Fetelika and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 2606

Fetelika and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2606 (18 August 2023)
Division:GENERAL DIVISION
File Number(s): 2023/3758
Re:Frank Fetelika
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:18 August 2023
Place:Perth

The decision of the delegate of the Minister dated 26 May 2023 not to revoke the cancellation of the Applicant’s Special Category (Class TY) (Subclass 444) visa is set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.
............[Sgd]............................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – s 501CA(4) of Migration Act – decision not to revoke mandatory cancellation of visa – Applicant is a citizen of New Zealand – assault – family violence – Direction 99 considered – strength, nature and duration of Applicant’s ties to Australia – best interests of minor children and impact on victims weigh in favour of revocation – low risk of reoffending – there is another reason to revoke the visa cancellation decision – reviewable decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499(1), 499(2A), 501(3A), 501(6)(a), 501(7)(c), 501CA(4)
Migration Amendment (Aggregate Sentences) Act 2023
CASES
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 1842
CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Pearson v Minister for Home Affairs [2022] FCAFC 203
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
Franklin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 18
FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454
FYBR v Minister for Home Affairs [2019] FCA 500
Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 66
Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3445
Minister for Home Affairs v HSKJ [2018] FCAFC 217; [2018] FCAFC 217; 266 FCR 591
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Pavey and Minister for Home Affairs [2019] AATA 4198
Pearson v Minister for Home Affairs [2022] FCAFC 203
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA paras 4(1) 6, 7, 8, 8.1, 8.1.1(1)(a)-(e), 8.1.2(1)-(2), 8.2, 8.3(1)-(4), 8.4(1)-(4), 8.5(1)-(2), 9.1, 9.2(1), 9.3
REASONS FOR DECISION
Deputy President Boyle
18 August 2023
THE APPLICATION

The Applicant seeks review of the decision of a delegate of the Respondent (Minister) dated 26 May 2023[1] not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (Act), the cancellation of the Applicant’s Special Category (Class TY) (Subclass 444) visa.
[1] R1/19.
The Applicant’s visa was cancelled on 4 June 2019 under s 501(3A) of the Act because he did not pass the character test by reason of having a “substantial criminal record”[2] (on the basis that he had been sentenced to a term of imprisonment of 12 months or more (s 501(6)(a) and 501(7)(c) of the Act) and was serving a sentence of imprisonment on a full-time basis.
[2] R1/40-1.
The Applicant made representations for the revocation of the cancellation of his visa and, on 26 May 2023, the delegate of the Minister made the decision not to revoke the cancellation of the visa (see [1] above). The Applicant was advised of that decision on 29 May 2023.
The application for the review of the decision not to revoke the cancellation of the Applicant’s visa[3] was made on 31 May 2023 pursuant to s 500(1)(ba) of the Act, which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister made under s 501CA(4) of the Act.
[3] R1/4-9.
BACKGROUND
The applicant is a citizen of New Zealand, born in October 1987. He first arrived in Australia on 10 May 2010.
On 4 June 2019, the Applicant's visa was cancelled under s 501(3A) of the Act (see [2] above).
By letter dated 17 June 2019, the Applicant's then-lawyers made representations to have the cancellation decision revoked under section 501CA(4) of the Act[4] with further representations and documents being provided thereafter.[5]
[4] R1/67–69.
[5] R1/70-178.
On 25 January 2021, the Minister found that the power under s 501CA(4) to revoke the cancellation of the visa under s 501(3A) was not enlivened.[6]
[6] R1/206–207; 227.
On 30 March 2022, the Applicant sought judicial review of the Minister's non-revocation decision.[7] On 16 February 2023, Justice Murphy of the Federal Court of Australia made orders quashing the non-revocation decision and directed the Minister to re-determine the Applicant's application for revocation of the cancellation decision according to law.[8]
[7] R1/200–223.
[8] R1/202.
On 13 February 2023, the Applicant's visa was reinstated and he was released from immigration detention following the decision of the Full Court of Federal Court of Australia in Pearson v Minister for Home Affairs.[9] The Applicant’s visa had been cancelled on the basis of an aggregate sentence of imprisonment.
[9] [2022] FCAFC 203; R1/223.
On 17 February 2023, the Migration Amendment (Aggregate Sentences) Act 2023 (Cth) came into effect the consequence of which was that a decision to cancel a visa on the basis of an aggregate sentence of 12 months or more imprisonment was taken, for all purposes, to have always been valid: Franklin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[10]
[10] [2023] FCAFC 18 at [50]–[54] (per Perram, Burley and Downes JJ).
As a result, the Applicant was taken back into immigration detention.
On 2 March 2023, the Applicant provided further information in support of his application for revocation of the cancellation decision.[11]
[11] R1/171–178.
By letter dated 6 April 2023, the Applicant was advised that a delegate of the Minister would make a fresh decision on the Applicant's application for revocation of the cancellation decision.[12] The Applicant was also invited to provide any further information in support of his application.[13]
[12] R1/ 227–228.
[13] R1/227.
On 26 May 2023, a delegate of the Minister made the decision referred to in [1] above.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act relevantly provides that:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Act relevantly provides:
For 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)); ...
(Original emphasis.)
A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
...
(Original emphasis.)
Section 501CA of the Act relevantly provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
...
(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 section 501); or
(ii) that there is another reason why the original decision should be revoked.
(Original emphasis.)
Section 499(1) of the Act provides that:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Act provides that “A person or body must comply with a direction under subsection (1).”
Direction 99
On 23 January 2023, the relevant Minister for the purposes of s 499 of the Act made a direction titled “Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 99).
The commencement date for operation of Direction 99 was 3 March 2023. Upon its commencement, Direction 99 revoked the operation of “Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 90).
Paragraph 5.1 sets out the objectives of Direction 99. Relevantly, para 5.1 provides:
1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.
...
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
(4) The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of Direction 99 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke the cancellation of a visa under s 501CA of the Act. These principles 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 measureable (sic) 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 noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) 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 8.55(2) (sic) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable (sic) risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 99 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 99 (where such considerations are relevant) in order to determine whether the decision to cancel the visa under s 501(3A) of the Act should be revoked.
Guidance in relation to how the relevant considerations are to be taken into account is found in para 7 of Direction 99 which provides that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of Direction 99 is as follows:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are 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 strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
Paragraph 9 of Direction 99 is as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) Legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
THE HEARING AND THE EVIDENCE
The application was heard on 7 August 2023. The Applicant appeared on his own behalf and the Minister was represented by Ms S Frankel. The following witnesses gave evidence:
(a)The Applicant;
(b)Ms Melissa Tome; and
(c)Mr Fisiipeau Tome.
The following documents were admitted into evidence:
(a)Applicant's statement dated 17 July 2023 (A1);
(b)Letter of Support from Vivianne Jones dated 10 July 2023 (A2);
(c)Letter of Support from the Applicant’s son, [C] dated 4 July 2023 (A3);
(d)Letter of Support from the Applicant’s son, [O] (undated) (A4);
(e)Letter of Support from Shayla Stanley dated 4 July 2023 (A5);
(f)Letter of Support from Phredy Neli dated 14 June 2023 (A6);
(g)Letter of Support from Rowena Meehan dated 11 July 2023 (A7);
(h)Letter of Support from Francis Chapman (undated) (A8);
(i)Letter of Support from Peniamena Fetelika dated 9 July 2023 (A9);
(j)Character Reference from Matthew Begbie dated 12 July 2023 (A10);
(k)Section 501G Documents dated 21 June 2023 (R1); and
(l)Supplementary G Documents filed 4 August 2023 (R2).
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law.[14] The character test is defined in s 501(6) of the Act (see [17] above). Under s 501(6)(a) of the Act, a person does not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) of the Act (see [18] above) 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...”. The Applicant has been sentenced to a term of imprisonment of more than 12 months and he therefore has a substantial criminal record.
[14] Harrison and Minister for Immigration and Citizenship ([2009] AATA 47; (2009) 106 ALD 66.
The Applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution at the time of the cancelation of his visa on 4 June 2019 . I am satisfied that the elements of s 501(3A) of the Act were satisfied and that the cancellation of the Applicant’s visa under that section was valid.
THE ISSUE FOR DETERMINATION
As the Applicant does not pass the character test, he cannot rely on s 501CA(4)(b)(i) of the Act for the decision to cancel his visa to be revoked. The issue for determination, therefore, is whether the power under s 501CA(4)(b)(ii) should be exercised on the basis that there is another reason why the decision under s 501(3A) should be revoked.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 99 provides that, when decision-makers are considering the protection of the Australian community, they:
(1)... should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen's conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (para 8.1.1)
Paragraph 8.1.1 of Direction 99 relevantly provides:
1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)…
(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;
...
c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e) the cumulative effect of repeated offending;
...

The Applicant’s record of offending, as disclosed by the Australian Crime Intelligence Commission Check Results Report,[15] is as follows:
[15] R1/40-1.

Date of conviction

State

Offence

Result

04/10/2018

NSW

Assault occasioning actual bodily harm-T2

Agg B&E & commit serious indictable offence-people there-SI

Take/detain in company w/i to get advantage occasion abh-SI

Imprisonment (aggregate): 3 years and 6 months commencing 04/10/2018 concluding 03/04/2022

Non parole period: 1 year and 9 months commencing 04/10/2018
Concluding 03/07/2020

08/01/2018

NSW

Drive motor vehicle during disqualification period - 1st off

Bond: 12 months

10/08/2017

NSW

Drive, licence suspended under s 66 Fines Act - 1st off

Fine: $300
Disqualification - driver: 3 months

30/04/2012

NSW

Never licensed person drive vehicle on
road-1st offence

Fine: $100
Costs - court: $81

The Applicant’s record of offending is not extensive. Apart from the three driving related offences, the Applicant’s offending is limited to a single incident, albeit an extended incident, on 28 May 2017. The particulars of that incident and the charges and convictions that arose out of it, were set out in the remarks of Judge Bozic SC in sentencing the Applicant in the New South Wales District Court on 4 October 2018. His Honour said as follows:[16]
[16] R1/43-6.
The facts which are agreed are as follows. The offender and one of the victims Melissa Stanley were in an intimate domestic relationship for five years which ended in mid-April 2017. During their relationship they had two children [who are] aged three and 18 months. Ms Stanley also has two older children from a previous relationship aged eight and seven.
About five weeks after separating from the offender Ms Stanley commenced a relationship with a man by the name of Fisiipeau Tome. At the time of this incident Ms Stanley and Mr Tome had been in a relationship for about a week.
On 27 May 2017, Mr Tome was visiting Ms Stanley…While they were spending time together and drinking, the offender called Ms Stanley on a number of occasions, and was arguing with her.
At about 1am on 28 May 2017, Ms Stanley and Mr Tome returned to an address at [omitted] to relieve the babysitter at Ms Stanley’s home. At about 1.20am they were on the front porch having a cigarette and playing with Ms Stanley’s dogs. The front screen door to the house was closed but unlocked. As they were smoking the offender drove his brother’s car to the premises. His brother is Peniamina Fetelika. The offender got out of the vehicle. He stood about seven feet away from Mr Tome and said, “You’re not staying here with my kids here”. Mr Tome put up his hands and said, “Okay”.
Ms Stanley went into the house and the offender followed her. She screamed at him to get out of the house. The offender had lived in the house with Ms Stanley for only the last week of their relationship and had returned the keys for the house to Ms Stanley when the relationship ended. The house was in her name, but the offender would visit the children there two to three days a week. The offender did not leave the house and he and Ms Stanley continued arguing inside.
Mr Tome began to walk away from the house on the footpath. As he did this, Peniamina Fetelika and Isaac Meehan exited the car, Peniamina’s car. Isaac is the offender and Peniamina’s nephew. Peniamina is the offender’s brother. Isaac is a tall male about six foot three and has an athletic build. The offender and Peniamina are both about five foot seven and are of solid build.
Isaac and Peniamina yelled, “Get out of here”. Peniamina said, “You don’t know who we are”. Mr Tome felt threatened by this, so he took his shirt off. Mr Tome then said, “All three of you mother fuckers, right now, come on”.
The offender approached him, telling Mr Tome that he was not trying to fight him, and asking his cultural background. Mr Tome told the offender that he was half Tongan and half Samoan. Mr Tome then put his shirt back on.
The offender said to him, “You know our culture, you are not supposed to be here, why are you doing this?” Mr Tome told the offender that he was supposed to be staying at a friend of Ms Stanley’s house, as they had earlier organised. There was then a conversation between Mr Tome and the offender in Samoan, in which the offender told him that he just wanted Mr Tome to be away from his children.
At this point Ms Stanley said, “No you can’t tell him what to do this is my house and if I want him to stay here he can stay here”. The offender entered the house, Ms Stanley followed him screaming at him to get out. Mr Tome entered the house, walked upstairs to where the offender and Ms Stanley were arguing, inside the walk-in wardrobe. Mr Tome waited inside, unsure of what to do.
The intimidation occurred then when the offender walked out of the bedroom. Ms Stanley closed the bedroom door behind him, locking it herself meaning that she and Mr Tome were inside. The offender then forced the door with his shoulder, breaking it so that the locking mechanism fell on the floor…The offender burst into the room, saying, “Don’t ever lock the door”. Isaac Meehan was standing behind him.
The yelling and screaming woke up the couple’s 18 month old son, and Ms Stanley’s eight year old daughter. The 18 month old son began to cry. Ms Stanley picked him up and walked downstairs. The eight year old daughter hid in the bedroom in fear.
The argument between Ms Stanley and the offender continued in the lounge room. Ms Stanley told the offender to leave the house. The offender said that he would not leave Mr Tome there with his children. Ms Stanley told him that Mr Tome had a hotel. At this point the offender grabbed Ms Stanley on the shirt near her neck and ripped her shirt. She punched him to the left side of his face, he twisted her hand and pushed her. This is the assault occasioning actual bodily harm.
The offender demanded Mr Tome get out. Mr Tome refused. What then occurred was that the three offenders namely the offender, Isaac Meehan and Peniamina pushed and punched Mr Tome who fell to the ground unconscious. The three offenders then continued to assault him while he was unconscious. Items in the playroom were knocked over and a hole was made in the gyprock of the playroom wall during the incident.
Mr Tome regained consciousness but was unable to open his eyes. He found he was being dragged outside by Meehan and Peniamina Fetelika. The offender followed. Mr Tome’s pants came down and the men had to stop to put them back on. When Mr Tome began to noticeably regain consciousness the offender punched him with both hands in the head and stomach. Meehan and Peniamina joined in the attack in the same way.
The 18 month old child began to cry and the offender took him from Ms Stanley’s arms. Ms Stanley attempted to pull Isaac and Peniamina away from Mr Tome, the offender grabbed her right arm to pull her away from Peniamina and Meehan and hit her in the left side of her face. The force of this hit caused her to fall and momentarily lose consciousness. Peniamina stood over her and repeated said, “You’re not the victim, get up, you’re not the victim”, and both Peniamina and the offender said, “This is your fault, look at what you’ve done”.
While Ms Stanley was on the ground the offender put the 18 month old child on her stomach and assisted the others to drag Mr Tome to the vehicle. The men pushed him into Peniamina’s car and sat him upright. They shut the door. Ms Stanley was calling out, “Get up and get out”. Mr Tome still could not open his eyes. He and Ms Stanley managed to get the car door open and he got out of the car stumbling onto the road. One of the men told him to get back into the car, but he refused.
The three offenders then all punched Mr Tome in the face at once a number of times, causing him again to lose consciousness. Peniamina dragged him back into the car and seated him in the passenger seat. Ms Stanley tried to get to the car door but she was pulled by Peniamina by her hair from behind, causing her to stumble backwards. Mr Meehan got into the back seat of the vehicle and held Mr Tome by the chest against the front passenger seat. Peniamina got into the driver’s seat. Ms Stanley punched the car window, angry at what was happening. The offender went into the house got keys to the vehicle that was parked in the driveway and drove it away. Peniamina also drove his car away with Mr Tome inside.
…
Mr Tome was taken by ambulance to Wyong Hospital. A significant swelling on his left jaw was noted, but after taking x-rays no broken bones were identified. He was admitted for neurological observations and analgesia. Staff noted multiple facial abrasions including his lower lip missing half of its skin, a large superficial abrasion and bruising to his lower back as well as abrasions to the right tip of his fingers.
…
Ms Stanley recorded a domestic violence incident kit statement. She showed police and ambulance officers a small laceration to the inside of her top left lip with some dried blood on the inside of her lips, mild swelling to her left cheekbone, two scratches to her neck, two scratches to her right upper chest, her ripped T-shirt, mild bruising to her left elbow and a scratch on her left arm which she said was sustained during the incident.
His Honour went on to describe the Applicant being arrested by police, interviewed and basically admitting the offences. He then turned to assessing the objective seriousness of the Applicant’s offending:[17]
[17] R1/58-60.
Each of the three offences is objectively serious, particularly the offences of aggravated break, enter and commit a serious indictable offence which has a maximum penalty of 20 years imprisonment and the standard non-parole period of five years and the offence of take and detain occasioning actual bodily harm in company which has a maximum penalty of 25 years imprisonment.
…In assessing the objective seriousness of the aggravated break, enter and commit a serious indictable offence, it is necessary to bear in mind that there are a range of circumstances that can constitute circumstances of aggravation, such as that the offender is armed with an offensive weapon or instrument, the alleged offender used corporal violence, the alleged offender maliciously inflicts actual bodily harm on any person or deprives a person of his or her liberty.
In this case the circumstances of aggravation, namely that the offender knew there were persons present is not as serious as some of the other aggravating factors.
The serious indictable offence of intimidation is a serious offence when committed in a domestic context against a former partner. In my view this offence is below the mid-range but it is certainly not at the bottom of the range.
…
The assault is a serious offence, but not as serious as some where there is more prolonged and serious violence and more serious actual bodily harm.
I turn now to the objective seriousness of the offence of specially aggravated kidnapping. This is objectively serious as is indicated by the fact that the maximum penalty is 25 years imprisonment.
…
The offence in the present case is an offence under s 86(3) which was committed both in company and where the victim sustained actual bodily harm.
…
In assessing the objective seriousness I accept that there was no gratuitous cruelty, no demand for a ransom, no calls to threaten or intimidate others. This was not a siege situation and it was not what has sometimes been described as vigilante conduct. I accept that there was no planning, that the offence was essentially spontaneous and that there were no medium or long term injuries to the victim.
Nevertheless, the offences is objectively very serious and it is certainly not at or towards the bottom of the range for offences of this kind.
It is an aggravating feature of the s 112(2) offence that it was committed in the home of the victim and in the presence of children.
The Minister contended[18] that the nature of the Applicant's conduct is so serious that even strong countervailing considerations are insufficient to justify there being another reason to revoke the mandatory cancellation of the Applicant's visa, citing para 5.2(6) of Direction 99. The Minister points out that the offending occurred at Ms Stanley’s house in front of the Applicant and Ms Stanley’s two minor children and Ms Stanley’s two other children. The Minister also points to Judge Bozic’s assessment that “each of the three offences is objectively serious” (see [38] above).
[18] Minister’s SFIC para 27.
The Minister also pointed to the fact that the Applicant received custodial sentences and that such sentences are of last resort, citing Pavey and Minister for Home Affairs[19] at [44]. The Minister submitted that the Applicant’s offending is very serious as it involved crimes of a violent nature against women and acts of family violence which are to be viewed very seriously under paras 8.1.1(1)(a)(i)–(iii) of Direction 99. The Minister also contended that there is a trend of increasing seriousness in the Applicant’s offending for the purposes of para 8.1.1(1)(d) of Direction 99.
[19] [2019] AATA 4198.
Consideration – Nature and seriousness of the conduct
This is a slightly unusual case in that, while clearly serious, the Applicant’s offending (apart from the relatively minor driving offences) is limited to the one incident. Prior to the night in question, the Applicant had no history of violent behaviour. I asked the Applicant what caused him to behave as he did:[20]
DEPUTY PRESIDENT: So in your own words, why do you think you did behave – what was it that caused you to behave on that day in that way …?
APPLICANT: I just – I just felt at the time, you know, there was a man at the property. You know, I thought I don’t want the kids to wake up to a stranger. Like I’ve never seen or met this man before. You know, it had only been three weeks since myself and Melissa, you know, since she ended the relationship. And for myself again, emotions were high. I felt like I lost everything, and that’s what – that’s what led me – led to that situation. It all escalated. I didn’t know how to – I didn’t know how to deal with my emotions at the time.
[20] Transcript at 33.
While it is too often inappropriately deployed, I think that in this case it would be appropriate to describe the Applicant’s behaviour which resulted in his convictions and cancelation of his visa as being out of character. Having made that observation, this consideration does require an objective assessment of the nature and seriousness of the Applicant’s offending. Looking at offending conduct through the prism of the considerations identified in para 8.1.1 of Direction 99 relevant in this case, I find that:
(a)
Paragraph 8.1.1(1)(a) - the Applicant has been convicted of crimes of violence.

His conduct on the relevant night also constituted family violence. I deal with that in more detail under the family violence consideration below. These offences and conduct are to be viewed very seriously.
(b)Paragraph 8.1.1(1)(b) – the Applicant’s offences and conduct do not come within the offences and conduct identified in this subparagraph.
(c)Paragraph 8.1.1(1)(c) - the sentences imposed by the Court (ignoring the sentence imposed for assault occasioning actual bodily harm which would come under sub paras (a)(ii) and (a)(iii)), while at the lower end of the possible sentences for those offences, were still significant sentences reflecting the Court’s assessments of the seriousness of the offending.
(d)Paragraph 8.1.1(1)(d) – as noted above, the Applicant’s relevant offending occurred in the single incident. It could not therefore be said that the Applicant’s offending has been frequent. While chronologically the Applicant’s most serious offences were committed more recently than at least two of the Applicant’s offences of driving without a licence, given the radically different nature and seriousness of the driving offences and the offences committed on 28 May 2017, I do not consider that there is a “trend” of increasing seriousness. The Applicant’s offending is not numerous or frequent enough to establish a trend.
In relation to the Minister’s reliance on the Tribunal’s decision in Pavey and the reference therein at [44] to the imposition of a custodial term as being “regarded as the last resort”, it must be borne in mind that s 501CA(4) deals only with cancellations under s 501(3A) (s 501CA(1)). For s 501(3A) to apply, the applicant must be “serving a sentence of imprisonment” (see [16] above). Accordingly, every case under s 501CA(4) will involve at least one offence for which a term of imprisonment has been imposed. While in relation to any particular offence, the fact that a court has imposed a term of imprisonment is an indication of the court’s view of the seriousness of that offence, the fact that a term of imprisonment has been imposed on an applicant does not, of itself, elevate the applicant’s offending to a higher level than any other applicant being considered under s 501CA(4) of the Act.
(e)Paragraph 8.1.1(1)(e) - Again, the Applicant’s offending is too infrequent and limited in number to give rise to any “cumulative effect”.
Undoubtedly the offences that the Applicant committed on 28 May 2017 were serious. They are not, however, of such a nature that even strong countervailing considerations would be insufficient to justify there being another reason to revoke the mandatory cancellation of the Applicant's visa as contended by the Minister. While the offences were serious, the offending was, as the sentencing judge noted, not premeditated and was, in my assessment, out of character. The sentences imposed by the Court were also not at, or even towards the top end of the scale of sentences for those offences, indicating that they were not considered to be the most serious of that type of offending.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
Paragraph 8.1.2 of Direction 99 relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the non citizen 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 (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of harm to individuals or the Australian community (8.1.2(2)(a))
The nature of the harm to individuals or the Australian community should the Applicant engage in conduct of the type that he did on 28 May 2017 is self-evident and serious.
We need only look to the sentencing judge’s summary of the injuries suffered by Mr Tome and Ms Stanley (see [37] above) to understand the nature of the harm that could be caused of the Applicant were to repeat that behaviour. In addition to the physical injuries of the kind described by the sentencing judge, it is likely that psychological harm arises for such behaviour, not only for the direct victims of the Applicant’s behaviour, but also for those who witness such behaviour, particularly if they are children, as they were in this case.

While the harm caused by unlicenced driving offences is less obvious, such disregard for the law undermines the proper regulation of road use. It also exposes other road users, not only to harm that could be caused by drivers who are not properly trained, but also to the risk of injuries or loss that they may suffer not being covered by compulsory third party insurance which, in most States, does not cover injuries or harm caused by unlicenced drivers.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (8.1.2(2)(b))
By his SFIC, the Minister acknowledged that the Applicant was assessed by Judge Bozic SC as having good prospects of rehabilitation[21] and acknowledged that forensic psychologist Caroline Hare, in her report dated 27 July 2018, assessed that the Applicant’s “likelihood of violently re-offending is reduced”.[22]
[21] R1/55.
[22] R1/135.
The Minister contended, however, that the harm that would be caused if the conduct were to be repeated, is so serious that any risk that it may be repeated is unacceptable, citing para 8.1.2(1) of Direction 99. I do not accept that contention which, in my experience, appears to be a standard contention made by the Minister in most cases involving Direction 99. It is a submission that should be reserved for cases involving only the most serious of conduct and harm. A finding that “any risk that it may be repeated…[is] unacceptable” under para 8.1.2(1), is, in effect, a finding that an applicant’s visa must remain cancelled. If a risk is unacceptable, by definition, it cannot be accepted no matter how strong the countervailing considerations. The Minister does not identify any particular elements or characteristics of the Applicant’s conduct, or the harm that would be caused, which would warrant elevating this case to one coming within the operation of the final sentence of para 8.1.2(1).
The Minister accepted that the Applicant has demonstrated remorse and that the most recent offending was 'situation-specific'. However, the Minister contended that there is limited evidence to indicate that the Applicant has undertaken the recommended interventions to address the factors which led to the most recent offending, including psychological intervention and that there is limited evidence to indicate the specific strategies that the Applicant has learned and implemented to address these factors, aside from speaking to family or friends.
The Minister further acknowledged that the Applicant has undertaken a range of educational and rehabilitative course but noted that no certificates of completion have been provided and that the Applicant has not undertaken any courses targeting domestic violence, despite his most recent offending. The Minister also acknowledged that the Applicant will have the support of his family and friends, however, noted that these family members and friends have limited knowledge of the Applicant’s offending and that such support was available when the Applicant offended.
The Applicant provided certificates for various educational and vocational course undertaken by him while in prison and immigration detention. They included:
·Australian Red Cross resuscitation and basic emergency life support[23]
·SafeWork NSW National WHS General Construction Induction Training[24]
·Australian Red Cross Community Based Health and First Aid Certificates[25]
[23] R1/144.
[24] R1/145.
[25] R1/146-50.
The Applicant also attained a Certificate II in Construction and completed the National WHS General Construction Induction training in October 2019.[26]
[26] Applicant’s undated statement R1/167.
In his statements and in his evidence at the hearing, the Applicant spoke of his realisation that he can ask for help from his friends and family when he is feeling overwhelmed.

The anger management courses that he has undertaken in prison have, according to the Applicant, taught him the importance of stopping and thinking before reacting. As noted at [41] above, I asked the Applicant what he thought had caused him to offend. I then asked him why he thinks that he would not offend like that again. His answer was that he had grown and was now much better able to deal with his emotions.
The Applicant was taken to the comment by Ms Hare in her psychological report dated 27 July 2018[27] that the Applicant “presented as unwilling/unable to seek emotional support from his support network” and that he “tends to bottle things up”.[28] Asked by counsel how that would change given his claim that he will rely on support from family and friends if he were allowed to stay, the Applicant’s evidence was that, as a result of the counselling that he had had in prison and in detention and the time that he has had to consider his situation, he now understands and accepts the need to open up and seek support. He is no longer embarrassed about seeking help and, if released into the community, he will not be afraid to seek counselling if he finds that he is struggling to cope. His evidence was:[29]
COUNSEL: Do you think distraction-based techniques rather than dealing with your emotions and feelings is the better way to resolve issues that you may have?
APPLICANT: No, to be honest. Like I said, I’ve learnt quite a bit coming from my time though jail and detention. You know, mental health is a big thing in a lot of men. Like myself, afraid to come and seek for help, but I believe if it’s there, I’m going to seek for the help that I need now then rather than before. Just using the sport to distract myself
[27] R1/125-37.
[28] R1/129.
[29] Transcript at 22.
The Applicant’s answers in cross-examination displayed an understanding of the particular issues and factors that caused the Applicant to offend as he did. As the sentencing judge noted, the offending was not premeditated and was out of character. As the Minister correctly conceded, the offending was “situation specific”, an observation made by Ms Hare in her report.[30] The Applicant, who on the evidence, is a loving and caring father, with no record of violence, drug or alcohol abuse or any of the other usual pre-cursers to this sort of violence, found himself unable to cope with the situation in which he found himself on that night and reacted in a highly inappropriate, violent manner. I find that the Applicant appreciates that his actions were totally unacceptable and accepts the gravity of what he did. He now understands the consequences that have flowed from the conduct and which would flow if he were to repeat that conduct. He has, in my assessment, been genuine in his efforts to equip himself with the means of avoiding a repeat of such conduct. This is so notwithstanding that he has not gone down the path suggested by Ms Hare at para 40 of her report[31] to obtain a referral to a psychologist to develop his emotional coping skills.
[30] R1/135.
[31] R1/135.
I am also reassured in this consideration by the statements and the evidence given at the hearing by those who support the Applicant. Quite uniquely in my experience, the two people who gave the strongest support to the Applicant, not only to the Applicant staying in Australia but also support for him as a person, were the two victims of his offending.

The evidence of the Applicant’s former partner, the mother of his children, Ms Stanley (now Ms Tome) was that her relationship with the Applicant is “wonderful” and that they had “overcome what happened in the past”. They have now “built up” their relationship and that:[32]
There’s a lot more communication between us, and I’m able to express my concerns in terms of the boys not having him available and his trying his very best to do the right thing to get out and be a dad again.
[32] Transcript at 36.
In relation to what caused the Applicant to act as he did on the night of 27-8 May 2017, Ms Tome’s evidence was:
DEPUTY PRESIDENT: And in relation to the incident which occurred in 2017, had Frank behaved in a manner like that before?
MS TOME: No, never ever. No, it was just – he was definitely emotionally driven because I no longer wanted to be in the relationship anymore due to my own feelings. It had nothing to do with him or how he’s physically able to be a father. He has never shown any type of violence. He’s always been that person that’s able to – like oh my God, and everyone that I – like knows about this, they can’t even believe it happened or he did it. And I’m basing it purely on him being so emotional – like emotionally driven, and he just didn’t want to lose his family and anything like that. And yes, it’s – it’s very very out of character for him.
Ms Tome’s above evidence is supported by the various statements provided by other family members, friends and work colleagues of the Applicant. All speak of him as being hard-working, honest and a caring father and his behaviour on the night in question as being out of character.
I also accept that the Applicant will receive significant support from his family and from Ms Tome and Ms Tome’s now husband who was the other victim of the Applicant’s behaviour on the night in question. A further stabilising influence on the Applicant is his work record and good prospects for future employment. The Applicant is a qualified painter and decorator. Letters indicating that the Applicant would be able to secure employment were provided by the Applicant’s brother, a technical services officer with Thermit Australia Ltd, by whom the Applicant had been employed previously,[33] and by Mr Fuller of JF Painting and Decorating Pty Ltd who described the Applicant as “one of [their] most trusted, senior supervisors/foreman on site”.[34] Similar sentiments were expressed by Ms Aitoa of Toacon Pty Ltd, another former employer of the Applicant.[35]
[33] R1/156.
[34] R1/157.
[35] R1/158.
Possibly the biggest protective factor against the Applicant reoffending is his strong desire to remain directly involved in the raising of his two boys with Ms Tome, an involvement wholeheartedly supported by Ms Tome and Mr Tome.
The Pre-Release Report dated 22 April 2020 handed up at the hearing, had a number of concerns about the Applicant’s insight into his offending and his apparent lack of plans after release. Having heard the Applicant’s and others’ evidence at the hearing, I do not hold those reservations. On my assessment the Applicant does have insight into his offending and an understanding of what caused it. The report did record that the Applicant’s behaviour while in prison had been incident free, with one possible exception at the time of the Applicant’s transfer. Somewhat ironically, the report made two recommendations for additional conditions for the Applicant’s parole, one of which was a condition of non-association with victims. As it has turned out, the two victims, now married to each other and looking after the Applicant’s two boys, are enthusiastic supporters of the Applicant and the Applicant being involved in his children’s and their lives.
I assess the Applicant’s risk of offending as he has in the past as extremely low.
While the harm that would be caused should the Applicant engage in the conduct that he has in the past is serious, I assess the risk of the Applicant engaging in that conduct as extremely low and, accordingly, while this consideration weighs against the revocation of the cancellation of the visa, only minor weight should be given to it.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
Paragraph 8.2 of Direction 99 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 noncitizen, the following factors must be considered where relevant:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non- citizen engage in further acts of family violence.
Paragraph 4(1) of Direction 99 relevantly defines family violence as follows:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a) an assault; or
b) a sexual assault or other sexually abusive behaviour; or
c) stalking; or
d) repeated derogatory taunts; or
e) intentionally damaging or destroying property;
...
(Original emphasis)
Member of a person’s family is defined in para 4(1) of Direction 99 as follows:
member of person’s family, for the purpose of the definition of the definition of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person.
(Original emphasis)
The Minister’s SFIC points out that the act or acts of family violence on the night in question were committed in front of the Applicant and Ms Tome’s children and two other children of Ms Tome. The Minister does accept that the relevant offending occurred in a single night and is therefore not frequent. The Minister also accepted that the Applicant has accepted responsibility for the offending and the impact it has had on those whom he assaulted and witnesses of the assaults. The Minister contended, however, that the Applicant has not engaged in any psychological intervention or participated in rehabilitation courses which target domestic violence.
The assault occasioning actual bodily harm, to which the Applicant pleaded guilty, was obviously an act of family violence. While of much lesser seriousness, the damage to the door in Ms Tome’s home described by the sentencing judge (see [37] above), would also come within subparagraph (e) of the definition of family violence. Further, the behaviour of the Applicant generally on that night would likely be “threatening or other behaviour [which] causes a family member to be fearful” thus coming within the general words of the definition of family violence on para 4(1) of Direction 99 (see [65] above).
While any act of family violence is serious, in the present case the acts constituting the family violence arose out of a single, isolated incident. Prior to that night and the Applicant’s out of character behaviour on that night, the Applicant had not engaged in any acts of family violence or, as far as his record indicates, any violence whatsoever.
As noted above, I find that the Applicant does have an insight into his offending behaviour including his actions constituting family violence. This was an isolated incident which was out of character. It is highly unlikely that the Applicant will repeat the conduct constituting family violence. While this consideration must weigh against the revocation of the cancellation of the Applicant’s visa, in the present circumstances only minor weight should be given to this consideration.
Third primary consideration: The strength nature and duration of ties to Australia (para 8.3)
Paragraph 8.3 of Direction 99 provides:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) The length of time the non-citizen has resided in the Australian community, noting that:
(i)Considerable weight should be given to the fact that a non- citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
(ii) more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii) less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
By his SFIC, the Minister accepted that the Applicant's family members, including his two nieces, seven nephews, four siblings and two sisters-in-law, will be impacted by a decision not to revoke the cancellation decision. The Minister also accepted that the Applicant has ties to Australia through his two sons, aged nine and seven.
Further, the Minister accepted that the Applicant, for a significant period of his time in Australia, did not offend and positively contributed to the community by way of his employment. However, the Minister noted that the Applicant did not spend his formative years in Australia and so 'considerable weight' should not be afforded to his period of residence referring to para 8.3(4)(a)(i).
As the Minister noted in his SFIC, the Applicant has extensive family in Australia. From the statements provided by his immediate family members, I accept that the impact of a decision not to revoke the cancellation of the Applicant’s visa on the Applicant’s immediate family members would be significant. The impact on the Applicant’s two sons would be the most significant. They provided statements[36] attesting to their closeness to their father as did the statement and the oral evidence of their mother, Ms Tome.
[36] A3 and A4.
Ms Tome’s evidence at the hearing was that it would be in the two boys’ best interests for their father to again be involved in their lives and that if he were returned to New Zealand they would not be able to relocate to New Zealand to reunite with their father. Her evidence was that she and her husband, Mr Tome, now looked after seven children in total, including the Applicant’s two children, and that it would not be feasible to uproot all of the children from Australia where they have established themselves.

Based on the number and content of the letters of support provided by friends, former work colleagues and employers, it is also clear that the Applicant has social links with the community outside the direct members of his family. The authors of these letters clearly hold the Applicant in high regard as a hard-working, honest man and a good and loving father. Undoubtedly these members of the Australian community would be at least emotionally impacted by a decision that resulted in the Applicant being sent back to New Zealand.
I also consider the strong wish of Ms Tome and Mr Tome that the Applicant be allowed to stay in Australia as relevant to this consideration.
As the Minister rightly noted, while the Applicant arrived in Australia after his formative years, the Applicant has been in Australia for over 13 years and has contributed to the Australian community through his regular employment. Overall, the consideration of the Applicant’s links to the Australian community, primarily because of the impact on his immediate family of an adverse decision, in particular the impact on his two minor children, weighs in favour of revocation of the cancellation of the decision to cancel the Applicant’s visa. Moderate weight should be given to this consideration.
Fourth Primary Consideration: Best interests of minor children in Australia affected by the decision (para 8.4)
Paragraph 8.4 of Direction 99 provides:
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3) 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.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant has two sons, aged nine and seven. The Applicant also identifies five nephews and nieces[37] who are now under 18 years of age. In his statement dated 17 July 2023,[38] the Applicant acknowledged that his actions have resulted in his children’s lives being thrown “into disarray”. He said that he was struggling at the time that he committed the offences because he was not living with and seeing his children. He says that he has now addressed that issue.
[37] R1/114-5.
[38] A1.
In that statement he speaks of the closeness of his relationship with his two sons and his gratitude to their mother, Ms Tome for her support in allowing him to maintain communications with the children. This was done primarily through regular phone and video contact and face-to-face visits while he was in prison. While the COVID-19 pandemic prevented the face-to-face contact continuing, throughout his period in immigration detention he has maintained regular phone and video contact and online gaming with the boys. The Applicant said that this “became our daily ritual, creating a fun and engaging way to stay connected and bridge the physical distance between us”. Ms Tome’s evidence at the hearing as to the communications that the Applicant has had with his children was:[39]
COUNSEL: How often do your children get to speak to Frank?
MS TOME: As much as they can, if not every day. Over the weekends they could be – they could be talking for hours, playing games, playing Fortnite or whatever video game that they play. They’re either playing the game and they’re Face Timing at the moment or they will FaceTime after football games and tell Frank how they’ve been. We send them videos, photos, everything. So it’s definite – weekly, if not every day.
[39] Transcript at 39.
The Applicant’s evidence was that in August 2017 he and Ms Tome entered into “consent orders”[40] for visitation and access to the two boys which allowed the Applicant to pick up the boys to take them to family events and fortnightly visitations. He said in his statement that this “became my routine during the 16 months I spent on bail”.
[40] R1/141.
The most compelling evidence of the Applicant’s close relationship with his children and the role that he is likely to play in their lives, came from the children’s mother and her now husband, the two direct victims of the Applicant’s offending. Ms Tome’s evidence at the hearing was:[41]
DEPUTY PRESIDENT:         Could you tell us why you want Mr Fetelika to stay in   Australia?
MS TOME:   For his son’s sake, and my son. They’ve had – like   they’ve not seen their father for a very long time, and    prior to the incident that this happened, Frank was a   good man. I think it was really driven based on his   emotions and it just didn’t work out unfortunately, but   their son’s – like our son’s definitely need their father   involved within their life. It’s quite sad sometimes that   if they want to go and have – like go out with their dad   or anything like that and they see their friends doing it,   they unfortunately don’t get to have that same    experience. And when was I was with Frank in our   past relationship he was a great dad. He was always   there for the boys, swimming lessons, soccer,   anything like that. He was very heavily involved. And   I would love the opportunity for my boys to have their   father back in their life.
DEPUTY PRESIDENT:         And how is your relationship with Frank now?
MS TOME:   It’s wonderful. Having – even though it’s quite difficult   have a co-parenting relationship via phone and video    calls, it’s great now being able to overcome what   happened in the past. And continue to build up our   relationship over the last couple of years has been a   lot better. There’s a lot more communication between   us, and I’m able to express my concerns in terms of   the boys not having him available and his trying his   very best to do the right thing to get out and be a dad   again. And I talk to Frank quite often and we have a    discussion and it’s based around the boy’s footy,   schooling, and how they are, and things like that.   Birthdays, Christmas, he’s always calling them and   talking to them.
[41] Transcript at 36.
In cross-examination Ms Tome’s evidence was:[42]
COUNSEL: And can you talk about what agreement you’ve come to with Frank in relation to the care of your children if he’s visa cancellation was revoked and he was to return to the community?
MS TOME: He would definitely return into the boys’ life 100 per cent. Like they speak to him all the time over – on their tablets and face timing and everything like that. He would definitely be heavily involved. The kids would be able to go and be reunited with his family because they’ve not had a really good relationship since Frank’s been away. So that would open the door up so the boys to be able to see their family, go to birthday parties, go to family functions with Frank, and he’s able to take them. And they can go and see their cousins again, and their unties and uncles, whereas it’s been very limited since Frank’s been away. And we can see if we’re at shopping centre and we pass by, I want them to comfortably go up comfortably go up to them and say hello and do that. And that would be with Frank because Frank would then rebuild that foundation of family that they – the boys need, and Frank would heavily be involved with that. There would be – we could do co-parenting where one week, and they could be at his house so that he would be able to do drop offs and pickups for them. Football training, soccer, school, everything like that. He would be involved.
[42] Transcript at 38.
Mr Tome’s evidence at the hearing was as follows:[43]
DEPUTY PRESIDENT:         …Could you just tell us in your own words why you   would want Mr Fetelika to stay in Australia, why you    would want his visa to be reinstated?
MR TOME:   Man, it’d be great for the boys to have him back. Like,   ever since the whole incident’s happened, we’ve, like,    spoken on and off. Yes, and – yes, like, these boys   really, really miss him. He did mess up that time, but I   was one of the main – the main people in it and, like,   I really hope that you guys can, like, get him go…Like,   he did mess up, but it’d be pretty sad for these two   lovely kids to not have their father either.
…
COUNSEL:   And how do you feel if Frank’s visa - if the cancellation   was revoked and he got his visa back, that he’d, you    know, be part of yours and your family’s life?
MR TOME:   Oh, I’d be very happy. I would be very happy, these   two boys would be happier as well. Like, it would be    nice to go - to go - because they’ve got another half of   their family that they really don’t know, that I wish that   is that they can, you know what I mean? Like, they’d   like to have their Samoan side, and I wish that they   could be part of it, you know? Yes. Yes. And I wish   that they can see - because right now it’s just their   mother’s side, and I’m here for them too, but, like,   that’s their dad, you know what I mean? And it would   be amazing to have him every other weekend and   come and grab them and take them around and do -   man, they love [him]. You know what I mean? Like, I   see - I can hear it in their voice when they talk to him   over the phone and all of that, yes. Yes, it would be -   it would be great if you guys gave [the visa] back to   him.
[43] Transcript at 41-42.
The Minister’s SFIC referred to a comment in a letter of support provided by Hoana Brunt[44] that the Applicant had said that he “enjoyed the pace of living in Perth and had no desire to return to Sydney” as suggesting that the Applicant has already decided to live separately from his children. I do not accept that. It was overwhelmingly clear for the Applicant’s evidence and the evidence of Ms Tome and Mr Tome that the Applicant’s main goal and driver for wanting to remain in Australia is to be an integral part of his children’s lives.
[44] R1/172.
In relation to the factors identified in para 8.4(4) of Direction 99 relevant in this matter, I find as follows in relation to the Applicant’s two children:
(a)Paragraph 8.4(4)(a) – the evidence establishes that the Applicant had a close relationship with his two children up to shortly before his offending in May 2017 and has since then maintained as close a relationship as possible in the circumstances. The relationship is obviously a parental one and, while there have been periods of separation due to the Applicant’s incarceration and detention, he has throughout maintained regular and meaningful contact with the children.
(b)Paragraph 8.4(4)(b) – I am satisfied that the Applicant will play a positive parental role in the children’s lives, particularly in reconnecting with their cousins and relatives on his side of the family.
(c)Paragraph 8.4(4)(c) – It is the case that the one or more of the children in the house at the time witnessed the offending, however, the evidence is not clear as to whether either or both of the Applicant’s sons witnessed the violence. There is, in any event, no evidence that the Applicant’s offending, apart from it resulting in his imprisonment and immigration detention, has had a negative impact on his two children.
(d)Paragraph 8.4(4)(d) – The evidence of Ms Tome, Mr Tome and other members of the Applicant’s family who gave statements or letters, was that the boys have been affected by the Applicant’s absence and would continue to be so affected if the Applicant were to continue to be separated from them.
(e)Paragraph 8.4(4)(e) – The children’s mother, Ms Tome, is obviously fulfilling a parenting role as it would seem is Mr Tome as the boy’s stepfather. I do note however, that Ms Tome and Mr Tome presently care for seven children which would, inevitably, be a strain.
(f)Paragraph 8.4(4)(f) – The views of both of the boys are known, they have provided letters (A3 and A4) making clear that they want to be with their father.
In relation to other minor children, Ms Tome has two daughters, however, it was not clear what their ages are and they were not identified by the Applicant in his Personal Circumstances Form as “other minor children” in the Applicant’s life.[45] One of Ms Tome’s daughters, Shayla Stanley provided a witness statement,[46] however, she did not identify her age.
[45] R1/114.
[46] A5.
While statements were provided by members of the Applicant’s family, they, relevant to this consideration, referred only to the Applicant’s relationship with his two sons, not to his relationship with his nephews and nieces.
I find that the best interests of the Applicant’s two minor boys would be served by the Applicant being allowed to remain in Australia and that, taking into account the considerations identified in para 8.4(4) of Direction 99, this consideration weighs heavily in favour of the cancellation of the Applicant’s visa being revoked.
Fifth primary consideration: Expectations of the Australian community (para 8.5)
Paragraph 8.5 of Direction 99 relevantly provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
...
(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;
...
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
The Minister contended[47] that this consideration weighs heavily against revocation because the Applicant has committed offences involving violence and family violence against women which raise serious character concerns citing paras 8.5(2)(a) and 8.5(2)(c) of Direction 99.
[47] Minister’s SFIC para 59.
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 in para 8.5 of Direction 99, without independently assessing the community’s expectations in the particular case. The principles set out in para 5.2 of Direction 99, as set out in [24] above, are also relevant to this consideration.
In FYBR v Minister for Home Affairs,[48] the Full Court of the Federal Court of Australia considered the operation of the corresponding provisions in Ministerial Direction No 65 (Direction 65), a predecessor to Direction 90 and Direction 99: see [22] above. The relevant provisions of Direction 99 contain generally similar wording to the corresponding provisions in Direction 65. Some provisions, in particular those dealing with the expectations of the Australian community (para 8.5(1)) were expanded by Direction 90 and subsequently incorporated into Direction 99.
[48] [2019] FCAFC 185; (2019) 272 FCR 454.
In Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[49] I summarised the effect of the Full Court’s judgment in FYBR, as follows:
The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing “an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs at [77]-[78].
[49] [2020] AATA 3953 at [156].
Justice Stewart in FYBR found at [89]-[91]:
It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.
(Emphasis omitted.)

In FYBR Justice Charlesworth observed at [75] and [79]:
Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
...
...The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
(Emphasis omitted.)
That “narrow view” found by Perry J at first instance in FYBR v Minister for Home Affairs[50] approved by the Full Court in FYBR, is reflected in the amendments to the Ministerial Direction which resulted in the additions in para 8.4(1) of Direction 90 subsequently caried over into para 8.5(1) of Direction 99. Due to the application of the “norm”, as it is now referred to in para 8.5(1), and the deeming operation of the corresponding Direction as found by the Full Court in FYBR, this primary consideration weighs against the revocation of the cancellation of the person’s visa.
[50] [2019] FCA 500.
The operation of this provision was recently considered by the Full Court in Minister for Immigration, Citizenship and Multicultural Affairs v HSRN.[51] While the Full Court in HSRN was considering Direction 90, the wording of the corresponding provisions in Direction 99 is the same. Relevantly, the Full Court found at [40] and [44]:
It is to be observed that s 499(2A) of the Act, as mentioned, provides that a person or body “must” comply with a direction given under s 499(1) – reference is expressly made to that requirement in para 5.1(4) of Direction No. 90. Also, the Direction provides that the decision-maker “must”, amongst other things, consider the expectations of the Australian Government as expressed in the Direction (para 5.2(4), 5.2(5) and 6 read with 8.4(4)), and that expression of the expectations applies as a “norm” (para 8.4(1)). In that context, “should” in para 8.4(4) is indicative of a requirement that must be followed; it is mandatory. That is because it would be inconsistent to read, for example, para 6 as being mandatory because of its use of the word “must”, with the result that the relevant consideration must be taken into account, but reading para 8.4(4) as merely offering guidance thereby permitting the decision-maker to arrive at its own view or assessment of what the expectations of the Australian community are. It is to be noted that one of the meanings of “should” is to convey duty or obligation rather than merely guidance: Oxford English Dictionary online version, “shall” (meaning no. 18.a). Reading “should” as indicating only guidance would also be inconsistent with what was held in FYBR, and the acceptance by the Court in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [6] that a failure to comply with the relevant Direction’s express requirements as to the conditions to be brought into account and the manner in which those considerations were to be weighed in deciding whether to revoke a visa cancellation would be jurisdictional.
...
Leaving aside whether the Tribunal can permissibly have independent regard to community expectations as assessed by it, which must be considered at least doubtful given the Direction’s express provisions with regard to that subject which can be expected to cover the field, the submission fails on the facts. That is because the Tribunal did not take account of its own assessment of community expectations “outside the prism of para 8.4(4)”. On the contrary, it made its own assessment of community expectations expressly within the context of its consideration of para 8.4. That is a clear error.
[51] [2023] FCAFC 68.
The application of the “norm” in para 8.5(1) of Direction 99 means that this primary consideration weighs against revocation of the cancellation of the Applicant’s visa. I must, however, determine the weight that should be given to this consideration. Some guidance in this regard is provided by para 8.5(2) of Direction 99 (see [91] above) which provides that the Australian community expects that the Australian Government can, and should, refuse entry to non-citizens if they raise serious character concerns through conduct, in Australia or elsewhere, of the kind listed is sub-paras 8.5(2)(a)–(f) of Direction 99. The Applicant’s acts of family violence come within the category of conduct described in para 8.5(2)(a).
The particular circumstances of the Applicant, the isolated nature of the family violence, the lack of other offending generally and the low likelihood of the Applicant reoffending do not warrant this consideration being given anything more than minor weight.
OTHER CONSIDERATIONS
Paragraph 9 of Direction 99 sets out the “Other considerations” to be taken into account as follows:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) Legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
Legal consequences of decision under section 501 or 501CA (para 9.1)
None of the considerations raised in para 9.1 arises in this case. The Applicant made no submissions in relation to this consideration and the Minister contended[52] that this consideration should be attributed neutral weight. I agree.
[52] Minister’s SFIC para 60.
Extent of impediments if removed (para 9.2)
Paragraph 9.2 of Direction 99 provides:
(1) Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
The Minister contended[53] that the Applicant will be able to establish himself and maintain basic living standard. He is 35 years old and there is no evidence to indicate he has any health issues[54] (para 9.2(1)(a)). The Minister further contended that the Applicant spent his formative years in New Zealand and will not face substantial language or cultural barriers (para 9.2(1)(b)).
[53] Minister’s SFIC para 62.
[54] R1/123.
The Minister acknowledged that the Applicant will be without family support if he is deported to New Zealand, however, he will have access to the same level of medical and economic support as is generally available to other citizens of New Zealand (para 9.2(1)(c)).
The Minister contended that the Applicant will not face significant impediments if removed and that this consideration should be given limited weight in favour of revocation.
I agree with the Minister’s assessment. The Applicant does not suffer from any relevant health, language or cultural impediments, he will have access to the same social, medical and economic support that other citizens of New Zealand enjoy and I find that he would be able to establish and maintain basic living standards. I accept that the Applicant will face a period of adjustment and emotional hardship caused by his being separated from his family, in particular his two sons. While this consideration weighs in favour of revocation of the cancellation of the Applicant’s visa, I agree with the Minister’s assessment that only limited weight can be given to it. I assess the appropriate weight to be given to this consideration to be minor .
Impact on victims (para 9.3)
Paragraph 9.3 of Direction 99 provides:
(1) Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The Minister’s SFIC referred to PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[55] and Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[56] both of which consider the circumstance where a victim, usually in a capacity other than as a victim, is supportive of their assailant staying in Australia. In that regard, I also note the relevance of CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2).[57]
[55] [2021] FCA 1235.
[56] [2020] FCA 646.
[57] [2020] FCA 1842 at [10] and [11].
As held in the above cases, it is appropriate to have regard to the impact of the decision under s 501 on the victims’, in this case Mr and Mrs Tome, under this consideration even where, as provided by Direction 99, such impact has been taken into account under another consideration. This is one of the very unusual cases where the victims of an applicant’s offending support the revocation of the cancellation of the applicant’s visa. As Perram J observed in Bale, where family members are also the victim of the applicant's crimes, the mandatory considerations relating to victims and ties to the Australian community have the potential to overlap.
The Minster accepted that, in light of the observations of Perram J in Bale, “some weight” could be given to the victims’ views under this consideration. Mindful that I have taken the views of the victims (albeit in a different capacity) into account under the consideration of the Applicant’s ties to Australia (see [77] above), I give this consideration, impact on victims, moderate weight.
Insofar as a consideration broader than the impact on victims is required by para 9.3(1), the possible impact of the Applicant being permitted to stay (i.e. a decision to revoke the cancellation) has been dealt with under the first primary consideration, the protection of the Australian community. The impact of the Applicant’s removal (i.e. a decision not to revoke) is also considered in the primary consideration of the strength, nature and duration of the Applicant’s ties to the Australian community under para 8.3 of Direction 99 and in considering the best interests of minor children under para 8.4. Insofar as the impact on those members of the Australian community is to be considered, I do so under those considerations.
Impact on Australian business interests (para 9.4)
Neither party made a submission on this consideration. I find that it is not relevant in this case.
THE WEIGHING EXERCISE
Direction 99 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account (see [26] above).
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under earlier Ministerial Directions issued under s 499 of the Act (see [22] above), the same considerations apply to the exercise required by Direction 99 which is materially in the same terms to those earlier Ministerial Directions. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[58] and the Full Court judgment in Minister for Home Affairs v HSKJ.[59]
[58] [2018] FCA 594
[59] [2018] FCAFC 217; [2018] FCAFC 217; 266 FCR 591.
Colvin J’s judgment in Suleiman was considered by Wigney J in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[60] At [21], Wigney J cited [23] of Colvin J’s judgment which was as follows:
The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 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.
(Emphasis omitted.)
[60] [2021] FCA 775.
Wigney J then observed at [22]:
It is the last sentence of this paragraph of Suleiman which has given rise to the issue in this case. That issue will be discussed in more detail later. It suffices at this point to note that, with the greatest respect to Colvin J, this analysis of paragraph 8 of the relevant direction tends to overcomplicate or over intellectualise the issue. More significantly, it may lead decision-makers into error. Paragraph 8 of Direction no. 79 is expressed in simple terms. Relevantly, decision-makers must take into account the primary and other considerations that are relevant to the individual case and, when it comes to weighing up the relevant considerations, have regard to three relevant principles: first, both primary and other considerations may weigh in favour of, or against, whether or not to revoke a cancellation of a visa; second, primary conditions should generally be given greater weight than other considerations; and third, one or more primary considerations may outweigh other considerations. It is difficult to see why any further elaboration of those simple principles or propositions is necessary or warranted.
(Emphasis omitted.)
I adopt the approach directed by the above cases.
I find that the first primary consideration, the protection of the Australian community, weighs against the revocation of the cancellation of the visa, but that only minor weight should be given to it (see [63] above).
I find that the second primary consideration, family violence committed by the Applicant, weighs against the revocation of the cancellation of the Applicant’s visa, but that only minor weight should be given to this consideration (see [70] above).
The third primary consideration, the strength, nature and duration of the Applicant’s ties to Australia, weighs in favour of revocation of the cancellation of the decision to cancel the Applicant’s visa. Moderate weight should be given to it (see [78] above).
The fourth primary consideration, the best interests of minor children in Australia affected by the decision, weighs heavily in favour of revocation of the decision to cancel the Applicant’s visa (see [90] above).
I find that the fifth primary consideration, the expectations of the Australian community, weighs against the revocation of the decision to cancel the Applicant’s visa, but that only minor weight should be given to it (see [101] above).
In relation to the “other considerations” identified in Direction 99, I find that the consideration of the legal consequences of the decision is not relevant in the present case and neutral weight should be given to it. I find that the consideration of the extent of impediments if removed weighs in favour of revoking the cancellation of the Applicant’s visa but that only minor weight should be given to it. The consideration of impact on victims weighs, somewhat unusually, in favour of revocation of the cancellation of the Applicant’s visa and I find that moderate weight should be given to it. The final “other consideration”, impact on Australian business is not relevant in this case.
I am mindful that para 7(2) of Direction 99 states that primary considerations should generally be given greater weight than the other considerations (see [26] above). Nothing has been presented which would indicate that that general principle should not apply in the present case. Having weighed the considerations in favour of revoking the decision to cancel that Applicant’s visa and those against revoking the decision to cancel the Applicant’s visa, I find that the considerations in favour of revoking the decision to cancel the Applicant’s visa, in particular the third and fourth primary considerations, outweigh those weighing against the revocation of the cancellation of the visa. Accordingly, I find that there is another reason why the original decision should be revoked and that the discretion to revoke the cancellation of the Applicant’s visa should be exercised.
DECISION
The decision of the delegate of the Minister dated 26 May 2023 not to revoke the cancellation of the Applicant’s Special Category (Class TY) (Subclass 444) visa is set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.

I certify that the preceding 127 (one hundred and twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

............[Sgd]...........................................................
Associate
Dated: 18 August 2023

Date of hearing: 7 August 2023

Solicitors for the Applicant: Self-represented

Solicitors for the Respondent: Ms S Frankel, Minter Ellison

Date of conviction	State	Offence	Result
04/10/2018	NSW	Assault occasioning actual bodily harm-T2 Agg B&E & commit serious indictable offence-people there-SI Take/detain in company w/i to get advantage occasion abh-SI	Imprisonment (aggregate): 3 years and 6 months commencing 04/10/2018 concluding 03/04/2022 Non parole period: 1 year and 9 months commencing 04/10/2018 Concluding 03/07/2020
08/01/2018	NSW	Drive motor vehicle during disqualification period - 1st off	Bond: 12 months
10/08/2017	NSW	Drive, licence suspended under s 66 Fines Act - 1st off	Fine: $300 Disqualification - driver: 3 months
30/04/2012	NSW	Never licensed person drive vehicle on road-1st offence	Fine: $100 Costs - court: $81

Date of hearing:	7 August 2023
Solicitors for the Applicant:	Self-represented
Solicitors for the Respondent:	Ms S Frankel, Minter Ellison