Heinze and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] ARTA 281

Heinze and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] ARTA 281 (6 November 2024)
Applicant:Nico Heinze
Respondent: Minister for Immigration, Citizenship and Multicultural Affairs
Tribunal Number: 2024/6048

Tribunal:General Member Cipolla
Place:Sydney
Date:6 November 2024
Date of written reasons: 6 November 2024

Decision:The Tribunal affirms the decision under review.

............... [Sgnd]..........................
General Member Cipolla
Catchwords
MIGRATION – cancellation of Applicant’s Resident Return (Class BB) (subclass 155) visa – serious offending – family violence – decision affirmed
Legislation
Migration Act 1958 (Cth) ss 500(1)(ba), 501(2), 501(6)(a), 501(7)(c), 501CA(4), 501CA(4)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Smith v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 652
Secondary Materials
Direction No. 110, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA paras 5.2(2), 7(2), 8.1.1(1), 8.1.1(1)(a)-(i), 8.1.1(1)(a)(ii), 8.1.1(a)(iii), 8.1.1(1)(b)(i), 8.1.2(1)-(2), 8.2(1), 8.2(3), 8.2(3)(a)-(d), 8.3(2), 8.3(2)(a)-(b), 8.4(1)-(3), 8.4(4)(a)-(h), 8.5(1)-(4), 9(1)
Statement of Reasons
BACKGROUND

Mr Nico Heinze (the Applicant) was born in Germany. The Applicant is 34 years old, and he has lived in Australia since 2012. The Applicant prior to his incarceration was working as a roofer and roof plumber and has worked in the building industry in Australia, establishing his own business SRC Professionals. At one point in time his business was employing 10 people. The evidence suggests that the business was impacted by both COVID 19 and the Applicant’s incarceration, and over time it has acquired substantial debt. The business has been in a holding pattern since the Applicant’s incarceration.
During the time that the Applicant has been in Australia he has engaged in a number of relationships, one of which was of 10 years duration with M, and they had two children a boy L and a girl A. That relationship ceased in October 2022. Prior to the cessation of that relationship the Applicant commenced a relationship with C which ended in June 2023.
The evidence indicates that the Applicant did not have any criminal antecedents in either Germany or in Australia until 2023.
THE APPLICANT’S CRIMINAL OFFENDING
On 15 March 2023, the Applicant contacted his ex-partner M by phone, the mother of his two children whilst she was at Sydney Airport about to depart on an international trip. The phone call was around visitation rights to their children. The contact that ensued between the Applicant and M became more escalated and heated. It ended up with the Applicant making a death threat to M stating “shut the fuck up, I’m talking” and “I’m going to put a fucking bullet in your head.” As a consequence of the threat M reported the incident and the associated threat to the police, as she feared for her personal safety.
With respect to the Applicant’s offending against M, the police facts sheet indicates the following. On 15 March 2023 M was at Sydney Airport international departures terminal on her way to an overseas vacation. M received a telephone call from the Applicant. The Applicant accused M of not allowing him to see his children. M was entering the customs hall at Sydney airport and stated that she would contact the Applicant when she cleared customs. The police facts sheet indicates that between 8:39am and 9:01am the Applicant attempted to call M a total of 16 times and when she failed to pick up his calls, the Applicant proceeded to text M multiple times. When the Applicant finally made contact with M, he began shouting at M over the phone, which included “shut the fuck up, I’m talking” and “I’m going to put a fucking bullet in your head.” Upon hearing this M terminated the phone call, she feared for her safety, and she contacted the police. During the time that M was in contact with the police the Applicant attempted to call her multiple times. M attended Burwood police station on 29 April 2023 and was granted a provisional apprehended violence order (AVO) listing her as a person in need of protection and the Applicant as the defendant.
On 13 October 2023 the Applicant pleaded guilty to and was convicted of an offence in relation to M, being use carriage service to menace/harass/offend.
As a consequence of this offending, the Applicant was made the subject of an indefinite apprehended violence order and was also made the subject of a Community Correction Order (CCO) for a period of 18 months imposed by the Local Court commencing on 13 October 2023 and expiring on 12 April 2025. A CCO is an alternative sentencing option that a court can choose to impose instead of a term of imprisonment. It is a community-based order that requires a period of “good behaviour” from the offender as well as submitting to other relevant conditions. The conditions of the CCO were that the Applicant was not to commit any offence whilst the subject of the CCO, that he must appear before the court if called upon to do so at any time during the term of the CCO, and that he was subject to the oversight and supervision of the Community Corrections Officer at Bankstown Community Corrections District office for the duration of the order.
After the cessation of his relationship with M, the Applicant commenced a new relationship with C, someone he met as an escort and someone who the Applicant was in a relationship towards the end of his relationship with M. The Applicant claims that C’s drug use and associated mental health issues did not become apparent to him until a few months into the relationship. The Applicant claims that C, due to her drug use, ended up in a drug induced psychosis and was scheduled under the NSW Mental Health Act and held in the Campbelltown Hospital Mental Health unit for 20 days.
With respect to the Applicant’s offending perpetrated against C, the evidence before the Tribunal indicates as follows. The Applicant and C had been in a relationship for around 10 months and had been residing together in a New South Wales town for around 4 months. The police facts sheet indicates that C had made a decision to terminate the relationship with the Applicant which caused friction between them and the Applicant obstructing C’s attempts to leave their shared rental property. The police facts sheet notes that:
“On the evening of 9 June 2023, the victim had planned to leave the [redacted] address and fly to Melbourne where her family reside. The victim had booked flights and was trying to pack her things however the accused refused to let her do so. When the victim tried to leave the location, the accused sat in the victim’s car refusing to get out. The accused promised the victim he would take her to the Airport the following morning if she spent one more night with him. Feeling she had little choice and believing the accused would honour his promise the victim agreed to cancelling her flight and booking one for the following morning.
About 9:30am on 10 June 2023 the victim has asked the accused to let her pack her items and drive her to the Airport. The accused refused and a further argument commenced, during this argument the victim tried to pack her clothes however the accused blocked her way by trapping her in the bedroom.
The victim began to fear what the accused would do and began to record his actions on her mobile phone, this sent the accused into a rage. The accused has lunged at the victim knocking her onto the bed with the accused landing on top of her. The accused put both hands around the victim’s throat and squeezed constricting the victim’s breathing, after a brief time the victim began to go limp and lose consciousness before the accused let go. The victim was able to stand up before she received a heavy knock to the head, it is unclear what the accused struck the victim with. The force of the blow knocked the victim to the ground with her landing heavily on her back, the accused has straddled the victim’s chest pinning her to the ground. The accused has again put both hands around the victim’s throat and squeezed, again inhibiting the victim’s ability to breathe. The victim still had the phone in her hand that had been recording, the accused moved his shin bone and placed it across the victim’s neck and put his weight on it putting significant pressure on the victim’s throat. With his hands now free he has used one hand to hold both of the victim’s wrists in place while he used the other hand to take the victim’s phone proceeding to delete the videos she has recorded. The victim stated that she believed she was about to die and that everything went black again losing consciousness.
It is unclear how long the accused kept the pressure on the victim’s neck however the victim states that he maintained pressure even after he finished with the phone. The victim had gone in and out of consciousness multiple times during the incident.
The accused has gotten off the victim and left the room the victim regained her senses but remained in the bedroom. The accused returned to the room a short time later and removed a folding knife from his pocket. The accused has extended the blade before holding it to the victim’s throat telling her that if she called any of her friends or the police to the house, he would kill her.”
The police facts sheet indicates that the Applicant left the premises leaving C alone. C then called a friend and explained what had occurred and her friend flew to Sydney from Melbourne arriving in the New South Wales town the same evening. The same evening C attended the police station to report the offending and provided police with a video recorded statement and allowed the police to take several photographs of her injuries.
The police facts sheet indicates that on 13 June 2023 the Applicant presented himself to Balmain police station after receiving telephone contact from the police.
On 21 September 2023, the Applicant was convicted in the Local Court of New South Wales with assault occasioning actual bodily harm, stalk/intimidate fear of physical harm (domestic)-T2 and intentionally choke person with recklessness (domestic violence)-T1. The Applicant was sentenced to an aggregate term of 18 months imprisonment.
The seriousness of the offending and the impact on the victim was captured in the sentencing comments of the Magistrate (see G9 pages 56-57). The Magistrate determined that the offending had crossed the threshold for consideration of a community corrections order and that “that the only sentence that can be imposed for an offence of this kind is a fulltime imprisonment.” The Magistrate sentenced the Applicant to an aggregate sentence of 18 months imprisonment commencing on 13 June 2023 (when the Applicant’s bail was refused) and expiring on 12 December 2024, with a non-parole period of 6 months commencing 13 June 2023 and ending 12 December 2023.
On 28 September 2023 the Applicant’s Class BB Subclass 155 Five Year Resident Return visa was mandatorily cancelled under s.501(3A) of the Migration Act (the Act) due to the fact that he had acquired a substantial criminal record and had been sentenced to a term of imprisonment for 12 months or more at the time his visa was cancelled. On 20 October 2023, the Applicant requested the cancellation decision be revoked under s.501CA of the Migration Act.
The Applicant sought a review of the Local Court sentencing decision in the District Court of New South Wales. On 19 March 2024, the District Court varied the sentence of imprisonment to a term of 11 months. Following this reduction in sentence (having regard to the 12 month threshold necessary for mandatory cancellation s.501(7)(c)), the Applicant was advised by the Minister that he failed the character test under subparagraph 501(6)(d)(i) namely, a risk that person would engage in criminal conduct, and was further advised that any revocation request would be considered in light of this.
THE DELEGATE’S CANCELLATION DECISION
On 15 August 2024, a delegate of the Respondent decided not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s.501CA(4) of the Migration Act. The delegate stated that in considering the risk of further offending by the Applicant that a significant consideration was his offending conduct with a conclusion based on this that there was the potential of further offending and a risk of harm to members of the Australian community.
The delegate had regard to the factors that contributed to the offending and noted the Applicant’s submission that his offending was out of character for him and was attributable to a number of significant life stressors that emerged during the COVID 19 pandemic. This included the pandemic impacting his work leading to significant financial pressures, accruing a significant tax bill and relationship issues with his former partner, the mother of his two children.
The Applicant also submitted that his behaviour was impacted when he entered into a new relationship with C whom he had met in her work as an escort. The Applicant claimed that he was unaware of the fact that C had a drug abuse problem and was also suffering with mental health issues.
The delegate noted that prior to court proceedings in 2023 that the Applicant had engaged with a psychologist Mr Awit, who noted that the Applicant did not have any drug or alcohol issues, and that his offending appeared to be totally out of character as the Applicant had no prior criminal history. Mr Awit noted that the Applicant’s decision making at the time of his offending was impaired and impulsive due to his domestic and financial circumstances that existed.
The delegate noted that the Applicant had expressed regret and remorse for his offending behaviour. The delegate noted that the Applicant’s behaviour in prison had been satisfactory and that he had been respectful to prison officers and fellow inmates. The delegate noted that the Applicant had engaged in a number of treatment and self-help programs and a number of these addressed domestic violence and anger management. The delegate also noted that the Applicant had worked as a barista in immigration detention and that he was well regarded by staff and other detainees.
The delegate expressed concern about the fact that the Applicant’s domestic violence offending against his first partner and the mother of his children was not an isolated incident of domestic violence and that over time there was an escalation in the gravity of offending. The delegate notes that the domestic violence offending by the Applicant of his second partner established a significant escalation in the offending, which due to the choking component could have led to serious injury or even death. The delegate determined that the Applicant’s offending posed an unacceptable risk to his former partners and indeed to other women with whom the Applicant may become involved with in the future.
The delegate noted that the Applicant had a close relationship with his two children and that they have a close bond and have travelled as a family unit within Australia and overseas.
The delegate acknowledged that the Applicant had employed a number of people in his business and that the cancellation of his visa would impact both full time and part time employment opportunities going forward.
The delegate ultimately concluded that due to the serious and violent nature of the Applicant’s offending, also with respect to the expectations of the Australian community, the risk of re-offending and the commission of family violence offences, that these factors weighed strongly with respect to the cancellation of the Applicant’s visa.
At review the Applicant has provided documentary evidence with respect to his attendance and participation in the SMART recovery program, the Salvation Army positive lifestyle program, attendance at the Men’s Referral Service program offering counselling and support for men willing to engage in conversation around family violence and evidence of completion in a course pertaining to domestic violence awareness. The Applicant also provided evidence of completion in a course on parenting after separation.
The Applicant also provided a number of character references, including a statement from his parents in Germany, and these references and statements of support have all been duly considered.
The Applicant lodged an application for review of the Ministerial decision with the AAT on 20 August 2024. The Tribunal has jurisdiction to review that decision pursuant to s.500(1)(ba) of the Act.
As noted, the evidence before the Tribunal indicates that the Applicant has a criminal record as the result of domestic violence offending and that he was initially sentenced by the Local Court in New South Wales to an 18-month term of imprisonment, hence attracting mandatory cancellation provisions with respect to his Subclass 155 resident Return visa. The evidence before the Tribunal indicates, as discussed, that this was reduced by the District Court of NSW to 11 months which is below the term of imprisonment that attracts mandatory cancellation. As a consequence of the reduction in sentence, the Applicant was advised that his visa would be cancelled under subparagraph 501(6)(d)(i) namely, a risk that the person would engage in criminal conduct. Accordingly, the central issue in this matter is whether there is another reason why the cancellation should not be revoked.
APPLICANT’S STATEMENT OF FACTS, ISSUES AND CONTENTONS
The Tribunal received a statement of facts, issues and contentions (SFIC) from the Applicant’s representative, Mr Northam, dated 27 September 2024. The Tribunal has duly considered the SFIC.
The submission notes that the Applicant accepts his record of criminal convictions and concedes that his offending was serious and that it constituted family violence and that he deeply regrets his actions that constituted the offending.
The submission notes that the Applicant has a deep commitment to his two Australian citizen children and to the ongoing reformation of his life. The submission notes that during the period of the Applicant’s incarceration he has engaged in extensive courses to assist him going forward and that he seeks to remain in Australia as a contributing member of the Australian community and with respect to being a parent to his two Australian children.
The submission notes that the Applicant was initially sentenced to a period of imprisonment of 12 months or more, however, the initial sentence was reduced on appeal which resulted in the Applicant no longer having a “substantial criminal record” as per s.501(7)© of the Act.
With respect to the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct the submission notes the following. The submission refers to the Oxford dictionary definition of “risk” defined as “the possibility of something bad happening at sometime in the future.” Accordingly, the submission notes that the focus of the Tribunal should be with respect to the future risk to the Australian community with respect to the Applicant committing further offences or engaging in other serious conduct.
The submission notes that in assessing this consideration with respect to an assessment of the Applicant’s character in terms of the proposed revocation of his visa, is a predictive function rather than a punitive function. The submission notes that as a consequence of the Applicant being sentenced to a term of imprisonment, that he has paid his debt to society, and it is not appropriate or indeed lawful for the Tribunal to act in a way that attempts to impose a further punishment upon the Applicant.
The submission notes the seriousness of the Applicant’s offending behaviour which he describes as his “historical actions”. The submission notes that the critical and relevant considerations with respect to consideration of future risk requires an assessment of relevant considerations that existed at the time of the offending which may be substantially different to those that currently exist.

The submission notes that the Applicant has engaged in significant self-improvement and self-examination through attending rehabilitation and education courses. These include the SMART recovery program, domestic violence awareness courses, anger management courses, circuit breaker courses, conflict resolution techniques, effective communication skills, breaking the cycle of conflict, parenting after separation, personal communication skills along with positive lifestyle programs. The submission notes that the Applicant’s engagement in these courses “clearly demonstrates the commitment of the Applicant to learn from his mistakes and educate himself to empower him to successfully handle with the kind of stressful situations that had previously caused him to engage in negative behaviour.”
The submission notes the delegate impugned the Applicant engaging in a number of courses whilst incarcerated after his offending. The submission notes that the Applicant’s engagement with these courses was with the objective of self-improvement and how to better manage himself and his relationship with others.
Reference is made to the 18 March 2024 report from Mr Chafic Awit, a psychologist. Mr Awit in his report notes that the Applicant had no criminal antecedents until March 2023. The report notes that the Applicant was struggling with anxiety and depression symptoms he had experienced since the COVID 19 pandemic. The psychologist notes that this was attributable to a number of factors. The Applicant was under huge work pressure during this period. The relationship with the mother of his two children began to disintegrate at this time creating instability. The Applicant faced a large ATO debt, along with a significant cash flow issue in his business. The Applicant moved in with another woman after the breakdown of his marital relationship who had previously seen as an escort. The Applicant reported at the time of being assessed that he was under significant pressure and stress and that he was working very long hours.
Mr Awit opines that the Applicant’s decision-making was impaired during the period of his offending claiming that “he was struggling financially as well as making a number of poor decisions. The conditions he is diagnosed with are well-documented (in psychological literature) to correlate with impaired decision-making as they impacted the critical reasoning processes.”
The submission notes that the Applicant has taken responsibility for his offending and has not tried to minimise, deflect, or obscure the seriousness of what he had engaged in.
The submission notes that prior to the offending in 2023 the Applicant had no criminal record in Australia or any other country. The submission notes that the Applicant’s offending was limited to a period of a few months during which time the Applicant was under great financial and personal pressure.
The submission notes that the Applicant engaged in family violence and therefore the consideration with respect to family violence committed by the non-citizen comes into play. The submission notes that the Applicant had a successful partner relationship with the mother of her two children for a number of years, prior to his offending, and once again reiterates that the offending occurred within a context of high stress. The submission notes that there was no pattern of offending or evidence that the Applicant was a habitual offender. The Applicant’s offending came about during the short period because he was unsuccessful in dealing with the significant pressures acting upon him at the time and “acted out against others.”
With respect to the Applicant’s strength, nature and duration of ties to Australia the submission notes the following. The Applicant has a former partner and two Australian citizen children in Australia that would benefit substantially from the Applicant’s ongoing role in their lives moving forward. The submission notes that the Applicant’s children are now aged eight and six and will benefit from the Applicant playing an important father figure role in their lives. The submission notes that it was the Applicant’s two former partners that were the subject of apprehended violence orders and that the Applicant’s two children were never mentioned as needing any protection from the Applicant.
The submission notes that the Applicant has resided in Australia on a full-time basis since 2012 and has family roots in Australia since 2016. The submission makes reference to the many positive character references that have been provided with respect to the review application before the Tribunal attesting to the Applicant’s character.
The submission notes that the removal of the Applicant from the jurisdiction would create an extreme hardship upon the Applicant’s children.
The submission notes that with respect to the best interests of minor children in Australia affected by the decision, that the Applicant's 6 and 8 year old children, would substantially benefit from an ongoing relationship with their father if he was able to remain in Australia. The submission notes that consideration should be given to the positive influence that the Applicant could have upon his children in the future decades of their lives. Reference is made to the Convention on the Rights of the Child and the submission states that this factor weighs very heavily in favour of reversing the visa cancellation.
With respect to expectations of the Australian community, the submission notes that there is a low risk of future offending, and this is evidenced by the fact that the Applicant’s offending occurred within a very short period of time and that there were no antecedents prior to the offending. The submission notes that the Tribunal must focus on making information-based decisions with proper regard to the factors present in the case before it. The submission notes that the government in drafting Direction 110 compromised the fairness and reasonable operation of the Direction by “introducing extreme, almost draconian ‘no tolerance’ positions with regard to people being expelled from Australia and ripped away from their Australian families and children for offences that simply do not pass the ‘pub test’ or any other reasonable test with regard to being aligned with the values of mainstream Australians.”
The submission posits that Direction 110 is extreme, rigid, and intolerant and can potentially lead to unfair and cruel outcomes that are not representative of Australian community beliefs. The submission notes that Direction 110 has little tolerance for people who make mistakes. The submission notes that little weight should be given to this consideration.
With respect to other considerations the submission notes that a negative decision of the Tribunal will lead to the Applicant being expelled from Australia with little or no opportunity to return and be permanently separated from his former wife and his two children.
The submission notes that the Applicant owns a substantial business that would face financial ruin and closure in the event that the Applicant was removed from Australia. The submission notes that with respect to the impact of the Applicant’s prospective removal from Australia that his clients, sub-contractors and vendors who had engaged with his business would be directly and negatively affected by the forced closure of his business in the event of his removal.
In conclusion the Applicant’s representative contends that the Applicant is a person whose life took a bad turn after finding himself in challenging circumstances. The Applicant as a consequence of these circumstances acted out against his partners in a way that was completely out of character for him given the fact that there was no previous history of offending.
The submission notes that the Applicant has fully acknowledged his offending and expressed deep remorse for his offending, and has fully paid his debt to society through a term of imprisonment with documentary evidence confirming him to be a model prisoner and detainee.
The submission notes that given the forward-looking aspects of Direction 110 the question that the Tribunal should ask itself is “what would the Applicant do now, if he was released?”
The Applicant contends that he has an opportunity to resume his old life predominantly being an important part of his children’s lives and re-establishing his business.
The submission contends that the Applicant has experienced firsthand the deprivation of liberty through incarceration and immigration detention and the associated cost of his offending behaviour. The Applicant’s representative believes that this factor represents a strong motivating force for the Applicant not to reoffend and that the correct and preferable decision would be to set aside the decision under review and substitute it with the decision to revoke the cancellation of the Applicant’s visa.
RESPONDENT’S STATEMENT OF FACTS ISSUES AND CONTENTIONS
The Tribunal received a Statement of Facts, Issues and Contentions (SFIC) from the Respondent dated 10 October 2024 which has been duly considered. The SFIC notes the following.
The SFIC “contends that the Administrative Appeals Tribunal (Tribunal) should affirm the decision of the delegate due to the seriousness of the Applicant’s offending and the possibility of future harm to the Australian community should the Applicant offend again in a similar way or engage in other serious conduct.”
The SFIC makes reference to the Applicant’s background. It notes that the Applicant is a citizen of Germany and was born on 18 February 1990. He first arrived in Australia on 14 September 2012 and has been resident in Australia since the time. The Applicant was granted a subclass 155 Resident Return visa on 24 March 2023.
The submission makes reference to the Applicant’s criminal history noting that “on 21 September 2023 the Applicant was convicted of intentionally choke etc person with recklessness 9DV)-T1,Stalk/intimidate intent fear physical harm etc-T2, and was sentenced to imprisonment for 18 months.”
What followed was the cancellation of the Applicant’s visa on 28 September 2023 under section 501(3A) of the Act.
On 13 October 2023, the Applicant was convicted of use carriage service to menace/harass/offend and received an 18-month community correction order.
On 20 October 2023 the Applicant requested the cancellation decision be revoked under section 501CA of the Act.
The submission notes that on 19 March 2024 the District Court reduced the Applicant’s 18-month prison sentence to 11 months. On 15 August 2024, a delegate of the Minister found that the power under section 501CA(4) to revoke the cancellation under subsection 501(3A) was not enlivened. The Applicant proceeded with a merits review application to the Tribunal on the 20 August 2024.
The SFIC notes that the key issue for the Tribunal to determine is whether the Applicant passes the character test and whether there is another reason why the cancellation decision should be revoked for the purposes of subparagraph 501ca(4)(B)(ii), having regard to the primary and other considerations contained in Part 2 of Direction 110.
The submission notes that the Applicant’s 18-month prison sentence was reduced by the District Court to 11 months on appeal, and that the Applicant no longer has a substantial criminal record as defined by s.501(7)(c) of the Act, notwithstanding this fact the Minister contends that the Applicant does not pass the character test as defined in section 501(6)(c) on the basis that having regard to either or both of the following, namely the Applicant’s past and present criminal conduct, and the Applicant’s past and present general conduct the ‘person’ is not a good character. The Minister’s representative contends “that it would be open to the Tribunal to find that the Applicant does not pass the character test as defined in section 501(6)(c) of the Act.”
The Minister contends that the Applicant is not of good character based on his present and past criminal conduct. The submission notes that the Applicant has been convicted of multiple family violence offences which include violent crimes. The submission acknowledges that the Applicant has a short criminal history, however, the Applicant engaged in repeated domestic violence offences against two victims within a short period of time and the evidence indicates the severity of the offences escalated over time.
Reference is made to the escalation in the offending. The submission notes that the Applicant had been sentenced to a term of imprisonment with respect to the second and more severe domestic violence offences reflective of the objective seriousness of the offence. The Minister’s contention is that there is a trend of increasing seriousness to the Applicant’s offending and that the cumulative effect of the Applicant’s offending has resulted to significant use of police and court resources.
The submission notes the Applicant has submitted that underlying factors contributed to his criminal offending, namely the breakdown of his relationship, along with financial pressures. The evidence is indicative of the fact that the Applicant has a significant debt to the ATO. The Applicant is contemplating a declaration of bankruptcy. The Applicant has also claimed that his ex-partner, the mother of his two children is committed to co-parenting with him. The submission notes that the Applicant has not seen his children since April 2023.
The submission takes issue with the Applicant’s claims that he has insight into his offending, and that he pleaded guilty at the first available opportunity. The submission notes that “this is not reflected in the sentencing remarks which note the Applicant entered a late plea to the charges on amended facts nor in the fact sheets which reflect the Applicant blamed his ex-partner for the offending and denied choking her and taking her phone.”
The submission makes reference to sentencing remarks where the Applicant appears to shift the blame for his most recent offending to his ex-partner. Reference is made to the comments of the sentencing Magistrate who noted “he gave a version to police which was somewhat ad hominem attack upon her character and gave an explanation which is now entirely inconsistent with the facts that he now accepts to place. It’s the most egregious form of violence in the family home and as I said, one which would have left the complainant traumatised and no doubt the memory of this dreadful experience will last with her for the rest of her life I would expect.” The submission makes reference to sentencing assessment reports which indicate that the Applicant attributed his offending to the victim and blame the victim of his offending on the negative events that were happening in his life, with the Applicant claiming that his second partner had mental health and drug related issues.
The respondent on behalf of the Minister notes that the Applicant has completed multiple courses whilst in custody and in immigration detention including anger management courses, domestic violence awareness courses, conflict resolution techniques, and anger management techniques. The Minister also notes that the Applicant has provided multiple character references which attest to his good character. However, the Minister “contends that the statements from the Applicant and friends are insufficient to satisfy the Tribunal that they should outweigh the Applicant’s lack of enduring moral quality.”
With respect to another reason why the cancellation decision should be revoked the Minister addresses the relevant factors in Direction 110.
With respect to protection of the Australian community the Minister contends that the Applicant’s conduct should be viewed very seriously. The Minister contends that the Tribunal should consider the likelihood and consequences of further offending. The Minister contends that further offending would expose the Australian community to significant physical, psychological, and financial harm.
With respect to the likelihood of the Applicant reoffending the Minister contends that there is a real risk of this happening in the future, making reference to the most recent risk assessment of the Applicant as being a medium/low risk of re-offending. Once again, the submission notes that the Applicant has continued to blame his second partner for his offending behaviour.
The submission notes that the Applicant is the subject of an indefinite apprehended violence order which protects his ex-partner, M, the mother of his two children. The submission notes that in New South Wales a court can determine that an apprehended violence order remain in force for an ‘indefinite period’ if the court has concerns about a significant and ongoing risk of death or serious physical or psychological harm to the protected person. The Minister contends that in issuing an indefinite apprehended violence order the Burwood Local Court determined that the Applicant posed a significant and ongoing risk to his ex-partner.
The respondent submits on behalf of the Minister that the Tribunal should give heavy weight to this consideration with respect to not revoking the visa cancellation.
With respect to family violence the submission notes that family violence means violent or threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. The Minister’s contention is that the cumulative effect of the Applicant’s repeated offending is serious. Despite the fact that the Applicant has engaged with domestic violence and anger management courses and claims to accept responsibility for his offending behaviour, the Minister contends that these assertions are undermined by the fact that the Applicant stated that his offending was one-off, that he has never committed family violence prior to the offending behaviour, and that the Applicant attempted to shift blame onto his victims. The Minister contends that the Tribunal should give this consideration heavy weight against the revocation of the cancellation decision.
With respect to the strength, nature and duration of ties to Australia the submission notes that Direction 110 requires the Tribunal to have regard to any impact of the decision on the non-citizen’s immediate family members in Australia who are Australian citizens, permanent residents, or who have the right to remain in Australia indefinitely. The submission notes that the Applicant arrived in Australia from Germany in 2012 when he was 22 years old. The Minister accepts that the Applicant appears to have positively contributed to Australia through his work as a roofer and support of various charities. The submission also notes that the Applicant has provided a range of positive character assessments, the majority of whom have met the Applicant through employment. The Minister contends that while the Applicant has some links to the Australian community, the weight provided to this consideration should not outweigh the weight provided to other countervailing considerations.
With respect to the best interests of minor children the submission notes that the Applicant has two minor children A, born in 2018, a daughter, and L born in June 2016, a son, to the Applicant’s first partner M. The Applicant describes having a loving relationship with his children and believes that they will suffer deleterious mental health effects if his visa cancellation is not revoked. The submission notes that the Applicant has submitted many photographs of him spending time with his children and that the evidence indicates that he was actively involved in his children’s lives up until April 2023 but has not had contact with them since that time. The Minister notes evidence from family lawyers with whom the Applicant has engaged with respect to seeking to have greater access to and communication with his children going forward.
With respect to the consideration of expectations of the Australian community the submission notes that the Australian community expects non-citizens to obey and be respectful of Australian law whilst in Australia. The submission notes that where a non-citizen has engaged in serious conduct in breach of this expectation then the Australian community expects that the government would not allow such a non-citizen to enter or remain in Australia. The Minister contends this primary consideration weighs heavily against revocation of the Applicant’s visa.

The submission notes that the Applicant has not made any claims which give rise to international non-refoulement obligations and that any hardship that the Applicant may face on account of being removed from Australia should be considered under “impediments if removed.”
With respect to other considerations the submission notes that impediments to the Applicant’s removal, factor in the Applicant’s age and health, language or cultural barriers and social, medical and economic support available to them in that country in this case Germany. The Minister contends that the Applicant will be able to establish himself and maintain basic living standards in Germany noting that he is young and healthy, that there are no language or cultural barriers, and that despite the fact that the Applicant has a combination anxiety disorder and major depressive disorder there is no evidence to indicate that the Applicant will not have access to appropriate mental health services available to citizens within Germany. The submission contends that the Applicant has a mother, father and brother in Germany who would be able to provide him with some level of support.
With respect to the impact on Australian business interests the submission notes that the Applicant has owned his own business in Australia and has employed a number of subcontractors. The Minister contends that the non-revocation of the Applicant’s visa would not result in the delivery of a major project or important service in Australia being significantly compromised and hence the Minister contends that this consideration should be given limited weight, if any.
In conclusion the Minister contends that the factors that weigh against revocation of the Applicant’s visa outweigh the factors in favour of revocation.
CONSULTANT PSYCHOLOGIST’S REPORT FROM MR TIM WATSON-MUNRO DATED 10 OCTOBER 2024
Mr Watson-Munro was engaged by the Applicant to provide a psychological assessment and report and the report dated 10 October 2024 has been duly considered by the Tribunal.
The Applicant is described in the report as being somewhat an anxious and depressed man with a matter currently before the Tribunal with respect to the cancellation of his subclass 155 visa.
The report makes reference to the Applicant’s background noting that he is a national of Germany and that his criminal history primarily relates to two difficult relationships with women that resulted in family violence. Mr Watson-Munro notes that “it is apparent from my history taking and indeed from the extensive documentation which I have been provided, Mr Heinze was under considerable psychological duress during the period of his offending.”
The report notes no history of illicit substance use or alcohol abuse. The report makes reference to the fact that the Applicant had completed a number of programs in immigration detention and that he is currently receiving treatment from a psychologist at the Villawood detention centre on a fortnightly basis. The report notes that the Applicant’s offending behaviour referable to the charges and subsequent convictions encompassed a short period of time in terms of the Applicant’s life in Australia from 2012 to date.
The report notes that the Applicant has been substantially shaken by his exposure to both the criminal justice system, imprisonment, and immigration detention. The Applicant advised that his two children were conceived with his former partner in difficult circumstances arising from engagement with an IVF program. As a consequence of both children being conceived through IVF, the report notes that the bond of love that the Applicant has for his children had been strengthened by this process.
Mr Watson-Munro notes that with respect to the Applicant, there appears to be a number of protective factors in place which he describes as the Applicant’s “expressions of remorse, an absence of illicit drug use or alcohol abuse, his consistent employment history and his desire to have ongoing treatment in the community, which will reduce the risk of reoffending in this case. I believe that with ongoing therapy and maintenance of these protective factors, this risk is now trending towards low.”
With respect to the Applicant’s social history Mr Watson-Munro notes the Applicant was born in Germany in February 1990, that the Applicant has a twin brother and an older brother resident in Germany, that his parents are aged 64 and 61 years old and remain married and have a positive relationship with family members.
The Applicant completed his education in Germany in 2006 at which time he commenced an apprenticeship as a carpenter. The Applicant has been in continual employment since that time. The Applicant remained working as a carpenter until about 2011 at which time he transitioned into roofing construction. The Applicant travelled to Australia in 2012 as the holder of a working holiday visa which later transition to a partner visa on the basis of his former relationship with the mother of his two children.
The report notes that the Applicant and his former partner M share two children, a son aged 8 and a daughter aged 6. The report notes that the Applicant “expressed a deep concern and love for his children and attendant to this, escalating anxiety regarding psychological harm that they may experience should they be deprived of his involvement in their lives as a consequence of being deported. He reported that he has no contact with his children. Both children are citizens of Australia.”
In terms of the Applicant’s work history in Australia he initially worked in the aged care sector but returned to his trade and established a business in metal roofing and cladding. He commenced his own business in 2014 and the business grew over time employing seven workers and subcontractors. The business was adversely impacted by the global pandemic and more recently his incarceration and detention. The Applicant expressed to Mr Watson-Munro that if he is permitted to remain in Australia, he is keen to return to self-employment in his roofing trade.
The report notes that the domestic violence and verbal threats with respect to his former partner, the mother of his children “occurred against a backdrop of escalating stressors and a fear that she may leave the country with their children.” The Applicant described his behaviour as emotional, irrational and ventilated. The Applicant acknowledged that his behaviour was threatening and intimidating and claims that he had no intention of harming his partner and the Applicant expressed remorse for his offending behaviour in this respect. The Applicant also stated that he was working six days a week in his business, that his business was severely impacted by poor weather over time. The Applicant also claimed that after his offending he spent some time with and his children sightseeing in Europe. The Applicant confirmed having no contact with his children since April 2023 which has caused him considerable stress.
With respect to the Applicant’s offending on 9 June 2023 with his second partner, that with respect to his offending behaviour, the Applicant stated to Mr Watson-Munro that “prison, detention and immigration detention and the prospect of deportation has had a salutary impact upon him and in relation to this he expressed a firm commitment to not break the law again.” The Applicant described himself as being “100% remorseful.”
With respect to the Applicant’s drug, alcohol and psychological history Mr Watson-Munro noted that despite the mother of his children alleging that the Applicant has used drugs that he strenuously denied this. The Applicant reported that his second partner was a drug user. The Applicant denied that alcohol consumption had been a problem for him, and that alcohol did not appear to be relevant to the Applicant’s offending conduct. The Applicant described escalating depression and anxiety in the lead up to the breakdown of his relationship as he was working long hours in a job in Kangaroo Valley.
Mr Watson-Munro made reference to all the courses that the Applicant has completed during his custodial sentence and immigration detention and that he has completed the SMART program to assist in his communication skills and to develop insight into domestic violence and anger management. It is also noted in the report that the Applicant has been given trust by authorities of the Villawood Detention Centre running their coffee shop between 8:30am and midday each day.
Mr Watson-Munro noted that the Applicant “expressed considerable despondency regarding the possibility of not seeing his children, adding that it would be difficult for them to visit him in Germany because of financial considerations, as well as cultural and language nuances. He reported that it would be more difficult to support his children if he was in Germany in terms of lower income expectations there.”
Mr Watson-Munro notes that the Applicant acknowledges suffering a range of symptoms referable to depression including pessimism around deportation, cognitive intrusion impacting decision-making, diminished self-esteem, a feeling as though he is being punished, and that depression and anxiety relate to his concerns with respect to his children and having an ongoing role in their lives.
Mr Watson-Munro makes reference to a reference from Mr Adam Lintmeijer dated 14 June 2024 attesting to the Applicant’s diligent work ethic.
Mr Watson-Munro makes reference to a letter from the Applicant to the Department of Home Affairs dated 7 July 2024 in which the Applicant maintains that he is actively committed to amending his negative past, wishes to continue with continuous help in this respect, and emphasises a desire to be a law-abiding resident if permitted to remain in Australia.
Mr Watson-Munro addresses the delegate’s decision. Mr Watson-Munro notes that a previous psychological assessment of the Applicant by Mr Chafic Awit opines that the Applicant had no drug or alcohol related abuse issues which was consistent with Mr Watson-Munro’s history taking. Reference was also made to an assessment by psychologist Mr Timothy Wardeiner who noted that the Applicant had tendencies “for impulsivity, unhelpful thinking styles of magnification, minimisation, justification and catastrophising.” Mr Watson-Munro note that based on his observations the Applicant’s high level of distress is attributable to him not seeing his children and him taking responsibility with respect to the impact upon his children of his conduct over the past few years.
With respect to his overall opinion Mr Watson-Munro noted that the Applicant presented as cooperative throughout the assessment but appeared to be “somewhat anxious and depressed.”
Mr Watson-Munro noted that the Applicant expressed appropriate remorse for his behaviour. Reference is made to the number of courses that the Applicant has engaged with whilst detained in respect to his offending behaviour along with the fact that he is having regular interaction with a psychologist in immigration detention. The report notes that “my discussions with Mr Heinze suggest that his attitude to his offending has changed and in this regard, he reported that he fully accepts his culpability and attended to this expressed remorse as noted.”
Once again Mr Watson-Munro makes reference to protective factors that are currently in existence with respect to the Applicant. He notes that “there are arguably now a number of protective factors which will reduce the risk of reoffending in the future. These include his expressions of remorse, his willingness to undertake treatment in the community and attendant to this, him undertaking treatment in immigration detention, an absence of illicit drug use or alcohol abuse, an absence of a prior forensic history and his expressions of remorse. He is keen to rejoin the Australian workforce with a view to moving forward with his life and eventually, subject to the imprimatur of the Family Court, gaining some access to his two children.” The report notes that the Applicant impressed Mr Watson-Munro as a genuine and well-motivated individual with him concluding that the risk of him re-offending is now trending towards low.
REVIEW HEARING
The Tribunal conducted a hearing on the 29 and 30 October 2024. The Applicant attended the hearing in person with his representative Mr Mark Northam. The Minister’s representative Ms Charlotte Saunders from Minter Ellison attended the hearing. A number of witnesses attended the hearing to give evidence in person and a number of witnesses provided evidence to the Tribunal remotely.
At the outset of the review hearing the Tribunal went into considerable detail with respect to the history of the Applicant’s Subclass 155 visa cancellation. The Tribunal outlined the process of merits review, noting that the Tribunal was an independent review body tasked with conducting merits review of the delegates decision to cancel the Applicant’s visa made on 15 August 2024. The Tribunal noted that it was tasked with determining whether there is another reason why the cancellation decision should be revoked having regard to the factors outlined in Ministerial Direction 110.
The Tribunal made reference to the documentary evidence before it. The Tribunal advised the Applicant of how the hearing would be conducted.
The Applicant’s oral evidence
Mr Northam advised the Tribunal that he would not be making an opening submission and would proceed with an examination of the Applicant. Ms Saunders advised the Tribunal that she had no opening submission to make on behalf of the Minister.
The Applicant stated his name. The Applicant advised that he had worked as a carpenter and a roof plumber and had undertaken an apprenticeship in Germany. The Applicant advised that he arrived in Australia on 14 September 2012 as the holder of a Working Holiday visa that was valid for 12 months. The Applicant advised that he decided that he wanted to stay longer in Australia and gave thought to whether he would be able to undertake work in the roofing industry. The Applicant stated that he had an initial goal of starting his own business. The Applicant advised that soon after arriving in Australia he met his former partner M.
The Applicant stated that he eventually started up his own business involved in roof plumbing/cladding and that he and his former partner M have two children, L, a son aged eight, and A, a daughter aged six.
The Applicant was asked about his first offending behaviour in March 2023. The Applicant stated that he and M had planned to visit his family in Germany and her family in Brazil. The Applicant stated that he was not involved in the purchase of travel tickets. The Applicant stated that his relationship with M was not great at that time. The Applicant stated that he was concerned about M’s travel itinerary with his children visiting Prague, Germany, Poland, the Czech Republic and Brazil. The Applicant stated that his relationship with M at this time was volatile and that he was anxious and concerned that M may not return to Australia with the children. The original plan was to travel together but because of the volatility in the relationship it collapsed, and M and the children departed alone.
The Applicant stated that he contacted M whilst she was at Sydney International Airport with the children preparing to depart the country. The Applicant stated that he said to M that “if I can’t see the kids I would put a bullet to your head.”
The Tribunal asked the Applicant about the inception of his relationship with M. The Applicant stated that he believed that they met soon after he arrived in Australia and commenced a de facto relationship in late December 2012. The Applicant stated that he and M decided that they wanted to have children, however conception was difficult and they had to engage in an IVF program and as a consequence their two children were born. The Applicant described that the relationship by late 2020 was failing. The Applicant stated the factors with respect to this was a lack of communication, him not being happy in the relationship, work pressures, either quoting roofing jobs during the Covid period and the stress of having to manage numerous jobs.
The Applicant advised that he decided to end the relationship and that he stayed with M until November 2022 and that around this time he divulged to M that he had been unfaithful and was in a new relationship with C. The Applicant advised that M did not take this news well. The Applicant advised that he moved out of the residential property that he was sharing with M and his children in a Sydney suburb. The Applicant stated that he was predominantly working at the time in Kangaroo Valley and Robertson and that he lived in this area after leaving the Sydney suburb.
The Applicant provided more detail with respect to the first offending in March 2023. The Applicant stated that he wanted to know where M was taking the children. The Applicant stated that he panicked and thought that she may take the children to Brazil are not return. The Applicant described his behaviour when contacting M at Sydney International airport as unacceptable. He described his behaviour as irrational. The Applicant stated that he should not have engaged in this behaviour. He repeated that he threatened M by stating that he would put a bullet in her head at which time she hung up on the call. The Applicant stated that M travelled with the children to Brazil and then on to Europe. The Applicant stated that M required him to sign documents to allow the children to depart from Brazil based on a Brazilian legal requirement.
The Applicant was asked about the inception of his relationship with C. The Applicant stated that he met C before he ended the relationship with M. He advised that C was an escort working in the Kangaroo Valley area and that they developed a friendship over time and got close. The Applicant advised that he was trying to help her. The Applicant described it as a rollercoaster of a relationship. He advised that she was an independent sex worker and that he initially met her as a client and that as time went on a relationship developed.
The Applicant was asked to describe the offending that occurred in June 2023. The Applicant advised that he and C had engaged on a previous occasion in a threesome with another sex worker. The Applicant stated that he was wanting to surprise C with another engagement with a sex worker. He advised that C was surprised about this and accused the Applicant of cheating on her. The Applicant stated that he did not cheat on her or lead a double life. The Applicant stated that on the day of the offending he was going to work and C was wanting to leave the relationship and travel to Melbourne.
The Applicant stated that he showed C her laptop and his phone to prove that he was not cheating on her. The Applicant stated before C decided to leave the relationship, they had just signed a lease for a rental property in a New South Wales town. The Applicant stated that C advised him that she wanted to leave the relationship for a range of reasons. The Applicant stated that an argument ensued and that C started to film the Applicant’s behaviour with her mobile phone. The Applicant stated that he was worried about being filmed because of bail conditions applicable to his earlier offending against M. The Applicant confirmed that he was on bail as a consequence of the threatening phone call to M. The Applicant stated that he pulled C onto the bed and she fell on the ground. The Applicant stated that he was worried that C would go to the police. The Applicant stated that he was worried about the consequence of her videoing the altercation. The Applicant stated that he placed his shin on her neck and deleted the video. The Applicant was asked whether he put his hands around her neck and he confirmed that he did, that he deleted the video, that C lapsed into unconsciousness when he was on top of her and that after she regained her breath she ran into the wardrobe. The Applicant stated that he told C that he would kill her if she went to the police and that he was brandishing a knife at this time holding it in her direction. The Applicant stated that he left their place of residence in the New South Wales town. The Applicant stated that he wished these things had not happened. The Applicant stated that he hoped that both M and C are okay and are not suffering. The Applicant stated that he hopes that both of them will forgive him especially M as she is the mother of his children. The Applicant stated that he wished that he had not engaged in this behaviour.

The Applicant was asked about his children. The Applicant advised that A is 6 years old and was born in 2018 and that she was a very happy child. The Applicant stated that L his first born, a son was born in 2016 and the Applicant stated that he bears an uncanny resemblance to his son. He advised that his son is very much like him. The Applicant stated that conception was difficult because of the IVF process but he and M ended up with two beautiful children and that they were a close family and did a lot of things together. The Applicant stated that he travelled with them and their children to Uluru, they would take multiple road trips throughout New South Wales.
The Applicant was asked the last time he had contact with his children and the Applicant advised that he travelled to Europe separately from M in 2023 to attend his mother’s 60^th birthday and that he surprised them at the airport in Prague. It was apparent then M was unaware of this. The Applicant stated that he spent a day in Prague with his children.
The Applicant was asked whether he received information from M about his children. The Applicant stated that there was an indefinite apprehended violence order in place with respect to M. The Applicant stated that he receives updates pertaining to his children from their school. He advised that the children reached out to him on Father’s Day. The Applicant stated that he was trying to stay within the legal guidelines of the apprehended violence order. The Applicant stated that he had attempted to engage a family lawyer to re-establish contact with his children but his ability to do so was impacted by his poor financial situation currently. The Applicant stated that he tried to get Legal Aid but the grant of aid was denied. The Applicant stated that M does not want the children to interact with the Applicant in the Villawood Detention Centre.
The Applicant’s representative noted that the Applicant as a consequence of the outcome of the Tribunal proceedings could find himself back in the community or that he may not end up back in the community and could be deported. The Applicant was asked about his priorities. The Applicant stated that he wanted legal access to his children so that he could have a meaningful relationship with them going forward. The Applicant stated that he would need to return to work to earn money to pay for family court proceedings. The Applicant stated that he could not see his children when he gets out of detention because of the apprehended violence order. The Applicant stated that his ultimate goal is to be reconnected with his children. He advised that he had lost 16 months of contact with them and has not even been able to have contact with them on their birthdays. The Applicant stated because of the apprehended violence order he cannot contact M.
The Applicant was asked about employment prospects if he is released into the community. The Applicant stated that he had a lot of contacts and that he could work as a subcontractor or take on a full-time roofing or carpentry position. The Applicant stated that he struggled with the management of his roofing business when he was in the community and the business was impacted by the global pandemic.
The Applicant stated that he had engaged with a psychologist in the Villawood Detention Centre and had engaged in a number of self-help courses whilst he had been detained. The Applicant described taking things for granted in the past and looking at things in a very black and white way. The Applicant stated that as a consequence of engaging in courses in detention that he is better at listening to others. The Applicant stated that he is more aware of his mental health. The Applicant stated that he never wants to go back to jail or to Villawood. The Applicant expressed gratitude for having access to a psychologist in detention. The Applicant also expressed gratitude for having access to courses in detention. The Applicant stated that he is committed to seeing a psychologist on a fortnightly basis. The Applicant stated that he wants to be the best version of himself. The Applicant stated that he had engaged in the SMART program in detention. The Applicant stated that he has tried to promote the issue of domestic violence in detention with respect to courses to circumvent domestic violence offending. The Applicant stated that he has worked as a barista in detention. The Applicant stated that he has assisted fellow detainees with their paperwork.
The Applicant was asked what impact his first offending had upon him in March 2023. The Applicant stated that at the beginning he was in denial and was shocked that M went to the police. The Applicant stated that he was trying to comprehend this and why she had done this. The Applicant was asked a person said to him that they would put a bullet in his head whether he would have gone to the police and he advised that he would have.
Ms Saunders cross-examined the Applicant. Ms Saunders noted that the Applicant had discussed arriving in Australia is 2012 and the cancellation of his Subclass 155 visa. The Applicant asked how he obtained permanent residence and the Applicant advised that he obtained a partner visa through M. He advised that he commenced a relationship with M at the end of 2012 but by the end of 2020 the relationship was in poor shape.
Ms Saunders stated that she understood from the material that this change in the relationship was attributable to financial stress. The Applicant confirmed that there were pressures in the business and that he and M were living an expensive lifestyle. The Applicant described getting behind in his quarterly business activity statements that he needed to provide to the ATO. The Applicant stated that he miscalculated expenses, that he purchased three cars for the business and that his expenditure was too much to absorb by the business. The Applicant advised that he accrued business supplier debts over 2020 into 2021. The Applicant stated that roofing jobs that he had in Robertson and in Kangaroo Valley were substantially impacted by rain. The Applicant stated that he had an American Express credit card debt. The Applicant stated that he owed around $200,000 to the ATO, to business suppliers, and to American Express credit cards. The Applicant advised that he had entered into a payment plan with the ATO, however this was suspended because of his imprisonment and current detention. The Applicant stated that his current debts were around $38,000 to American Express, over $120,000 to the ATO, and around $20,000 to suppliers. The Applicant stated that with respect to his car loans they have now been extinguished because he sold one motor vehicle to a former employee and one car had been repossessed by finance company. The Applicant stated that he had no other debts.
The Applicant stated that the debts and difficulties led to the relationship with M ending. The Applicant stated that there were also other issues with respect to their personal/private relationship which he detailed in his earlier evidence. The Applicant confirmed that his adulterous relationship with C contributed to the end of his relationship with M.
The Applicant stated that when he ended his relationship with M he was living in Kangaroo Valley and that he lived part of the time with C until they entered into a residential tenancy agreement for their own property in a New South Wales town. The Applicant stated that he moved out of the family home at the end of January 2023. He advised that M moved somewhere else and that he does not know where she is residing and she had not divulged this to him.
The Applicant was asked prior to separating with M whether he saw the kids on a regular basis and he advised it depended on work commitments in Robertson and Kangaroo Valley and that to tried to see the kids and would attempt to commute between the Southern Highlands and the family home in the Sydney suburb.
The Applicant confirmed that by March 2023 he moved in with C to the premises in a New South Wales town.
Ms Saunders noted that the offending against M occurred in March 2023. The Applicant was taken by Ms Saunders to pages 75-76 of the G documents. Ms Saunders noted that the police facts sheet indicated that the Applicant shouted at M “shut the fuck up, I’m talking and I’m going to put a fucking bullet in your head.”
Ms Saunders noted the Applicant’s evidence that he contacted M because M’s travel plans had changed and that she was travelling to Poland, Austria and Brazil. The Applicant stated that there was a lack of access and contact with his children before they departed and that he was panicked and was concerned about travel to Poland which he claimed was known for its criminal activities. Ms Saunders asked the Applicant whether he or M had any connections in Poland, and he advised that they did not and that his thoughts around Poland were just “irrational thoughts”.
Ms Saunders noted that M contacted the Applicant from Brazil because she needed the Applicant to sign documents to allow the children to leave Brazil and the Applicant confirmed that this was the case.
Ms Saunders noted that the Applicant surprised the children in Prague. Ms Saunders noted given the history of the Applicant threatening to kill M, whether she was surprised by the Applicant turning up unannounced at Prague airport and whether she would have been worried about this and the Applicant stated “yes most likely.”
Ms Saunders noted that when the Applicant returned from Europe to Australia that he attended a police station and was arrested. The Applicant confirmed that this was the case.
Ms Saunders noted that the first offending occurred in March 2023 and the second offending against C occurred in June 2023. Reference was made to the police facts sheet pertaining to the offending of June 2023. Reference was made to the fact sheet indicating that the Applicant attempted to strangle C, that he held a knife to her throat and attempted to strangle her a second time. Ms Saunders asked the Applicant why this offending occurred. The Applicant stated that he was trying to surprise C with a second working girl as they had previously engaged in a threesome. The Applicant stated that when he divulged this to C she accused him of cheating on her and leading a double life. The argument escalated to physical conflict and that C began filming the Applicant on her mobile phone and that he was attempting to delete the material on her phone. The Applicant stated that C was also trying to leave the relationship but that he thought that the relationship was good and was surprised that she wanted to leave. The Applicant stated that he was worried about C videoing him and stated that C was aware of his bail conditions with respect to M. Ms Saunders asked the Applicant what was being captured on film. The Applicant stated that he was shouting at C and telling her to stop filming. Ms Saunders confirmed that this offending occurred because he was trying to leave the relationship. The Applicant stated this was one of the reasons, but the other reason the offending occurred was because he was on bail, because it could lead to the potential loss of his visa, because it could cause problems with him contacting his children. The Applicant stated that he thought if he could delete the video, it would circumvent these problems and that he was not thinking properly and that he completely overreacted.
The Applicant was taken to page 62 of the G documents at the second paragraph. In the police interview the Applicant is quoted as stating “we had an argument as C is paranoid that I have a double life because she is an escort and using drugs. She tried to kick me in the nuts, so I restrained her, and we fell to the floor. I placed my knee and body weight on her chest so she would calm down and I held her arms with my hands. At no point did I put my hands around her neck. At no point did I access her phone.” Ms Saunders put to the Applicant given his earlier evidence that the statement that he made to police was incorrect and that he was trying to hide his offending. The Applicant was invited to comment. The Applicant confirmed that he had not given a truthful account to the police with respect to what happened. The Applicant stated that he was not thinking straight and that he did not own up to his offending straight away. Ms Saunders asked the Applicant when he was trying to hide his offending the Applicant stated “yes by deleting the video”, Ms Saunders added “and by lying” the Applicant stated “I guess you could say that.”
Ms Saunders noted that the Applicant pleaded guilty to these offences and the Applicant confirmed he did. The Applicant was taken to pages 92 and 93 of the G documents and reference was made to the Applicant’s statement of 15 October 2023 where he states “I am embarrassed, ashamed, and I pleaded guilty at the first opportunity.” Ms Saunders stated that this was not borne out in the evidence before the Tribunal and was reflective of the Applicant lying, the Applicant was invited to comment and responded “yes I guess.”
Ms Saunders made reference to document G 19, page 93 the fourth dot point where the Applicant claims that he has never committed family violence. Ms Saunders put to the Applicant that this suggested that he was attempting to mislead the Department with respect to the statement. The Applicant was invited to comment. The Applicant stated that he wished he owned up to his actions straight away rather than trying to cover up things. The Applicant stated that he wished he had given a more honest account.
Reference was made to the Applicant’s second offending in June 2023 against C. The Applicant stated that he was jailed for 18 months but the sentence was reduced by the District Court to 11 months. The Applicant stated that this consisted of six months in jail and five months on parole. Ms Saunders noted that the Applicant was the subject of an apprehended violence order protecting C for five years. Ms Saunders asked the Applicant whether there had been any contact with C since the time of the offending and he advised there had not.
Ms Saunders noted that at the time that the Applicant was convicted of the offending with respect to M that he was placed on an 18-month community correction order and that an indefinite apprehended violence order was put in place with respect to M. The Applicant confirmed that this was the case.
Ms Saunders made reference to G 19 page 93, eighth dot point where the Applicant states that M “is committed to co-parenting with me in Australia.” Ms Saunders suggested this component of the Applicant’s statement was misleading and was another example of the Applicant attempting to mislead the Department. Ms Saunders asked the Applicant given what transpired in March 2023 with his threat to put a bullet in M’s head what he believed the chance of co-parenting with her in the future would be. The Applicant stated that he would try to have the apprehended violence order amended to allow access to his children. The Applicant stated that M did not want the children to have any access with the Applicant in Villawood. The Applicant stated that he is committed to accessing his children again and taking the necessary legal steps to do so. The Applicant confirmed that his behaviour was the only reason that he was separated from his children currently. The Applicant stated that if he does not remain in Australia, he would not be likely to have a relationship with his children going forward. The Applicant stated that family law needs to look at both sides. The Applicant stated that he had been committed to his children and was trying his best for them and had spent time with them and tried to be the best father to them until things broke apart.
Ms Saunders asked the Applicant about the contact that he has had with his children since he had been in the Villawood Detention Centre. The Applicant stated that he had made enquiries about having FaceTime contact and other forms of contact with his children. He advised that his former partner M knew about the detention environment because of her work. The Applicant stated that he approached family lawyers to obtain advice around access to his children and that these lawyers sent correspondence to M in respect of this. The lawyers have expressed to the Applicant the constraints in facilitating access whilst he was in immigration detention. Ms Saunders noted that there did not appear to be a copy of correspondence with respect to contact with the children. The Applicant apologised for not putting including this in his submissions.
Ms Saunders noted that there were several instances of untruthful evidence provided to the Department and that this evidence was suggestive that the Applicant had not been truthful about interaction with M with respect to his children. The Applicant stated that he cannot contact his children because of the existence of an apprehended violence order protecting M which is an indefinite order.
Ms Saunders asked the Applicant whether he had paid any child support since separation. The Applicant stated that he had not paid any child support since the end of January 2023. He advised that there were no formal child support orders in place. The Applicant stated that he paid M’s rent after he left the relationship. The Applicant stated that he was further constrained by not having access to resources that would enable him to pay child support.
Reference was made to donations that the Applicant had made to charity $105 dollars to the Cure Brain Cancer Foundation and $515 to the Sydney Children’s Hospital Research Centre. Ms Saunders noted that the Applicant had been able to make donations to charities but had not been able to provide child support. The Applicant noted that these donations occurred in August 2020 to the Sydney Children’s Hospital and in June 2021 to the Cure Brain Cancer Foundation prior to the cessation of his relationship with M.
Ms Saunders noted that the Applicant had provided certificates of courses that he had completed since his detention. Ms Saunders asked the Applicant what he was trying to achieve with these courses. The Applicant stated that he accessed courses that are available to him that dealt with things like conflict resolution, being assertive in communication, knowing yourself better and not being in denial about things going on in your life. The Applicant stated that since he had been in detention that he had been able to reflect on his previous behaviour, about why he had reached out to escort services and why he did not have a conversation with M about problems in the relationship. The Applicant stated that the courses dealt with trying to be the best person that you could be, trying to improve your negotiation skills, acquiring the relevant skills to be a better person, a better father and to make a better contribution to the community.
Ms Saunders noted that the evidence provided by the Applicant suggested sexual incompatibility between the Applicant and M. The Applicant said that partially this was the reason for the breakdown of his relationship with M. The Applicant stated that in the last stages of the relationship that he felt that he was the third wheel on the wagon and that he did not love M anymore. The Applicant stated that in the last two years of his relationship he only stayed with M for the sake of the children.
The Tribunal enquired of the Applicant whether there was any suggestion by himself or M to engage in counselling with respect to their failing relationship. The Applicant stated that M suggested counselling at the time but he as a “hard headed tradie” neglected this and said that he did not have time to engage with counselling. The Applicant stated that he regretted this decision.
Ms Saunders noted that the Applicant had discussed being an advocate against domestic violence offending and had put together a flyer with respect to this that had been distributed in the detention centre. The Applicant was invited to comment on this. The Applicant stated it was not just the preparation of the poster but was listening to the conversation between inmates in prison and detainees in detention with respect to violence towards partners. The Applicant stated that he encouraged anybody that had mistreated partners to gain access to courses and counselling. The Applicant stated that he wanted to show Australia what he was capable of doing and that he does not wish to be involved in domestic violence in the future. The Applicant stated that he had the approval of Australian Border Force with respect to this initiative.

Sub-paragraph (c) of paragraph 8.2(3) of the Direction directs a decision-maker to consider any rehabilitation achieved at the time of the decision, including the extent to which the person accepts responsibility for the family violence and related conduct; the extent to which the non-citizen understands the impact of his or her behaviour on the abused and witnesses; and efforts to address factors which contributed to that conduct.
The evidence before the Tribunal indicates that the Applicant has expressed remorse for his offending and the impact that it has had upon his victims. The Applicant as noted has attended a number of courses addressing family violence, anger management and self-control since being in prison and in immigration detention.
Sub-paragraph (d) of paragraph 8.2(3) of the Direction points to an inquiry as to 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.
The evidence indicates that the Applicant committed the first act of family violence against M on 15 March 2023 and as a consequence on 13 October 2023 he was made the subject of an indefinite apprehended violence order and was also made the subject of a Community Correction Order (CCO) for a period of 18 months commencing on 13 October 2023 and expiring on 12 April 2025.
The evidence indicates that the Applicant then engaged in acts of family violence against C in June 2023 whilst on bail with respect to his offending against M and the evidence gleaned from the police facts sheets and indeed the respective judicial outcomes for both offences indicates an increase in the severity of the offending.
Considering the sub-paragraphs in their totality, they weigh heavily against the revocation of the cancellation of the Applicant’s visa.
CONCLUSION: PRIMARY CONSIDERATION 2
Primary Consideration 2 weighs heavily against the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
The Tribunal must consider any impact of its decision on the Applicant’s immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(2) of the Direction allows for the consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community.
Sub-paragraph (a) of paragraph 8.3(2) of the Direction directs a decision-maker to have regard to how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child. Less weight should be given where the non-citizen began offending soon after arriving in Australia. More weight should be given to time the non-citizen has spent positively to the Australian community.
The Applicant has lived in Australia since arriving as a 22 year old in 2012 a period of 12 years. The Applicant is now 34. The evidence before the Tribunal indicates that the Applicant has contributed positively to the Australian community through his work in the roofing and building industry. The evidence indicates that the Applicant’s business was adversely affected by a number of factors. This included the global pandemic and an inability of the applicant to manage the scope of his business as it grew in size. Unfortunately, as a consequence of these factors the applicant has accumulated significant debt to business suppliers, to the ATO and to American Express credit cards. The evidence indicates that the applicant has not shied away from his debt responsibilities prior to being detained and had entered into payment plans with respect to these debts. Since his incarceration the applicant has given consideration to bankruptcy but if released in the community would prefer to avoid that option and to re-enter into repayment plans with his debtors.
Sub-paragraph (b) of paragraph 8.3(2) of the Direction directs the decision-maker to consider the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has two Australian citizen children in Australia. The Applicant also has a number of friends and former work colleagues with whom he has developed close relationships with.
The Applicant’s friends and colleagues have provided statements in support of his application.
Having regard to the length of time the Applicant has resided in Australia, the Tribunal finds that this consideration should be given some weight in favour of the revocation of cancellation of his visa.
CONCLUSION: PRIMARY CONSIDERATION 3
Primary Consideration 3 should be given some weight in favour of the revocation of cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.4(1) of the Direction obliges a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA, is in the best interests of a child affected by the decision.
Paragraph 8.4(2) provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made.
Paragraph 8.4(3) provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
As noted, the evidence before the Tribunal indicates that the Applicant has two minor children A and L with his former partner M, who are both Australian citizens.
The Applicant has provided written evidence to the Tribunal with respect to his relationship with his first-born child, a son, L. The Applicant describes the relationship with his son as being very close since his birth. The Applicant advised that he spent a lot of time with his son at the playground, teaching him to walk, playing with Lego, teaching him soccer, and flying the Applicant’s drone along with teaching him how to ride a bike. The Applicant stated that his son was always interested in the Applicant’s tools given that he was a tradesperson. The Applicant stated that he would teach his son the alphabet in English and in German as well as counting.
The Applicant stated that his second born child A, a daughter, is what he described as a “daddy’s girl” and that he had a very tight relationship with her. The Applicant described in his statement the support that he provided to his daughter with her growth and development.
The Applicant advised that he had travelled with his children within Australia and overseas and that his children had developed a close relationship with his parents, despite the fact that they reside in Germany.
The evidence before the Tribunal indicates that the Applicant has had no contact with his children since April 2023. The Tribunal acknowledges the constraints in this respect noting the applicant is in immigration detention and noting the existence of an indefinite AVO with respect to the mother of his children M. The Tribunal notes that the Applicant has attempted to engage with family lawyers around access to his children but has been constrained by his immigration detention and his poor financial position.
Reference has been made by the Applicant’s representative to the requirements of the Convention on the Rights of the Child. The Applicant’s representative has also submitted that it is important for the Tribunal to consider the positive influence that the Applicant has had on his children to date and will have on his children in the decades to follow.
Sub-paragraph (a) of paragraph 8.4(4) points to a consideration of 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).
Sub-paragraph (b) of paragraph 8.4(4) points to a consideration of 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.
L is aged 8 and there is a lengthy period of time before he is an adult. A is aged 6 and there is also a lengthy period of time before she is an adult. The evidence indicates that given the close relationship that the Applicant has had with his children, there is strong potential for the Applicant to continue to play a positive and interactive role in his children’s lives particularly as they transition into adulthood.
The Tribunal notes that the applicant’s children are currently in the care and control of their mother and has noted the applicant has not had contact with his children since April 2023. As noted the applicant has attempted to get some family law advice around access to his children but there have been constraints around this because of his current predicament.
There is no evidence of any formalised orders with respect to the children.
Sub-paragraph (c) of paragraph 8.4(4) points to a consideration of 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.
The evidence indicates that the Applicant’s past conduct with respect to his offending has already had an adverse impact on his children by the very fact that he has been removed from the family unit since his incarceration. The evidence further indicates that M’s relationship with the Applicant going forward would be compromised given his offending behaviour towards her and this finding is heightened by the fact that there is an indefinite AVO in place with respect to M.
Sub-paragraph (d) of paragraph 8.4(4) points to a consideration of the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways.
The evidence before the Tribunal strongly indicates that the Applicant’s two children will be substantially impacted if the Applicant is removed from Australia. The ability to communicate with their father electronically is not a substitute for having their father as a physical presence in their lives.
Sub-paragraph (e) of paragraph 8.4(4) points to a consideration of whether there are other persons who already fulfil a parental role in relation to the child.
M already fulfills a parental role for L and A since the Applicant’s imprisonment and incarceration.
Sub-paragraph (f) of paragraph 8.4(4) points to a consideration of any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
The Tribunal notes that because of the age of the children and the limited contact that they have had with her father since April 2023 that their respective views have not been collated and presented to the Tribunal. However a significant amount of photographic evidence has been provided to the Tribunal indicative of the fact that the applicant played a close and proactive role in both of his children’s lives.
Sub-paragraph (g) of paragraph 8.4(4) points to a consideration of any 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.
There is no evidence that the children of the Applicant are at risk of being subject to family violence. There is no evidence of any history of violence towards the children. The evidence indicates that the act of family violence was directed at their mother and that since the act she has been the subject of an indefinite apprehended violence order. There is no evidence that the children were exposed to the Applicant’s act of family violence which was directed to their mother during a mobile phone conversation in which the Applicant made threats to M.
Sub-paragraph (h) of paragraph 8.4(4) points to a consideration of any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The evidence before the Tribunal indicates that the Applicant’s children have been impacted by the removal of their father from their lives due to his imprisonment and his immigration detention which is ongoing.
Considering all of the evidence before it under this Primary Consideration, the Tribunal is satisfied that the best interests of minor children in Australia affected by this decision weigh heavily in favour of the revocation of cancellation of the Applicant’s visa.
CONCLUSION: PRIMARY CONSIDERATION 4
Primary Consideration 4 weighs heavily in favour of the revocation of cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Applicant has breached this expectation through his criminal conduct.
Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.
Paragraph 8.5(4) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
In assessing the weight attributable to Primary Consideration 5, the Tribunal places weight on the following matters. The Applicant has committed acts of family violence against M and C. The Applicant has violently offended against C and made a significant threat of violence towards M.
The Applicant’s offending towards both M and C was unacceptable behaviour and was not within the parameters of societal norms. The threat made by the Applicant to M was a significant threat that instilled fear in the victim. The gravity of the offending is reflected by the fact that a Magistrate imposed an indefinite AVO. The offending towards C involved both threats and intimidation and escalated into dangerous levels of physical violence causing actual bodily harm with the potential for deadly consequences. These behaviours which occurred within a short period of time in 2023 would be deemed by the Australian community to be unacceptable. The evidence before the Tribunal is such that the Tribunal can be reasonably satisfied that the expectations of the Australian community as a whole weigh very heavily against the revocation of the cancellation of the Applicant’s visa.
CONCLUSION: PRIMARY CONSIDERATION 5
On balance, Primary Consideration 5 weighs very heavily against the revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. These are considered under their respective headings below.
(a) Legal consequences of the decision
There is no evidence of any non-refoulement obligations that may arise in this matter, or that it would be impracticable to remove the Applicant to Germany. Accordingly, the Tribunal does not consider this consideration to be relevant.
(b) Extent of impediments if removed
The Applicant is a relatively young man at 34 who has a sound technical skills as a roofer, and roof plumber. He has developed and grown a business whilst living in the Australian community. There is no evidence before the Tribunal indicative of the Applicant suffering with any health issues.
The Tribunal accepts the Applicant’s evidence that removal to Germany would be stressful.
The evidence before the Tribunal indicates that the Applicant would not suffer any language or cultural barriers in Germany. The Tribunal notes that the social, health and welfare systems available in Germany are of a very high standard. The Applicant spent his formative years in Germany until the age of 22.
The Tribunal is satisfied that the Applicant would experience initial challenges in re-establishing himself in Germany. However, these challenges would be mitigated by the fact that the German economy is strong, in addition to this Germany is part of the European Union. As noted the Applicant possesses strong technical skills and has an extensive work history that includes the establishment of a well-respected business in Australia and offered employment to a number of people. On balance the Tribunal finds that this consideration weighs moderately in favour of the revocation of the cancellation of the Applicant’s visa.
(c) Impact on Australian business interests
There is evidence before the Tribunal that Australian business interests may be compromised in the event that the Applicant was removed to Germany as the Applicant has excellent skills as a carpenter and a roof plumber. Mr Zazy gave evidence to the Tribunal of the difficulty in recruiting tradesmen with the skills and ability of the Applicant. The Tribunal finds that the loss of those high-level skills will on this basis have an impact on Australian business interests. Further to this the Applicant has in the past established and run a roofing business and employed a number of people in the business. Like a number of businesses the Applicant’s business was impacted by the global pandemic and issues with the global supply chain as a result of the pandemic. The Tribunal notes that the Applicant has accumulated significant debts in Australia which he hopes to be able to address and eventually extinguish if he is released into the community. The Tribunal finds that the Applicant’s removal from Australia would preclude debts from being re-paid and a potential new business from being established in the future and that this may have some moderate impact on Australian business interests.
CONCLUSION

In this case the Applicant’s visa was cancelled on 28 September 2023 under s.501(3A) on the basis that the Applicant did not pass the character test because he had a substantial criminal record within the meaning of s.501(6)(a) and on the basis of s.501(7)(c) because he was serving a term of imprisonment and had been sentenced to a term of imprisonment of 12 months of more. In this case the term of imprisonment was 18 months.
As noted, the Applicant pursued an appeal to the District Court with respect to the severity of sentence that had been imposed in the Local Court. As a consequence of the appeal, on 19 March 2024, the sentence was reduced by the District Court to 11 months.
On the basis of the appeal outcome in the District Court, the Applicant no longer had a substantial criminal record on the basis of s.501(6)(a) with reference to s.501(7)(c) that had been clearly engaged at the time of the visa cancellation.
The evidence indicates that the delegate found that the Applicant did not pass the character test under s.501(6)(d)(1) on the basis that if the Applicant were allowed to enter and remain in Australia, there is a risk the person would engage in criminal conduct in Australia.
Under s.501CA(4)(b) of the Act, there are two alternate conditions precedent to making the decision to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. The Applicant does not pass the character test.
In then considering whether there is another reason to make the decision under s.501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the totality of the evidence and those considerations referred to in the Direction. Accordingly, the Tribunal finds as follows:
(a)Primary Consideration 1 weighs very heavily against the revocation of the cancellation of the Applicant’s visa, although this consideration is not of itself determinative.
(b)Primary Consideration 2 weighs heavily against the revocation of the cancellation of the Applicant’s visa.
(c)Primary Consideration 3 weighs in favour of the revocation of cancellation of the Applicant’s visa.
(d)Primary Consideration 4 weighs heavily in favour of the revocation of cancellation of the Applicant’s visa.
(e)Primary Consideration 5 weighs very heavily against the revocation of the cancellation of the Applicant’s visa.
(f)To the extent that they are relevant, the Other Considerations weigh moderately in favour of the revocation of the cancellation of the Applicant’s visa.
Consistent with paragraph 7(2) of the Direction, the Tribunal places greater weight on Primary Consideration 1 and the protection of the Australian community than it does on the Primary Considerations 2, 3, and 4. Furthermore, the Tribunal places greater weight on the Primary Considerations than the Other Considerations.
The Tribunal is guided by the principles contained in the Direction. These include paragraph 5.2(2), where the highest priority of the Australian Government is the safety of the community. The Tribunal is reasonably satisfied that the safety of the community is best served without the Applicant’s presence within it.
Accordingly, the Tribunal is not satisfied that the cancellation of the Applicant’s visa should be revoked. The correct and preferable decision of the Tribunal is to affirm the reviewable decision.
DECSION
The Tribunal affirms the Reviewable Decision.

I certify that the preceding 400 (four hundred) paragraphs are a true copy of the reasons for the decision herein of General Member Cipolla.

............................[Sgnd]...................................
Associate

Date(s) of hearing: 29-30 October 2024

Date final submissions received: 24 October 2024

Solicitors for the Applicant: Mr M Northam, Northam Lawyers

Solicitors for the Respondent: Ms C Saunders, Minter Ellison

Date(s) of hearing:	29-30 October 2024
Date final submissions received:	24 October 2024
Solicitors for the Applicant:	Mr M Northam, Northam Lawyers
Solicitors for the Respondent:	Ms C Saunders, Minter Ellison