there is no evidence of any contact between them, or of any effort by the Applicant to initiate contact. There is no past contact to be maintained, and an adverse decision will simply be maintaining the status quo. However, it will create a circumstance where should Child A ever seek to establish contact with his father, tracing, locating and contacting him will become more difficult if the Applicant is not in Australia. This is given slight weight in favour of not cancelling the Applicant’s visa.
Paragraph 8.4(4)(e)
There is no evidence before the Tribunal as to whether any other person already fulfils a parental role in relation to the child.
Paragraph 8.4(4)(f)
There is no evidence before the Tribunal as to the views of Child A as to what decision is in his best interests.
Paragraph 8.4(4)(g)
The evidence before the Tribunal suggests that Child A has never been subject to any relevant conduct by the Applicant.
Paragraph 8.4(4)(h)
There is no evidence before the Tribunal as to this consideration.
Conclusion re paragraph 8.4(4) for the Child A
The best interests of Child A weigh slightly in favour of not cancelling the Applicant’s visa.
Best interests child B
Paragraph 8.4(4)(a)
Very little is known about the current circumstances of Child B, who is presently about nine years of age, other than that she is living with, and presumably cared for by her mother Ms X, who has effectively already quarantined Child B from the Applicant for a period of about three years. There does not appear to be any meaningful relationship presently between the Applicant and Child B at present.
Para 8.4(4)(b)
On present indications, the Applicant appears unlikely to play any role, let alone a positive one, in Child B’s life for the foreseeable future. He has had no contact with her for three years, and has voiced no intention to change that.
Para 8.4(4)(c)
Child B has been exposed to episodes of family violence when she was only a matter of months old. There is no expert evidence as to what long term impact if any this may have on her. Future contact between the Applicant and A for the time being, appears unlikely, as he has voiced no intention to seek access to Child B. Should the Applicant have future contact with Child B, any attendant risk will hinge on his abstinence form drugs and alcohol as previously discussed.
Para 8.4(4)(d)
There has been no contact between the Applicant and Child B for three years. His deportation would therefore make no material change in the extent of their current contact. Child B would be likely to face similar challenges to child A in the event that she ever attempted to establish contact with the Applicant in the future, and this weighs slightly in favour of non-cancellation.
Para 8.4(4)(e)
Evidence before the Tribunal is that Ms X is fulfilling the role of parent for Child B, and her performance in that role has not been the subject of criticism before the Tribunal.
Para 8.4(4)(f)
There is no evidence before the Tribunal as to the views of Child B as to what decision is in her best interests.
Para 8.4(4)(g)
Evidence before the Tribunal[135] shows that Child B has been exposed to a serious episode of family violence at the age of 5 months in May 2014, and a further episode in December of that year[136].
[135] Exhibit 3, p 58-59.
[136] Ibid, p 60-61; Transcript, p 25, lines 24-25.
Para 8.4(4)(h)
There is no expert evidence before the Tribunal that Child B has suffered any physical or emotional trauma arising from the Applicant’s conduct.
Conclusion re para 8.4(4) for the child B
The best interests of Child B weigh slightly in favour of not cancelling the Applicant’s visa.
Best interests of Children D and H
The Children D, the biological son of the Applicant, and H, the stepson of the Applicant, are considered together as they share the same mother, and have had similar past contact with the Applicant and are likely to have similar future contact, and their interests do not appear to differ.
Para 8.4(4)(a)
Child H appears to have been born in 2015, and Child D in 2021[137]. The Applicant has been a fixture in the life of Child D since birth, and in the life of Child H since he was learning to walk. There is no reason to doubt that they have both bonded with the Applicant as their father, and enjoy a loving relationship, and spent quality time with them both. There has been a short period of several months absence from both their lives owing to the Applicant’s placement in immigration detention.
[137] Exhibit 7.
Para 8.4(4)(b)
There is some reason to believe that the Applicant can continue to play something of a positive role in the lives of Child D and Child H. However, it is 16 years until Child D turns 18, and about ten years until Child H does. Based on his past performance, the Tribunal has little confidence that the Applicant could abstain from drugs, and alcohol and consequent re-offending for such a lengthy period of time.
Para 8.4(4)(c)
The impact of the Applicant ‘s past conduct on Child D and Child H is not the subject of expert evidence before the Tribunal. Child D was present, being breast fed at 1 am on 2 January 2022 during the episode of family violence.[138] Presumably Child H was in the same residence but it is unclear whether or not he would have witnessed the episode. There is not sufficient evidence to enable the Tribunal to safely conclude that the Applicant’s past conduct has negatively impacted either child, other than that it has resulted in his separation from them. Given the Applicant’s past propensity for eruptive dangerous behaviour involving knives, the likelihood that there may be a further such episode in the next sixteen years cannot be excluded. Such conduct could have a very negative impact on them were they present, whether or not it was directed at them.
[138] Exhibit 3, p 68.
Para 8.4(4)(d)
As things stand at present, there appears to be a strong and happy relationship between the Applicant and Child D and Child H. They are both likely to suffer emotional trauma from enforced separation and lack of physical presence, personal, emotional and financial support. They could of course maintain contact via video-link etc, however that is a poor substitute for day-to-day physical proximity and interaction.
Para 8.4(4)(e)
Both Child D and Child H have the benefit of their mother Ms S fulfilling the parental role in the absence of the Applicant.
Para 8.4(4)(f)

Whilst the Tribunal does not have the benefit of direct evidence as to the views of Child D and Child H regarding the Applicant’s visa, the Tribunal accepts that both would fervently hope that the Applicant would remain in Australia as part of their family unit.
Para 8.4(4)(g)
The Applicant said he been absent for a period of Child D’s life, whilst he has been in detention, and said that Child D had been exposed to some “pretty bad” behaviour of his, and episodes of domestic violence. Child H may be assumed to have been reasonably close by at such times, but not necessarily directly exposed. The Applicant has also been absent from Child D’s life whilst he has been in detention.
Para 8.4(4)(h)
There is no clear evidence that either Child D nor Child H has suffered physical or emotional trauma arising from the Applicant’s conduct.
Conclusion re para 8.4(4) for the Children D and H
The best interests of Child D and Child H weigh moderately in favour of not cancelling the Applicant’s visa.
Conclusion: Primary Consideration 4
Primary consideration 4 weigh moderately in favour of not cancelling the Applicant’s visa.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he 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.
Paragraph 8.5(2) of the Direction directs that a 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 are 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:[139]
(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.
[139] Paragraph 8.5(2) of the Direction.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
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.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.
Analysis
The Applicant has a disturbing history of an eruptive temper, domestic violence against three partners, and serious criminal violence whilst armed with dangerous, and potentially life threatening weapons. He has caused great fear and trauma to his partners, and members of the community, and regularly done great damage to items of personal property and caused very serious physical injury. The Tribunal considers that the expectations of the Australian community weighs very heavily in favour of cancelling the Applicant’s visa.
Conclusion: Primary Consideration 5
Primary consideration 5 weighs very heavily in favour of cancelling the Applicant’s visa.
OTHER CONSIDERATIONS
Under the heading Other Considerations paragraph 9(1) of the Direction provides a non-exhaustive list of considerations as follows:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims;
(d)impact on Australian business interests.
9(1)(a) Legal consequence of the decision
The evidence in this case does not raise any issue of non-refoulement obligations.
In consequence of this decision, the Applicant will become an unlawful non-citizen pursuant to s 15 of the Act, and subject to removal as soon as is reasonably practicable pursuant to ss 189 and 198 of the Act. There has been no protection finding made in respect of him, and there is no evidence to suggest that he would be detained indefinitely. He will of course be precluded from seeking another visa while in Australia other than a protection visa in consequence of s 501E.
This consideration is given neutral weight.
9(1)(b) Extent of impediments if removed
Paragraph 9.2(1) of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Paragraph 9.2(1)(a) - Age and health
The Applicant is 29 years old, has lived exclusively in Australia since he was three, and has a history of polysubstance abuse and serious mental health issues. His drug addiction requires professional counselling and assistance as does his use of alcohol. His mental health requires regular medication. Even in detention, he has a poor track record of meeting his medication needs, just as he has when at large in the community. In the Philippines, the onus will be on him to source and take his required counselling and medication diligently. Whilst it is true to say that he will have the same access to social, medical and other economic support health as is offered to other citizens of the Philippines, the availability and cost of his medication in the Philippines are unknowns. So too is the availability and cost of alcohol rehabilitation support. These factors are impediments to his deportation.
If deported, the Applicant will be removed to a country with which he is entirely unfamiliar. He will have to learn to do simple things such as finding his way around his local area, finding accommodation, or a hospital, and familiarising himself with public transport. Although he has siblings in the Philippines whom he has never met, it is expected that he will have to meet these and other challenges by himself. He says he has a white card, and has worked in the construction industry. If this is true, these factors should assist him in finding employment.
The Applicant’s age does not present as an impediment to his relocation, but his health, does present as a significant one, particularly because he himself has been less than diligent in preserving it by taking his medication as required. However, even if the Applicant does his level best to maintain his medication, he may, despite his best efforts be unable to do so. This presents as a substantial impediment.
Paragraph 9.2 (1)(b) Substantial language or cultural barriers
The Applicant speaks English, which, whilst it is an official language of the Philippines, is by no means spoken by the entire population, and his language skills present as an impediment. His language skills may impede his capacity to gain work and support himself. The Applicant did not assert that there would be any cultural barriers to his relocation, but the Tribunal accepts that any relocation to another country requires some cultural adjustments.
Because English is an official language of the Philippines, the fact that the Applicant is only fluent in English, whilst it may present some impediment, should not present a substantial impediment.
Paragraph 9.2(1)(c) - any social, medical and/or economic support available to that non-citizen in that country.
There is no evidence before the Tribunal regarding social, medical and or economic support which will be available to the Applicant in the Philippines, however the Tribunal is prepared to assume that whilst he would have access to whatever is available to other citizens there, it is unlikely to be at the same level as in Australia. The Tribunal therefore regards this as a significant impediment which the Applicant may face.
Conclusion paragraph 9.2: Extent of impediments if removed
The extent of impediments which the Applicant will face if removed weighs very heavily in favour of not cancelling the Applicant’s visa.
Paragraph 9.3: Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of the ss 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.
The Tribunal has before it evidence from only two of the Applicant’s victims, Mr R and Ms S. Neither of them asserted that they would suffer any detriment if the Applicant remained in Australia, indeed they both supported his remaining in Australia.[140]
[140] PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235; Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 116.
Mr R did not go into any particular detail as to the impacts on him either way if the Applicant is deported. The Tribunal gleans from his letter of support for the Applicant that notwithstanding what he termed the “ups and downs” of their relationship, he remained in touch, and apparently wants their relationship such as it is to continue, and for the Applicant to remain in Australia. He certainly expressed no fear of his doing so. The Tribunal accepts that Mr R will be impacted by the loss of someone whom he appears to have forgiven, and continues to regard as a friend.
Ms S expressed very strong concerns as to the adverse impact on her of the Applicant’s deportation. She spoke of his role as a father, and the support he gives to her sons. He worked hard to support their family. His deportation would cause her a “massive financial burden” and emotional distress for their family. Ms S has demonstrated that there will be a significant adverse impact on her and her family if the Applicant is deported.
Conclusion: Paragraph 9.3: Impact on victims
The Tribunal finds that impact on victims in this case, weighs very heavily in favour of not cancelling the Applicant’s visa.
Paragraph 9.4 Impact Australian business interests
Paragraph 9.4(1) of the Direction requires that decision makers, must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under ss 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 so as to enliven this consideration.
Conclusion: Paragraph 9.4 Impact Australian business interests
This consideration is given neutral weight.
Conclusion as to paragraph 9: Other Considerations
Paragraph 9.1(a) weighs neutrally.
Paragraph 9.1(b) weighs very heavily in favour of not cancelling the Applicant’s visa.
Paragraph 9.1(c) weighs very heavily in favour of not cancelling the Applicant’s visa.
Paragraph 9.1(d) weighs neutrally.
Overall, paragraph 9 Other considerations weighs very heavily in favour of not cancelling the Applicant’s visa.
CONCLUSION
The Tribunal is now required to weigh all of the Considerations in accordance with the Direction.
In considering whether to exercise the discretion pursuant to s 501(2) of the Act to cancel the Applicant’s visa, the Tribunal finds as follows:
·Primary Consideration 1 weighs very heavily in favour of cancellation;
·Primary Consideration 2 weighs heavily in favour of cancellation;
·Primary Consideration 3 weighs very heavily against cancellation;
·Primary Consideration 4 weighs moderately against cancellation;
·Primary Consideration 5 weighs very heavily in favour of cancellation;
·The totality of other considerations weighs very heavily against cancellation.
The Tribunal has had regard for paragraph 5.2(5) of the Principles in the Direction to allow the Applicant an increased level of tolerance in consequence of the fact that he has lived in Australia for most of his life. Further the Tribunal has had regard for paragraph 5.2(3), and the serious character concerns raised by the Applicant’s conduct. In addition, the Tribunal has had regard for paragraph 5.2(6) of the Direction, and considers that the nature of the Applicant’s conduct, and the harm that would be caused were it to be repeated, are such that even strong countervailing considerations in this case are insufficient to justify not cancelling the Applicant’s visa.
Application of the Direction therefore favours the Tribunal exercising the discretion pursuant to s 501(2) of the Act to cancel the Applicant’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 27 April 2022 to cancel the Applicant’s visa.

I certify that the preceding 328 (three hundred and twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Member Roger Maguire

...................................[SGD]................................
Associate
Dated: 10 August 2023

Dates of hearing: 6 and 7 July 2023

Applicant: Self-represented

Solicitor for the Respondent: Mr Oliver Morris

Solicitors for the Respondent: Clayton Utz
ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

1

Statement from Applicant

4 June 2023

5 June 2023

2

Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 28)

20 June 2023

20 June 2023

3

Section 501G documents (bookmarked G1 to G12, paged 1 to 183)

Various

16 May 2023

4

Respondent’s supplementary bundle (bookmarked SB1 to SB14, paged 1 to 26)

Various

2 July 2023

5

IHMS records from the Applicant

Various

9 May 2023

6

Letter of support for the Applicant from Mr R

Undated

4 June 2023

7

Joint statement from Applicant and Ms S (Applicant’s partner)

8 May 2023

8 May 2023

8

Letter of support from Ms Wivlyn Dayadaya (Applicant’s sister)

27 May 2023

29 May 2023

9

Letter of support from Ms Alteeza (Letty) Smith

30 May 2023

30 May 2023

10

Letter of course completion from Innisfail Youth & Family Inc

21 June 2023

21 June 2023

11

Letter of support from Ms Jodie Borgna (Senior employment consultant APM Workforce Australia)

21 June 2023

21 June 2023

12

Applicant’s list of family members in Australia

13 June 2023

13 June 2023

13

Letter of support from Ms Evelyn Dayadaya (Applicant’s mother)

3 July 2023

3 July 2023

[2023] AATA 2456

26 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

Appeal

Dates of hearing:	6 and 7 July 2023
Applicant:	Self-represented
Solicitor for the Respondent:	Mr Oliver Morris
Solicitors for the Respondent:	Clayton Utz

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
1	Statement from Applicant	4 June 2023	5 June 2023
2	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 28)	20 June 2023	20 June 2023
3	Section 501G documents (bookmarked G1 to G12, paged 1 to 183)	Various	16 May 2023
4	Respondent’s supplementary bundle (bookmarked SB1 to SB14, paged 1 to 26)	Various	2 July 2023
5	IHMS records from the Applicant	Various	9 May 2023
6	Letter of support for the Applicant from Mr R	Undated	4 June 2023
7	Joint statement from Applicant and Ms S (Applicant’s partner)	8 May 2023	8 May 2023
8	Letter of support from Ms Wivlyn Dayadaya (Applicant’s sister)	27 May 2023	29 May 2023
9	Letter of support from Ms Alteeza (Letty) Smith	30 May 2023	30 May 2023
10	Letter of course completion from Innisfail Youth & Family Inc	21 June 2023	21 June 2023
11	Letter of support from Ms Jodie Borgna (Senior employment consultant APM Workforce Australia)	21 June 2023	21 June 2023
12	Applicant’s list of family members in Australia	13 June 2023	13 June 2023
13	Letter of support from Ms Evelyn Dayadaya (Applicant’s mother)	3 July 2023	3 July 2023