Di Meco and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Di Meco and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1952 (5 May 2021)
Division:GENERAL DIVISION
File Number:2021/0990
Re:William Di Meco
APPLICANT

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

Decision
Tribunal:Member Andrew McLean Williams
Date of Decision: 5 May 2021
Date of Written Reasons: 25 June 2021
Place:Brisbane

The decision under review is affirmed.
..........................[SGD].................................

Member Andrew McLean Williams
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of Partner (subclass 801) visa – where Applicant does not pass character test – whether there is another reason to revoke the mandatory cancellation decision – consideration and application of Ministerial Direction No 90 – decision under review is affirmed
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Khalil v Minister for Home Affairs [2019] FCAFC 151
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Andrew McLean Williams
25 June 2021
INTRODUCTION

On 5 May 2021, the Tribunal gave its decision[1] in this matter, affirming the decision here under review.
[1] Annexure A to these reasons.
In accordance with the principles outlined by the Full Federal Court in Khalil v Minister for Home Affairs [2019] FCAFC 151 (“Khalil”), the Tribunal now publishes the written Reasons for that decision. In Khalil, the Full Federal Court said:
“41. The AAT Act thus draws a clear distinction between the decision of the Tribunal under s 43 which is, relevantly, what causes the 84 day period to stop running, and the reasons for decision. In BTR plc v Westinghouse Brake and Signal Company (Australia) Ltd (1992) 34 FCR 246 the Tribunal had handed down a decision on a review of a decision of the Australian Securities Commission that was before it, confirming an exemption that the Commission had granted on certain conditions, but substituting different conditions. At the time of announcing the decision the Tribunal did not give any reasons. It delivered written reasons some 14 days later. Beaumont J held (at 271 273, Lockhart and Hill JJ agreeing at 253) that the Tribunal's omission to provide reasons at the time of announcing its decision was not an error, as on the proper construction of s 43(2) of the AAT Act, the Tribunal was only required it to give its reasons, oral or in writing, within a reasonable time of the decision.
…
48. What the Tribunal had to do here within the 84 days was to deliver a decision, not necessarily express reasons…”
[My underlining]
This is an application for review before the Tribunal of a decision by a delegate of the Respondent (‘the Minister’) dated 10 February 2021 by which a delegate determined,[2] pursuant to s.501CA(4) of the Migration Act 1958 (Cth) (‘the Act’) not to revoke a decision made on 4 June 2020 to cancel the Applicant’s Partner (subclass 801) visa (‘the visa’), under subsection 501(3A) of the Act (‘the non-revocation decision’).[3]
[2] Exhibit G1, G3.
[3] Exhibit G1, G18.
The Applicant then lodged an application in this Tribunal for review of the non-revocation decision, on 19 February 2021.[4] The Tribunal has jurisdiction to review that decision, pursuant to s.500(1)(ba) of the Act.
[4] Exhibit G1, G2, page 3.
The hearing of this application for review took place on 4 May 2021.
At the hearing, the Tribunal received oral evidence via audio video link from the Applicant, as well as evidence by telephone from a friend of the Applicant.
The Tribunal also received the written evidence that is now listed in the attached exhibit list, marked as “Annexure A” to these reasons.
FACTUAL BACKGROUND, and offending History
The Applicant is a 41 year old male citizen of Italy, who is married to an Australian citizen, LDM. The Applicant and LDM are now estranged from one another, and the Applicant remains subject to a domestic violence protection order (‘DVO’) taken out for the benefit of LDM, now preventing him from seeing either LDM, or their children, until 29 July 2023.[5]
[5] Exhibit A1, page 4.
In 2003, the Applicant first met LDM, in Italy, when she was travelling on holiday. Their first child (a girl, EDM) was born in June 2004.[6] The Applicant and LDM were also married in Italy, in August of 2009.
[6] Exhibit G1, G7, page 48; and Exhibit A1, page 2.
At the age of 24, and just 25 days prior to the birth of EDM, the Applicant lost his father, who died of post-surgical complications. The Applicant described his father as an important figure in his life, who had taught him how to be a “good person”. He stated this tragic event was “a life changer”[7], however, with a new baby to care for, he tried to focus on EDM “without never face the reality of loosing my father, my guide”[sic].[8]
[7] Exhibit G1, G7, page 52.
[8] Exhibit A5.
The Applicant arrived in Australia on a tourist visa in June 2010 when 30 years of age, accompanying his Australian wife, LDM.[9] In February 2014, the Applicant was granted a Partner (subclass 801) visa.[10] Since his arrival in this country the Applicant has not returned to Italy.
[9] Exhibit G1, G17, page 223.
[10] Exhibit G1, G18, page 224.
The Applicant has a criminal record in Italy. This was not declared by the Applicant when he first arrived in Australia in 2014. In Italy in 2006, the Applicant had been sentenced to a term of imprisonment for a period of one year for the possession of illegal drugs. Then, in 2009, the Applicant was sentenced to a further term of imprisonment, this time on two counts of illicit possession, sale and transfer of illegal drugs. The Applicant received a further sentence of one year imprisonment for each count, to be served concurrently.[11] Also in 2009, the Applicant was sentenced to six months’ imprisonment in Italy for an offence described as ‘evasion’.
[11] Transcript, page 4.
The Applicant admitted in the hearing before the Tribunal that when he was a younger man, he had been found with drugs in his possession by Italian law enforcement authorities, at a time when he was also using drugs, although he could not now fully remember the details of that, stating “I can’t remember, but yes, I’m sure I did – I did receive a sentence in Italy, yes, from using drugs…Yes, I’m not sure. I’m sure probably yes, I can’t remember, but yes, I remember problems in Italy a few times just because I was using drugs and they found the drugs on me.”[12]
[12] Transcript, page 4.
In relation to the evasion offence, the Applicant explained that his now wife had flown back to Italy from Australia, for the purposes of their wedding. It appears that as at the date of their wedding, the Applicant was still serving a component of his term of imprisonment under home detention. He was given permission by the Italian authorities to leave home detention for the purposes of the wedding ceremony, yet then breached the conditions attached to that permission, such that the Applicant was later arrested, and charged.[13]
[13] Transcript, page 4.
The Applicant is a qualified carpenter and worked in Italy for five to six years prior to his coming to Australia. There is also evidence that the Applicant worked as a mechanic in Italy, although he clarified that he is not formally qualified as a mechanic. In Australia, the Applicant explained he worked as, in his words, a “handyman carpenter”.[14]
[14] Transcript, page 14.
Family violence
The evidence before the Tribunal indicates that the Applicant has been named as the respondent in multiple domestic violence and protection orders since 2010, protecting the Applicant’s wife and children from him.
In October 2010, within months of his arrival, a temporary protection order was made against the Applicant, by consent, naming his wife as the person in need of protection.[15]
[15] Exhibit G1, G8, pages 58 and 59.
On 20 October 2010, the Applicant appeared before the Brisbane Magistrates Court for the offence of ‘breach of release conditions’ (on 2 October 2010). No conviction was recorded in this instance. The Applicant explained he was still new to Australia at that stage, and had limited English. When he was released by police after a domestic violence incident, which appears to be connected to the temporary protection order made in October, the police instructed the Applicant not to return home for a period, and to remain more than 100 metres away from his wife. The Applicant stated “without any idea, without my money, with everything at home with [LDM], so I just went to sleep in the park across the road of my house and the police find me sleeping there in that park, that’s why I breached.”[16]
[16] Transcript, page 5.
In November 2010, a further protection order was made against the Applicant, again by consent. This remained in place until November 2012.[17]
[17] Exhibit G1, G8, pages 63 and 64.
In June 2013, the Applicant and LDM had their second child, another daughter, CDM.[18]
[18] Exhibit G1, G7, page 49; and Exhibit A1, page 3.
In around 2015-2016, the Applicant stated that he started using methamphetamine. The Applicant’s evidence was that he had at this stage been living ‘a nice and happy life’ with his wife and family. However, a number of health checks around this time had revealed that the Applicant was afflicted with cardiomyopathy, secondary to Marfan Syndrome,[19] the same condition that had afflicted both the Applicant’s father and a sister in Italy and that had led to their untimely deaths. In consequence, the Applicant was required to undergo significant heart surgery. The Applicant also indicated this surgical procedure was similar to that from which his father had passed away in consequence of post-operative complications.[20]
[19] Exhibit A2, pages 9 and 10.
[20] Exhibit A5.
After the surgery, the Applicant says that he experienced significant on-going pain and discomfort for several months. Ultimately, this led to him again resorting to illicit drugs. The Applicant explained the context for his renewed use of illicit drugs as follows:[21]
“I was in constant pain and depress [sic] so me and my wife decide to try some drugs, we did use drugs for an [sic] year or so, just enough to destroy our life.”
[21] Exhibit A5.
In the hearing, the Applicant elaborated on the background to his illicit drug use in Australia. He indicated that he had been suffering for about six months after the surgery, and his evidence was that his wife had then introduced the idea of his using illegal drugs: “my wife kept telling me, we can do something to make your pain go away.”[22] For the first six months the Applicant says that he resisted the suggestion, stating that the reason for his refusal had been the consequences of his prior history of drug use in Italy, which had resulted in his imprisonment. Ultimately however, the Applicant says that he weakened, and succumbed to his wife’s entreaties: “so, we start together, the same day, we start – we touch methamphetamine the first time in our life, for the first time and I remember I said to my wife, this will be the end of our marriage. She said no, we can handle this. But because I used to use drugs before, I know the drugs, it’s very manipulated, it’s very hard, it’s hard to handle it.”[23]
[22] Transcript, pages 25 and 26.
[23] Transcript, page 26.
Notwithstanding the Applicant’s initial reluctance, he also told the Tribunal that his return to amphetamines had been “fun”, at least in the beginning. However, shortly afterwards the Applicant and his wife started developing trust and relationship issues, in consequence of drugs.[24]
[24] Transcript, page 26.
On 13 July 2017, the Applicant appeared in the Holland Park Magistrates Court in relation to three offences of ‘contravention of domestic violence order’, arising between March and June 2017. At this court appearance the Applicant was fined, and no conviction was recorded.[25]
[25] Exhibit G1, G4, page 27.
In relation to the March incident, a police court brief describes what had transpired. The Applicant had become involved in a heated argument with LDM. During the argument, LDM was observed by a male witness as having said to the Applicant words to the effect of “Get away” and/or “Get out”. That same witness later heard LDM screaming, and described LDM as looking distressed. At about this point, the Applicant apparently told the male witness that he was just trying to speak with his wife, and was not hurting her. A female witness who had also been present then checked with LDM, before asking the Applicant to leave, which he then did. The police later attended.
In their incident report, the police described LDM’s appearance as having been “highly distressed and emotional”. While LDM acknowledged to the police that there was an extant DVO against the Applicant, she would not tell the officers what had transpired that afternoon prior to their arrival, and nor would she say whether the Applicant had attended her address that afternoon in response to her invitation. Approximately one month later, the Applicant voluntarily attended the police station to speak to the police about this incident. The Applicant informed the police that he “could not recall” what had happened. The version of events given to the police by the male witness was then read to Applicant, however the Applicant denied having breached the conditions of the DVO.[26] In light of the eyewitness evidence, he was charged.
[26] Exhibit R2, page 44 and 45.
The second DVO contravention occurred in May 2017. The police particulars report the police having attended at the address of LDM in relation to a disturbance wherein a male (the Applicant) had parked behind a female (LDM), before shouting demands towards her. The Applicant told the police that he was at LDM’s address in order to visit his children, and that no disturbance had occurred. At that stage, the police became aware that the Applicant was wanted on an outstanding warrant, such that the Applicant was arrested.
In relation to the May 2017 family violence incident, LDM informed police that she and the Applicant had been planning to take their children to McDonalds for dinner, and had made these arrangements via text message, consistent with the Applicant’s access arrangements allowed in accordance with the conditions of the DVO. Despite that version, neither the Applicant nor LDM could provide any evidence to the police demonstrating the fact of that prior communication. The Applicant was then taken to a watchhouse for processing.[27]
[27] Exhibit R2, pages 38 and 39.
The third DVO contravention involved the Applicant staying overnight at LDMs address without there being evidence of any written communication showing her consent for that, as was required under the conditions of the DVO. The Applicant was arrested and charged with contravening the DVO.[28]
[28] Exhibit R2, page 40.
At the Tribunal hearing, the Respondent took the Applicant to the sentencing remarks of Magistrate Cornack in relation to these incidents, who had referred in her sentencing remarks to an allegation by a police officer who had seen LDM with red marks around her throat.[29] The Magistrate warned the Applicant about the seriousness of that kind of conduct:
“So, please, it is very serious the allegation that a police officer has seen your wife with red marks around her neck. That is not Mediterranean, hot-headed, passionate behaviour. That is serious criminal conduct.”[30]
[29] Exhibit G1, G6, page 39.
[30] Exhibit G1, G6, page 39.
In November 2017, the Applicant committed his most serious offending:
·‘choking/suffocation/strangulation: domestic relationship’,
·two counts of ‘assaults occasioning bodily harm – domestic violence offence’,
·‘common assault – domestic violence offence’ and
·‘contravene domestic violence order (aggravated)’.
The Applicant was arrested in November 2017 for the above offences and released on bail the following month. The Applicant was not subsequently dealt with for these 2017 offences until 26 May 2020, when he appeared before the District Court of Queensland at Brisbane before his Honour Judge Moynihan DCJ. After the Applicant having pleaded guilty, His Honour described the incident giving rise to these charges as follows:[31]
“In very short summary, you and the complainant have been married for about 8 years and you still are and you have children together. On the 14th of June 2014, a protection order was made in favour of the complainant. The protection order required you to be of good behaviour to your partner and prevented you from being within 100 metres of the complainant and contacting her.
In June 2017, the complainant gave permission for you to return to her home address.
On 2 November 2017, you returned to the house and you and the complainant had an argument about her using your telephone. You then commenced a vicious and protracted assault on her involving punching her in the head; pulling the complainant’s hair; pushing her around the bedroom and into a wardrobe; hopping on top of her and restraining her arms; placing your hands around the complainant’s neck and strangling her for three to five seconds during which she was not able to breathe; and threatening to kick the complainant and knock her teeth out. These acts occurred in breach of a domestic violence order. The complainant suffered bruising to her right arm and neck.”
[31] Exhibit G1, G5, page 28 to 31.
A schedule of facts, as accepted and adopted by Moynihan DCJ, further details the incident:[32]
·As to the first count of ‘assault occasioning bodily harm - Domestic Violence Offence’, the facts indicate that the Applicant placed himself on top of his wife on the bed and punched her in the head with closed fists, causing his wife to feel “blunt pain” to her head. The Applicant continued to ask why his wife had touched his phone then pulled her hair, with the Applicant’s wife believing the Applicant was trying to pull it from her scalp.
·The second count of ‘assault occasioning bodily harm - Domestic Violence Offence’ involved the Applicant continuing to ask his wife about the phone. He got on top of his wife and put both hands around her neck. He then grabbed her around the arms, pulled her up from the bed and pushed her back onto the bed. During this, the wife’s head hit the back of the bed and she indicated she felt pain. The Applicant punched his wife on the sides of her head again and his wife tried to fight back. She pulled his hair and put her knee in between her body and his.
·The facts of the ‘choking suffocation strangulation domestic relationship’ offence particularise the incident as follows:
“The defendant put both his hands around the complainant’s neck again and pushed his thumb in the middle of her throat for 3-5 seconds. The complainant gasped and was unable to breathe. The complainant tried to get the defendant to release her by biting and scratching him.
The complainant felt pain from the pressure placed on her throat and neck by the defendant for the 5 days following the offence. The complainant was medically assessed on 7 November 2016 where a fading contusion was observed over her right neck on the sternocleidomastoid muscle (the muscle starting from the top middle of the sternum and branching out in two directions to the area of neck under the ear).”
·The facts pertaining to the offence of ‘common assault – domestic violence offence’ describe the Applicant pushing his wife with one hand into a shelving unit. His wife lost her balance and fell to the ground and felt pain in her neck and back. The wife remained on the ground and the Applicant told her to get up. When his wife declined, the Applicant threatened her by telling her “I’ll kick you in the mouth and knock all your teeth out.” His wife asked him not to do that and he responded by saying “How are you going to stop me?” His wife then grabbed the ironing board and held it out in front of her body to protect herself. She eventually got up from the floor and smashed an empty glass to the ground in front of the defendant to try and get him to move away. The Applicant has then pushed his wife with one hand and she fell to the ground again.
·In relation to the ‘contravene domestic violence order (aggravated)’, the schedule of facts outline that condition 1 of the protection order in place against the Applicant was that he be of good behaviour towards the aggrieved (his wife) and not commit domestic violence against her. As a result of his conduct in relation to the above the Applicant contravened condition 1 of the protection order.
[32] Exhibit R2, page 65 and 66.

At the Tribunal hearing, the Applicant accepted that he had pleaded guilty to each of these offences, thus accepting the factual particulars that had been presented to the District Court at Brisbane as part of his sentencing.[33]
[33] Transcript, page 7.
On 30 July 2018, the Applicant appeared in the Brisbane Magistrates Court for a further domestic violence offence - ‘contravention of domestic violence order (aggravated offence)’ - which had occurred between 12 and 16 February 2018. At that time, the Applicant and LDM were living apart, and the Applicant was subject to bail conditions which included a curfew requirement, preventing the Applicant from leaving his address between the hours of 9pm and 6am. The police court brief sets out the circumstances of this offending, stating that LDM had attended the Applicant’s address on 16 February 2018, with their children. While there, the Applicant and LDM had engaged in another argument, this time about their Ferrari car. During the argument, LDM claimed that the Applicant had threatened to kill her, and had damaged her mobile phone. The police subsequently interviewed the Applicant, who stated he had seen his wife and children on multiple occasions between 11 and 17 February 2018. The Applicant also confirmed that he and LDM had an argument about the Ferrari, however, he denied having threatened to kill her, and stated that he had not smashed her mobile phone.[34]
[34] Exhibit R2, page 34.
Under cross-examination before the Tribunal, the Applicant continued to deny that he had threatened LDM, or that he had damaged her phone. He accepted that this is what LDM had reported to the police, and he agreed that he had been in breach of the DVO, yet only in respect of his being in the company of LDM, without her prior written consent. The Applicant did not agree he threatened his wife, saying “I never tried to do anything like – something like that.”[35] No conviction was recorded for this offence and the Applicant was not further punished.[36]
[35] Transcript, pages 8 and 9.
[36] Exhibit G1, G4, page 27.
In 2018, after being released on bail, the Applicant stated that he stopped using methamphetamine. In written submissions to the Tribunal, the Applicant explained that his priority at this stage was to assist his wife, who according to the Applicant was still using drugs at that time; as well as to support his children. The Applicant told the Tribunal that around this time he made an appointment with the Drug and Alcohol Unit at a hospital, whereupon he decided to participate in a one-week rehabilitation course.[37] The Applicant’s evidence was that this intervention was successful, and says that he has not used drugs since that point in time.[38]
[37] Transcript, page 9; and Exhibit A5.
[38] Transcript, page 9.
In spite of his aspiration to re-unite with this family, the Applicant indicated in written submissions that “for some reason, I left home again in 2020.”[39] It became evident in the hearing that the Applicant has not seen his children since December 2018 and, owing to a current protection order, the Applicant does not currently speak with his daughters, either.[40]
[39] Exhibit A5.
[40] Transcript, pages 12, 13 and 28.
On 7 February 2019, the Applicant breached a bail condition and was convicted and fined in the Brisbane Magistrates Court on 22 March 2019.
The Applicant appeared at the Holland Park Magistrates Court on 8 November 2019 for further breaches of bail conditions arising between August and October of that year. The Applicant was convicted and fined for these offences.[41]
[41] Exhibit G1, G4, page 27.
The Applicant was incarcerated on remand from February 2020 in the lead up to his sentencing for his serious domestic violence offending which had occurred in November 2017.[42]
[42] Exhibit G1, G5, page 29.
On 26 May 2020, the Applicant was sentenced for his domestic violence offending in November 2017. On all charges, a conviction was recorded, and he was sentenced as follows:
·‘choking suffocation strangulation domestic relationship’ offence - two years imprisonment;
·‘assaults occasioning bodily harm – domestic violence offence’ (two counts) - two years imprisonment; and
·‘contravene domestic violence order (aggravated)’, and ‘common assault – domestic violence offence’ - six months imprisonment.
On 2 June 2020, the Applicant was convicted of further breaches of bail conditions which had occurred on 4 July 2019, 9 October 2019, and 20 January 2020. He was convicted on all charges, yet otherwise not further punished.
On 4 June 2020, the Applicant’s Partner (subclass 801) visa was cancelled.[43] On 30 June 2020, Applicant made representations to the Minister, requesting revocation of the cancellation of his visa.
[43] Exhibit G1, G18, page 224.
On 26 August 2020, the Applicant was transferred to immigration detention.[44]
[44] Transcript, page 9.
Incidents in Immigration Detention
On 29 September 2020, a targeted room search was conducted by Immigration Detention Centre Officers on the room occupied by the Applicant. The search revealed a container of fermenting fruit, set up in such a way so as to make alcohol. When asked who the container belonged to, the Applicant admitted that it was his.[45] During the Tribunal hearing, the Applicant accepted that he had admitted that this contraband item belonged to him, yet now said that he had accepted the blame at the time on behalf of someone else, explaining that he also shared the room with two other immigration detainees.[46] The Applicant did not seek to explain why he had done that.
[45] Exhibit G1, G11, page 91.
[46] Transcript, page 9.
On 16 April 2021, the Applicant was found bringing prohibited drugs into the immigration detention centre. On this occasion, the Applicant had temporarily left immigration detention in order to attend a pre-scheduled hospital out-patient appointment. On his return, Queensland Police Service officers conducted a strip search of the Applicant, after having received an intelligence report that strongly suggested that the Applicant was using the opportunity created by the off-site medical appointment to smuggle contraband items back into the immigration detention centre. The search recovered a substantial quantity of drugs, including 50 packets of suboxone (a restricted opiate); 60 small, sealed packets of methamphetamine; two smoking utensils; one small bag of marijuana; and a small bag of MDMA.[47]
[47] Exhibit R3.
At the hearing, the Applicant accepted that he had attempted to smuggle all of these drugs into the detention centre. However, his evidence was that he had been approached by ‘someone’ in detention asking him to smuggle drugs on their behalf: “they tried to start to tell me next time you go to the hospital, you have to do something for us, okay.” The Applicant says that, initially, he refused: “I didn’t want to do that so I start to say no, I can’t do it.” However, the Applicant’s evidence was that he had made himself vulnerable to threats and to his eventual recruitment to act as a drug mule, as he had previously spoken in an unguarded manner about his wife and children. Before Christmas 2020, the Applicant was approached again, and told that he had to “do something”, “before [next] Easter”.[48]
[48] Transcript, page 11.
Around Easter 2021, the Applicant was informed of the fact of a follow-up medical appointment at the hospital. As the Applicant fully expected that he would be asked to smuggle drugs again, the Applicant says that he refused to attend the appointment. However, the same people whom had approached him previously discovered that the Applicant had rejected the appointment, and now insisted he “call the hospital yourself and you make an appointment for tomorrow”, otherwise they threatened to “send people to rob your wife, to take everything from your – and my kids are there” . The Applicant told the Tribunal that he had seen corruption within the immigration detention centre, and for that reason believed he could not report this coercion to the authorities. The Applicant said that he felt like he had to do as they asked, in order to protect himself, and his family.[49]
[49] Transcript, page 11.
The Applicant was charged with offences related to his smuggling illicit drugs into the detention centre. In consequence, he was transferred back to prison only a matter of days prior to this Tribunal hearing.[50]
[50] Transcript, page 21.
ISSUES
Revocation of the mandatory cancellation of visas is a matter governed by s.501CA(4) of the Act. Relevantly, s.501CA(4) provides:
(4)       The Minister may revoke the original decision if:
(a)       the person makes representations in accordance with the invitation; and
(b)       the Minister is satisfied:
(i)that the person passes the character test (as defined by s.501); or
(ii)that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s.501CA(4)(a). Thus, the issue becomes whether there is now ‘another reason’ why the original decision should be revoked.
As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”
There are therefore two issues before the Tribunal:
·whether the Applicant passes the character test; and
·if not, whether there is ‘another reason’ why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant Pass the Character Test?
The character test is set out in s.501(6) of the Act. Under s.501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is defined by s.501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
As discussed in the factual analysis in preceding paragraphs in these reasons, on 26 May 2020 the Applicant was convicted before the District Court at Brisbane of family violence offences, including the serious offence of choking in a domestic violence context, resulting in his being sentenced to two years imprisonment, and assaults occasioning actual bodily harm thus resulting in a further two years’ imprisonment, to be served concurrently.
The Applicant concedes that he does not pass the character test for purposes of s.501CA(4)(b)(i) of the Act.[51] Further, the Applicant concedes that he has a “substantial criminal record” as defined in s.501(7)(c), and that he does not pass the character test in s.501(6)(a).
[51] Exhibit A1, paragraphs 3(b), 4(a) & 4(b).
The Tribunal therefore finds that, because of s.501(7)(c), the Applicant has a “substantial criminal record”, and cannot pass the character test. In these circumstances, the Applicant cannot rely on s.501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is There Another Reason why the Visa Cancellation Decision Should be Revoked?
In considering whether to exercise the discretion in s.501CA(4), the Tribunal is bound, because of s.499(2A), to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Ministerial Direction”) has application.
For the purposes of deciding whether to refuse or cancel a non-citizen’s visa, or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Ministerial Direction contains several principles that must inform an application of each of the considerations identified in Part 2, wherever these may be relevant to the decision. The principles that are found in paragraph 5.2 of the Ministerial Direction are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non‑citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Ministerial Direction provides that, once suitably informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in paragraphs 8 and 9, wherever these may be relevant. Paragraph 8 of the Ministerial Direction then sets out four (4) ‘Primary Considerations’:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Next, Paragraph 9 of the Ministerial Direction sets out four (4) ‘Other Considerations’, which must also be taken into account. These are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
These are “other” considerations, as opposed to merely secondary considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[52]
“…Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”
[52] [2018] FCA 594.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
When considering Primary Consideration 1, paragraph 8.1 of the Ministerial Direction requires decision makers to keep in mind that the Government is committed to protecting the Australian community from harm arising in consequence of criminal activity, or other serious conduct by non-citizens. Decision makers are required to have particular regard for the principle that entering or remaining in this country is a privilege, that Australia confers on non-citizens in the expectation that they are, and have been, law abiding; that they will respect important institutions; and that they will not cause or threaten harm to individuals, or to the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Ministerial Direction requires decision makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Ministerial Direction specifies that decision makers must have regard for a number of further factors. These are set out, as sub‑paragraphs (a) – (g) inclusive, of paragraph 8.1.1(1) of the Ministerial Direction.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Ministerial Direction provides that, without limiting the range of conduct that may be considered ‘very serious’, (i) violent and/or sexual crimes; (ii) crimes of a violent nature against women or children (regardless of the sentence imposed); (iii) or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are each matters that are viewed ‘very seriously’ by the Australian Government and the Australian community.
The Applicant concedes with respect paragraph 8.1.1(1)(a) of the Ministerial Direction that his criminal offending must be viewed as ‘very serious’, by reason that it involves acts of family violence.[53]
[53] Exhibit A1, paragraph 22.
Paragraph 8.1.1(1)(b) provides that, without limiting the range of conduct that may be considered serious, the following types of crimes or conduct that are considered ‘serious’, (i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed; (ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties; (iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision maker’s opinion; (iv) a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act. These factors are not relevant in the circumstances of this case.

Paragraph 8.1.1(1)(c) provides that decision makers must have regard for the sentence imposed by the courts in the case of other crimes or conduct, being those other than in the case of those already mentioned in subparagraphs 8.1.1(1)(a)(ii), 8.1.1(1)(a)(iii), and in subparagraph 8.1.1(1)(b)(i). As the Applicant correctly submits,[54] this consideration need not be considered further in this case, by reason that the Applicant’s offending already involves elements of family violence.
[54] Exhibit A1, paragraph 24.
Paragraph 8.1.1(1)(d) provides that regard needs to be had for the frequency of the non‑citizen’s offending, and/or whether there is any trend of increasing seriousness. The Applicant concedes that his criminal history does now reveal a trend of increasing seriousness.[55] That is accepted by the Tribunal, in light of the fact that the Applicant’s family violence offending ultimately culminated in his receiving a term of imprisonment of two years for choking, coupled with other assaults upon LDM occasioning actual bodily harm, arising in a family violence context.
[55] Exhibit A1, paragraph 25.
Paragraph 8.1.1(1)(e) provides that regard should be had for the cumulative effect of repeated offending, and the Applicant now concedes that his repeated family violence offending does have such a cumulative effect.[56]
[56] Exhibit A1, paragraph 26
Paragraph 8.1.1(1)(f) provides that regard should also be had for whether the non-citizen has provided any false or misleading information to the Department, including by not disclosing prior criminal offending. The Applicant concedes that he has previously provided incorrect information regarding his Italian criminal history in the course of filling out his incoming passenger card, upon his first arrival in Australia, in 2010.[57]
[57] Exhibit A1, paragraph 27.
Paragraph 8.1.1(1)(g) provides that regard needs to be had for whether the Applicant has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour). This consideration is however not relevant in this instance.
The Respondent submits that the Applicant’s offences should be categorised by the Tribunal as ‘very serious’, because:[58]
·On 26 May 2020, the Applicant was convicted of a range of domestic violence offences, including an offence of choking, for which he was sentenced to two years’ imprisonment.
·The offences dealt with on 26 May 2020 were committed at a time when the Applicant was already subject to an extant DVO.
·Paragraph 8.1.1(1)(a)(ii) of the Ministerial Direction requires that crimes of a violent nature against women must be viewed very seriously.
·The Applicant has been convicted for breaching DVOs on four other occasions.
·Terms of imprisonment are imposed by sentencing courts only in the last resort, such that sentences involving a term of actual imprisonment are objectively more serious. Paragraph 8.1.1(1)(c) of the Ministerial Direction requires that the Tribunal must have regard for sentences imposed by the courts. [59]
·The Applicant has been convicted of 15 offences committed between 2017 and 2019. These convictions have culminated in a two year term of imprisonment conferred by the District Court of Queensland on 26 May 2020. Paragraph 8.1.1(1)(d) of the Ministerial Direction requires that the Tribunal consider any trend of increasing seriousness in the Applicant’s offending, over time. The Respondent submits that an upward trend in seriousness is thereby revealed in the Applicant’s criminal history.
·The Applicant has a criminal history in Italy, having committed five offences, including drug offences between 2005 and 2009, which resulted in terms of imprisonment. The Applicant failed to declare the fact of these prior convictions on his incoming passenger card contrary to the requirements of paragraph 8.1.1(1)(f) of the Ministerial Direction.
[58] Exhibit R1, paragraphs 22 to 29.
[59] The Tribunal notes that, despite the submission in this regard by the Respondent, it becomes unnecessary to have regard for the sentence imposed by the Courts in the case of a crimes already previously mentioned in subparagraphs 8.1.1(1)(a)(ii), (a)(iii) or (b)(i) of the Ministerial Direction.
Noting the nature of the Applicant’s family violence offending, and in light of the concessions already made by the Applicant, the Tribunal finds that the Applicant’s offending can only be categorised as: ‘very serious’.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) of the Ministerial Direction provides that, when considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) then provides that, when assessing the future risk that may be posed by the non-citizen to the Australian community, decision makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of Harm Should the Applicant Engage in Further Criminal or Other Serious Conduct and Likelihood of the Applicant Engaging in Further Criminal or Other Serious Conduct in the Future
The Respondent submits that the nature of the harm that may arise in the event that the Applicant were to re-offend is very serious, and could involve physical and psychological harm to members of the Australian community (including the Applicant’s wife or any other domestic partner), with related adverse consequences for the public health and justice systems.[60]
[60] Exhibit R2, paragraph 32.
In relation to the likelihood of the Applicant engaging in further serious or criminal conduct in the future, the Respondent submits that the risk of same is now unacceptable and must weigh heavily in support of non-revocation of the visa cancellation decision, because:[61]
·There is no expert medical or other rehabilitative evidence before the Tribunal demonstrating that the Applicant is of either ‘low’ or ‘no’ risk of re-offending.
·The Applicant did not seek to outline any factors on his personal circumstances form that may have contributed to his offending behaviours. The Respondent submits that this demonstrates a lack of insight by the Applicant.
·The evidence reveals the Applicant to have “a serious issue with violence and aggression”, and that there is no/insufficient evidence of the Applicant having undergone any form of rehabilitation for that.
·The Applicant has “a lengthy history of committing offences in Australia over a relatively short period” and previous sentences have not deterred the Applicant from further offending. The Applicant’s criminal record reveals a “concerning history of committing domestic violence offences”.
·Only four months prior to having committed a strangulation offence in a domestic context the Applicant had been warned by a Magistrate regarding the gravity of this offence.
·The Applicant has been incarcerated since February 2020, such that any claims of his not re-offending remain matters that are entirely untested, in an unsupervised environment.
[61] Exhibit R1, paragraph 33.
In relation to the question of risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Applicant submits that his offending arose in the context of a dysfunctional relationship with his wife LDM; the Applicant having a serious health condition; and illicit drug use. The Applicant submits that he should now be regarded as presently only a ‘low’ risk of further offending because: [62]
·     The Applicant has and can remain abstinent from drug substances.
·     The Applicant has completed drug rehabilitation programs.
·     The Applicant has gained an understanding of the interaction of personal and relationship stress, as precursors to family violence.
·     The Applicant has the promise of a stable place of domicile.
·     The Applicant has the skills and qualifications to gain meaningful employment.
·     The Applicant has the connection of significant friendship support.
[62] Exhibit A1, paragraphs 29 to 34.
The Applicant submits that his commitment to ceasing drugs has been strengthened by:[63]
·Prison serving its purpose of individual deterrence on the Applicant.
·His ceasing drugs in any form as a result of his imprisonment, and committing to abstinence even where it was made available to him (in the context of illegal substance use in prison in the form of contraband).
·The Applicant’s gained insight as a result of:
obeing clean of drugs and subsequently gaining a clear perspective and grasp on reality and the consequences to his actions;
ohis remorse for the (emotional and physical) pain he caused his victim;
orealisation of how his magnitude of loss as a direct result of his offending and decision making, including separation from his children, the trust of loved ones, a relationship (with his victim, LDM), employment opportunities, and time; and
othe education and awareness raised by the rehabilitation courses he has engaged in, to date.
[63] Exhibit A1, paragraph 32.
Finally, the Applicant submits that the success of his rehabilitation is demonstrated by:[64]
·His ability to remain drug free within the community prior to his sentencing and within prison and immigration detention (where drugs are available, though deemed contraband).
·His insight and remorse into his offending, and the circumstances that led to that offending (within the context of his stress and anger management (particularly in the context of partner relationships) and substance abuse).
[64] Exhibit A1, paragraph 33.
Ultimately, the Tribunal is unpersuaded by any of the Applicant’s submissions regarding the success of his rehabilitation, or as to the appropriateness of assessing the Applicant as only now presenting as a ‘low’ risk of future offending.
The Applicant was warned by Magistrate Cornack on 13 July 2017 regarding the gravity of domestic violence choking, yet only approximately four months later the Applicant was charged with further serious family violence offences, including an offence of choking of his wife, LDM in circumstances wherein the Applicant was already subject to the terms of a DVO restraining him from that.
Although there is evidence that the Applicant completed a six day drug rehabilitation program during the period 4 April 2018 to 9 April 2018, followed by further out-patient sessions at the Princess Alexandra Hospital Drug and Alcohol Assessment Unit until August 2018, the only report available from that treatment is a two paragraph report, dated 6 November 2020, that indicates a self-report by the Applicant of “sustained abstinence”.[65] That self-reporting is now exceedingly difficult to reconcile with the Applicant having been apprehended more recently – and in immigration detention no less - on 29 September 2020 engaged in the process of clandestine alcohol distillation and having been apprehended, on 16 April 2021, attempting to smuggle large quantities of opioids, amphetamines and marijuana back in to immigration detention. These things, particularly when assessed against the backdrop of the Applicant’s prior offending, do not afford the Tribunal with any basis for confidence that the Applicant has turned away from drugs as has been submitted, and which the Applicant himself has described as a key factor giving rise to his domestic violence offending.
[65] Exhibit A2, pages 10 to 12.
In the Tribunal’s assessment, the Applicant still presents as an entirely unacceptable risk of re-offending. The gravity of the Applicant’s past family violence offending, particularly the offences of choking and assault occasioning actual bodily harm committed against his wife LDM on 2 November 2017, is such that even a ‘very low’ risk of re-occurrence would still be enough to be unacceptable, in the terms now contemplated in paragraph 8.1.2(1) of the Ministerial Direction.
Conclusion: Primary Consideration 1
As to Primary Consideration 1, the Tribunal concludes that protection of the Australian community must weigh determinatively against revocation of the visa cancellation.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)     The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)     This consideration is relevant in circumstances where:
a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)     In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a) the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.    the extent to which the person accepts responsibility for their family violence related conduct;
ii.   the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
The Respondent submits that Primary Consideration 2 weighs heavily against revocation of the visa cancellation decision, because of the following: [66]
·Domestic violence offending by the Applicant resulting in his being convicted on each of 26 May 2020, 30 July 2018, 13 July 2017 squarely fall within the definition of ‘family violence’ in paragraph 4(1) of the Ministerial Direction.
·The particulars relating to the DVO application made by the Applicant’s wife on 14 December 2016 reveal that the Applicant had threatened that he would “hurt her, pulled her hair out, head butted her, twisted her sleeve causing bruising by pinching the skin, threatened to kill her cat and kittens, threatened to kill her if she left. He threatened to kill her and then himself and would find her if she left. The applicant called her a ‘slut’ and said that ‘even a prostitute is better than [her] because she takes money for services’. The victim also stated that the applicant pulls her hair, sometimes to the point that it rips out of her skill and punches her in the head. He threatened to post facebook photos of her unclothed.”
·The particulars relating to the DVO application made by the police on 27 January 2017 reveal that “[p]olice observed the victim to have red marks around her neck and throat, a small cut on her forehead, a cut on her arm and bruising on her forearm. The victim was shaking and terrified that police were at the address. Police identified that the victim had previously made an application for a domestic violence order in November 2016, but this application was withdrawn. The victim told the police that she had been regularly physically assaulted in the home usually with a closed fist and she was terrified of the applicant. The victim reported that she had been punched by the applicant at least once per week. There was an argument with the applicant and victim on 26 January 2017, which involved the applicant taking the victim by the arm, pushing her into the bedroom, took her phone and kept her in the bedroom. After the victim took her phone, the applicant became angry and placed his hands around her neck and throat and squeezed down for a few seconds causing red marks on her neck and throat. Police were concerned by the applicant’s violence towards the victim and his violent and controlling behaviour towards her”.
·Proper consideration of the factors specified in paragraph 8.2(3) of the Ministerial Direction will inevitably lead the Tribunal to the conclusion that the Applicant’s family violence has caused an unacceptable burden on public resources, and on his victims, and there is no evidence of the Applicant having undertaken any effort at rehabilitation.
[66] Exhibit R1, paragraphs 36 to 39.
In relation to matters of family violence, the Applicant has conceded that this primary consideration weighs against revocation, yet submits that the countervailing considerations - the detriment that will be caused to his children; when combined with the significant social ties that the Applicant has to Australia; and the impediments that he will likely face if now deported to Italy - have the result that family violence (whether by itself or when considered in combination with other considerations) should not outweigh revocation of the visa cancellation.[67]
[67] Exhibit A1, paragraphs 38 to 40.
The Tribunal does not accept the Applicant’s submission regarding the weight that should attach to this primary consideration. Elsewhere in these reasons the Tribunal will assess the weight that it is appropriate to attach to the best interests of children, the Applicant’s ties to the Australian community and the extent of any impediments if the Applicant is now removed from this country. It is sufficient, for present purposes, to state that the collective weight of these other factors is not enough to outweigh family violence as a consideration requiring non-revocation of the visa cancellation decision.
The Ministerial Direction specifies that acts of family violence by non-citizens are to be treated as ‘serious concerns’,[68] yet also goes on to specify that the extent of the Government’s concerns in this regard “are proportionate to the seriousness of the family violence engaged in by the non-citizen”, when assessed against the considerations expressed in paragraphs 8.2(3)(a) – (d) of the Ministerial Direction. Here now applying the frame of reference mandated by paragraph 8.2(3) of the Ministerial Direction, in the specific case of the documented domestic violence events of the Applicant, the Tribunal concludes as follows:
8.2(3)(a) Frequency of the Applicants family violence/any trend of increasing seriousness
[68] Ministerial Direction paragraph 8.2(1).

The Applicant has only been in Australia for eleven years. His domestic violence offending commenced within a few months after his first arrival and has then been recurrent, only actually ending in consequence of his imprisonment for serious acts of domestic violence against his wife, LDM. There has been an observable trend of increasing seriousness in the Applicant’s family violence.
8.2(3)(b) Cumulative effect of repeated acts of family violence
The Tribunal concludes that the Applicant’s marriage to LDM has been marked by recurrent episodes of conflict between them and that the Applicant reacts to that inappropriately, by resorting to acts of family violence. The Tribunal concludes that recurrent insistence of family violence over the time frame revealed in the Applicant’s offending must have had an adverse cumulative effect on LDM and also on the children, EDM and CDM.
8.2(3)(c)Rehabilitation achieved since the date of the Applicant’s last act of family violence
The Tribunal notes that the Applicant has undertaken drug addiction treatment and claims now to be free from the effects of addictive drugs. Notwithstanding that, the Tribunal has significant residual doubt as to the efficacy of these claims, particularly in light of the Applicant’s recent involvement with illicit substances whilst in immigration detention.
Furthermore, there is some evidence of the Applicant having participated in anger management treatment programs whilst in prison. Yet, there is no evidence before the Tribunal of the success of any of that treatment. In these circumstances, the Tribunal places limited weight on any protective effect now claimed to flow from the fact of that treatment.
8.3(d) Whether the Applicant has re-offended since being warned or made aware of the consequences of further acts of family violence
On 13 July 2017, Magistrate Cornack did warn the Applicant when he appeared before her in the Holland Park Magistrates Court regarding the serious consequences that might flow from acts of choking or strangulation in a domestic violence context. Notwithstanding that warning, the Applicant did re-offend in precisely the manner that he had been warned against.
Conclusion: Primary Consideration 2
The Tribunal concludes that Primary Consideration 2 attracts a very substantial measure of weight against revocation of the visa cancellation decision.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Ministerial Direction compels a decision maker to make a determination about whether cancellation or refusal under s.501, or non-revocation under s.501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) then contain further stipulations. Paragraph 8.3(2) 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. Paragraph 8.3(3) provides that if there are two or more relevant children, the best interests of each child should be given individual consideration, at least to the extent that their interests may differ.
Paragraph 8.3(4) of the Ministerial Direction then sets out a number of factors that are to be taken into consideration regarding the best interests of minor children in Australia:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant is the biological father of two daughters, child EDM, now aged about seventeen years, and CDM, presently aged about eight years.[69] There is no evidence before the Tribunal to suggest that the interests of EDM differ from those of her younger sister, CDM.
[69] Exhibit G1, G7, page 49.
The Applicant submits that non-revocation of the visa cancellation decision would cause ‘significant detriment’ to each of EDM and CDM, and that the best interests of each of them now weigh ‘significantly’ in favour of revocation of the visa cancellation decision, because of the following considerations: [70]
[70] Exhibit A1, paragraphs 45 to 50.
·The nature and duration of the relationship between both children and the Applicant can be described as follows:
oThe Applicant has been an active father who has contributed both financially and non-financially to the lives of both children since their birth;
oThe children have expressed a desire to see their father, and a preference for him to remain present in Australia; and
oThe Applicant has access to the children in line with the mother’s consent (presently by telephone or in person, within the limits of immigration detention, including visitation rights and quarantine restrictions).
·Cumulatively, the Applicant has approximately 12 years in total before each of the children turns 18 years old, and whilst there is a current DVO restricting contact, contact is permitted with the written consent of LDM. It is the Applicant’s evidence that LDM currently permits such contact.
·There is no evidence that the children have been negatively impacted by the Applicant’s criminal conduct.
·The likely effect of separation from the Applicant would cause detriment to the children, particularly in circumstances where no technological advancement can possibly ameliorate the detriment that will be caused by their geographical separation from their father; and the ability of the children to maintain a meaningful relationship with their father is further hindered by the sheer geographical distance and financial costs of travel from Australia to Italy.
·It is conceded that due to the breakdown of the relationship with the children’s mother, LDM, the children are in their mother’s care. However, it is submitted that: (a) the cancellation of the Applicant’s visa nonetheless has a detrimental effect on the children which cannot be mitigated by their mother or a third party, particularly in circumstances where the Applicant plays a parental role and had done for a significant portion of the children’s lives; and (b) any permanent absence from his children will ultimately be of detriment to the children as it permanently dissolves any option for shared parental arrangements, family reunion and tears at the very fabric of the family unit.
·There is no evidence that the children have been, or are at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way; nor that the children have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.
The Respondent submits that the best interests of the children should be given lesser weight, for the following reasons: [71]
·The mother of the Applicant’s children, LDM presently fulfills the day-to-day parenting role.
·The Applicant’s relationship with his daughters has been marked by lengthy absences. The sentencing remarks given by Moynihan DCJ on 26 May 2020 refer to the Applicant not having had any contact with his daughters since 2018, because of a protection order made on 30 July 2018. This order continues to remain extant, until 29 July 2023.
·The extent to which the Applicant might play a positive parental role in the lives of his daughters in the future is questionable, in circumstances wherein the risk of the Applicant committing further acts of domestic violence against their mother remains as a real possibility.
·EDM will turn 18 before the date of expiration of the DVO currently precluding the Applicant from having any contact with her.
·There is no evidence before the Tribunal that the Applicant could not maintain contact with his daughters by telephone or other digital means as permitted by law.
[71] Exhibit R1, paragraph 41.
As to the factors now adumbrated in paragraph 8.3(4) of the Ministerial Direction, the Tribunal determines as follows:
a)the nature and duration of the relationship between the child and the non-citizen.
The nature of the relationship between the Applicant and his daughters is that of biological parent, and child. The relationship commenced at birth and the evidence heard by the Tribunal suggests that the Applicant has contributed to their lives in both a financial and non-financial sense; yet that the quality of that father-daughter relationship has been marred for a long time because of ongoing domestic conflict between the Applicant and their mother, LDM, which has included both threats of, and actual instances of violence towards LDM. Some of these have arisen in the presence of the children. Without doubt, this history would have had a corrosive influence on the quality of the Applicant’s relationship with his own daughters.
b)the extent to which the non-citizen is likely to play a positive parental role in the future
Even if the Applicant were to be released into the community, the continuing effect of the current DVO will last until 29 July 2023, thus precluding him from having any contact with his daughters, whom the Applicant already has not seen since 2018.
In this context, the extent to which the Applicant might play a positive parental role in the lives of his daughters remains quite doubtful.
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
In light of the Applicant’s offending and in further light that the Applicant has been prohibited by law from seeing his daughters since 2018; and will not now be allowed to see them again before 29 July 2023, the Tribunal assesses that it is likely that the Applicant’s past conduct has had a negative impact on his daughters. So too, in light of the Tribunal’s assessment of the Applicant’s risk of re-offending, any future conduct will also be likely to have a risk of negative impact on his daughters.
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.
The Tribunal considers that the ability of the children to maintain any form of effective or meaningful contact with the Applicant by ‘other means’, in the event that the Applicant is deported to Italy is quite low.
e)whether there are other persons who already fulfil a parental role in relation to the child
The Applicant’s estranged wife, LDM, performs a day-to-day parental role for each of EDM and CDM.
f)any known views of the child
The children’s views are completely unknown to the Tribunal. That stated, the prima facie position remains that their views are presumed to be in support of their father remaining in this country.
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
Each of EDM and CDM have been named in DVOs as persons requiring protection from the Applicant.
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
There is only limited evidence before the Tribunal in relation to this consideration. There is some evidence that the children witnessed some of the family violence episodes between the Applicant and their mother LDM.
Conclusion: Primary Consideration 3
Ultimately, the Tribunal concludes that the best interests of each of EDM and CDM are generally in favour of revocation of the visa cancellation decision, however only quite limited weight can attach to Primary Consideration 3 during the Tribunal’s assessment of the visa cancellation decision.
PRIMARY CONSIDERATION 4: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.4(1) of the Ministerial Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Serious conduct in breach of this expectation by a non-citizen, or an unacceptable risk of that by a non-citizen ordinarily gives rise to a community expectation that the Government will not then allow the non-citizen to remain in Australia
Paragraph 8.4(2) of the Ministerial 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 the 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:
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.
Paragraph 8.4(3) of the Ministerial Direction provides that the above expectations of the Australian community apply regardless whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Ministerial 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 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“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 Ministerial Direction.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
The Respondent submits that “[o]bserving the norm stipulated in paragraph 8.4(1), and in accordance with the guidance provided by Principles 5.2(2), (3) and 4 of Direction 90, the Australian community would expect that the applicant should not continue to hold a visa on account of his offending, the harm caused to his victim and the risk of further offending and the infliction of harm”; such that this primary consideration weighs heavily against revocation of the visa cancellation decision. [72]
[72] Exhibit R1, paragraph 45.
The Applicant submits that this factor weighs in favour of non-revocation, yet that only moderate weight should now attach to this consideration as part of the Tribunal’s deliberations, by reason that regard should be had for the fact of: [73]
·The Applicant’s limited criminal history, in light of the length he has lived in the Australian community (since 2010).
·The Applicant’s minor children living in Australia.
·The Applicant has significant social and employment ties to Australia.
[73] Exhibit A1, paragraphs 54 to 56.
In relation to the particular matters specified in paragraph 8.4(2) of the Ministerial Direction, the Tribunal observes the following:
a) acts of family violence
The Applicant has engaged in repeated acts of family violence that have increased in seriousness, over time.
b)forced marriage
There is no evidence, nor any suggestion, of matters as raised in paragraph 8.4(2)(b) being relevant in the case of the Applicant.
c)commission of serious crimes against women, children or other vulnerable members of the community
There is evidence that the Applicant has engaged in serious crimes against his wife, LDM.
d)commission of crimes against government representatives or other officials
There is no evidence, nor any suggestion, of matters as raised in paragraph 8.4(2)(d) being relevant in the case of the Applicant.
e)involvement in human trafficking or people smuggling, or in crimes that are of a serious international concern
There is no evidence, nor any suggestion, of matters as raised in paragraph 8.4(2)(e) being relevant in the case of the Applicant.
f)involvement in worker exploitation.
There is no evidence, nor any suggestion, of matters as raised in paragraph 8.4(2)(f) being relevant in the case of the Applicant.
Conclusion: Primary Consideration 4
The Tribunal concludes that Primary Consideration 4 must now weigh very significantly in favour of visa cancellation. In this case the weight that must attach to Primary Consideration 4 is another consideration that is determinative of the outcome.
OTHER CONSIDERATIONS
Of the various other considerations listed in Paragraph 9(1) of the Ministerial Direction, each of sub-paragraphs (b), (extent of impediments if removed); (c), (impact on victims) and (d), (links to the Australian community) are here relevant.
(b) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 9.2 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.

The Applicant is aged 41 and suffers from Marfan Syndrome, a genetic condition giving rise to significant cardiac implications.
The Applicant has already required cardiac surgery and submits that if he is forcibly removed to Italy he will not have access to the same quality of public health care as is available to him in this country. The Applicant also submits that he will face a significant degree of practical financial and emotional hardship upon his forced deportation to Italy, due to his separation from his children and lack of social, medical and economic support in that country.[74]
[74] Exhibit A1, paragraphs 59 and 60.
The Tribunal is unable to accept the extent of impediments now claimed. The Applicant is an Italian citizen who lived in that country until aged 30. There could not be any conceivable language or cultural barriers in those circumstances. The Applicant is trade qualified as a carpenter having qualified as such in Italy, and worked as such in Italy; and also worked in Italy as a mechanic, prior to his arrival in Australia. There is no reason to believe that he could not now return to similar occupations, once back in Italy. Although the Applicant has a significant health condition that will require ongoing monitoring and treatment, Italy is a modern industrialised country with a public health system available to all citizens. The Applicant will also have available to him the same social welfare entitlements as pertain in the case of all other Italian citizens. In this context therefore, any impediments that are likely to confront the Applicant are not so insuperable as to warrant these being categorised as ‘significant’.
Overall, the extent of any impediments that the Applicant may face if forcibly removed to Italy are such that this other consideration weighs in only a limited manner in favour of revocation of the cancellation decision.
(d)Impact on victims
The Applicant submits that there is no evidence to suggest that there might be any impact on the victims of his criminal behaviour, such that this consideration bears only neutral weight.[75] Conversely, the Respondent points out:[76]
“One of the victims of the applicant’s offending is his wife. Although there is no statement before the Tribunal from the applicant’s wife, the Tribunal should take into account that there is a risk of the applicant re-offending and committing further acts of family violence against her”.
[75] Exhibit A1, paragraphs 62 and 63.
[76] Exhibit R1, paragraph 54.
The Tribunal agrees that the adverse impact of the Applicant’s domestic violence offending towards his estranged wife LDM must be taken into consideration. It is another factor that weighs in support of non-revocation.
(d) Links to the Australian community
In consideration of this Other Consideration (d), paragraph 9.4 of the Ministerial Direction requires that decision makers must have regard to the following two factors, as set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
9.4.1 The strength, nature, and duration of ties to Australia
The Applicant submits that this factor should weigh strongly in favour of revocation of the visa cancellation decision because:[77]
·Prior to engaging in his criminal conduct, the Applicant had positively contributed to the Australian community, by exhibiting a strong work ethic.
·The Applicant has social links with people who have an indefinite right to stay in Australia, including friends and acquaintances.
·The Applicant’s children are Australian citizens and reside in Australia.
·The negative effect of non-revocation on the Applicant’s children.
[77] Exhibit A1, paragraphs 64 and 65.
From those matters nominated by the Applicant above, the Tribunal notes that the latter two points are each more appropriately considered in relation to Primary Consideration 3 (best interests of minor children in Australia). Although it is accepted that the Applicant has made financial and other contributions in consequence of his employment and work in Australia, and has made social links with friends and acquaintances, the strength of these factors is not assessed by the Tribunal as now giving rise to more than only limited weight in favour of revocation.
Overall, the strength, nature and duration of the Applicant’s ties to the Australian community are such that this other consideration weighs in only a limited manner in favour of revocation of the cancellation decision.
9.4.2 The impact on Australian business interests
Generally, this consideration will only be given weight where the decision would significantly compromise the delivery of a major project or the delivery of an important service in Australia.
The Applicant submits that this consideration is not relevant.[78]
[78] Exhibit A1, paragraph 66.
Only neutral weight attaches to the Tribunal’s deliberations because of this factor.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: Not applicable, thus neutral weight.
·extent of impediments if removed: This other consideration weighs in only a limited manner in favour of revocation of the cancellation decision.
·impact on victims: weighs in favour of non-revocation.
·links to the Australian community:
ostrength, nature, and duration of ties to Australia: This other consideration weighs in only a limited manner in favour of revocation of the visa cancellation decision
othe impact on Australian business interests: Neutral weight in favour of revocation of the visa cancellation decision arises because of this other consideration.
CONCLUSION
The Tribunal is required to weigh all of the Considerations, in accordance with the Ministerial Direction:
·Primary Consideration 1: determinative weight against revocation;
·Primary Consideration 2: a very substantial measure of weight against revocation;
·Primary Consideration 3: a limited measure of weight in favour of revocation;
·Primary Consideration 4: a very significant measure of weight against revocation.
·Extent of Impediments: a limited measure of weight in favour of revocation.
·Impact on victims: weighs against revocation.
·Links to the Australian community: a limited measure of weight in favour of revocation.
The Tribunal concludes that a holistic application of the considerations in the Direction to the evidence therefore favours non-revocation of the mandatory cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 151 (one hundred and fifty-one) paragraphs are a true copy of the reasons for the decision herein of Member Andrew McLean Williams

.................................[SGD].......................................
Associate
Dated: 25 June 2021

Date of hearing: 4 April 2021

Applicant:

Self-represented (via video link)

Solicitor for the Respondent:
Ashley Burgess (via video link)

Sparke Helmore

Annexure A – Decision dated 5 May 2021

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2021/0576

General Division )
Re: William Di Meco

Applicant
And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
DECISION
TRIBUNAL:              Member Andrew McLean Williams
DATE:   5 May 2021
PLACE:                    Brisbane
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 10 February 2021 to not revoke the cancellation of the Applicant’s visa.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.

..............................[SGD]................................
Member Andrew McLean Williams
ANNEXURE B - EXHIBIT REGISTER

Between William DI MECO (Applicant)
AndMINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS (Respondent)

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

G1

G Documents (pages 1 to 263)

-

5 March 2021

R1

Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 16)

15 April 2021

15 April 2021

R2

Respondent’s Tender Bundle (pages 1 to 67)

-

15 April 2021

R3

Incident Reports (two pages)

-

20 April 2021

A1

Applicant’s Statement of Facts, Issues and Contentions (pages 1 to 16)

1 April 2021

1 April 2021

A2

Applicant’s further evidence (pages 1 to 17)

-

21 April 2021

A3

Statement of Ms E (friend) (four pages)

undated

21 April 2021

A4

Statement of the Applicant’s step-son (one page)

undated

22 April 2021

A5

Applicant’s submissions (10 pages)

23 April 2021

24 April 2021

[2021] AATA 1952

5 May 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
G1	G Documents (pages 1 to 263)	-	5 March 2021
R1	Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 16)	15 April 2021	15 April 2021
R2	Respondent’s Tender Bundle (pages 1 to 67)	-	15 April 2021
R3	Incident Reports (two pages)	-	20 April 2021
A1	Applicant’s Statement of Facts, Issues and Contentions (pages 1 to 16)	1 April 2021	1 April 2021
A2	Applicant’s further evidence (pages 1 to 17)	-	21 April 2021
A3	Statement of Ms E (friend) (four pages)	undated	21 April 2021
A4	Statement of the Applicant’s step-son (one page)	undated	22 April 2021
A5	Applicant’s submissions (10 pages)	23 April 2021	24 April 2021