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

Hillard and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 4840 (4 December 2023)
Division:GENERAL DIVISION
File Number(s): 2023/6914
Re:Asa William Edward Hillard
APPLICANT

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

DECISION
Tribunal:Senior Member K Millar
Date:4 December 2023
Date of written reasons: 21 December 2023
Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that cancellation of the Applicant’s visa is revoked under s 501(CA)(4) of the Migration Act 1958 (Cth).
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Senior Member K Millar
CATCHWORDS
MIGRATION – mandatory cancellation of Subclass 444 Special Category (Temporary) (Class TY) visa under section 501(CA)(4) – where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to revoke the visa cancelation under section 501(CA)(4) should be exercised – consideration of Ministerial Direction No. 99 – decision under review is set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
FYBR v Minister for Home Affairs [2019] FCA 50
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023)
REASONS FOR DECISION
Senior Member K Millar
21 December 2023
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs not to revoke the cancellation of the applicant’s Subclass 444 Special Category (Temporary) (Class TY) visa under the Migration Act 1958 (‘the Act’).
On 4 December 2023, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.
STATEMENT OF DECISION AND REASONS
INTRODUCTION
SENIOR MEMBER: You are a citizen of the United Kingdom who migrated to Australia with your parents in 1995 when you were four years old. Until your visa was cancelled you held a Resident Return or subclass 155 visa. You married in 2014 and you have two children who are Australian citizens. Your son is 12 years old, and your daughter is 10 years old.
On 18 October 2021 you were sentenced to a term of imprisonment of over two years for family violence related offences. As a result, your visa was cancelled under section 501(3A) of the Act. You sought revocation of the cancellation of your visa. On 14 September 2023, a delegate of the Minister declined to revoke the cancellation. You have applied for a review of this decision.
The hearing of this matter was adjourned for one day to allow written submissions to be made by you before the hearing. In hearing this matter oral evidence was taken from you, from your parents Mr Ian Hillard and Ms Karen Hillard, and clinical psychologist Dr Lisa Chantler.
The legislative framework
Section 501(3A) of the Act states that the Minister must cancel a visa that has been granted to a person if satisfied the person does not pass the character test because he or she has a substantial criminal record and is serving a sentence of imprisonment on a fulltime basis in a custodial institution for an offence against a law of the Commonwealth, a State or Territory.
According to paragraph 501(6)(a) of the Act a person does not pass the character test if he or she has a substantial criminal record. That is defined in paragraph 501(7)(c) as including where the person has been sentenced to a term of imprisonment of 12 months or more.
Under section 501CA(4) of the Act, the Minister, and the Tribunal in the place of the Minister, may revoke the cancellation of the visa if the person makes representations in accordance with an invitation, and the Minister or the Tribunal is satisfied that either you pass the character test or there is another reason why the original decision should be revoked.
In looking at whether there is another decision to revoke the cancellation, I am bound by written directions given by the Minister under section 499 of the Act. The Minister has made written directions about the exercise of the power to revoke the cancellation of the visa in Direction No 99- Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.[1] I will call that ‘the Direction’.
[1] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (23 January 2023).
The issues to be decided in this matter are whether you pass the character test and if you do not pass the character test, whether there is another reason the cancellation of the visa should be revoked.
Does Mr Hillard pass the character test?
Your offending history commenced in 2008 with offensive language, which is recorded without conviction. In 2015, you were convicted of driving with excess blood alcohol, fined $900 and disqualified from driving for four months and three weeks.
On 30 October 2018, you were convicted of damaging a building or motor vehicle, two counts of failing to comply with a bail agreement, and contravening the terms of an intervention order. In 2019, you were convicted of driving with methamphetamine in your blood and your driver’s licence was disqualified for 12 months.
In 2020, you were convicted of driving an uninsured and unregistered car, driving while disqualified, three counts of contravening an intervention order, and breach of bail. Several fines were imposed and a sentence of imprisonment of four weeks was imposed for three counts of breaching the intervention order.
The offences that led to the cancellation were trespass in residence, aggravated offence, damage to a building, and contravention of an intervention order. You were sentenced on 18 October 2021 in the District Court of South Australia to a term of imprisonment of two years, eight months and 10 days. You were separately sentenced to a term of imprisonment of one year 10 months and 16 days for trespass, which was served partly concurrently. As you have been sentenced to a term of imprisonment for more than 12 months you have a substantial criminal record and you do not pass the character test.
Is there a reason the cancellation should be revoked?
The next issue is if there is another reason why the original decision should be revoked. For the purpose of deciding whether not to revoke the mandatory cancellation of your visa, the Direction contains several principles that must inform a decision maker’s application of the considerations. I have taken those principles into account.
Paragraph 8 of the Direction sets out five primary considerations I must take into account. They are:
·     The protection of the Australian community from criminal or other serious conduct;
·      Whether the conduct engaged in constituted family violence;
·     The strength, nature, and duration of ties to Australia;
·     The best interests of minor children in Australia; and
·     The expectations of the Australian community.
Paragraph 9 of the Direction sets out four other considerations that must be taken into account, and these are:
·     The legal consequences of the decision;
·     The extent of impediments if removed;
·     The impact on victims; and
·     The impact on Australian business interests.
I note the importance of other considerations being ‘other’ considerations and not ‘secondary’ considerations as outlined in Suleiman v Minister for Immigration and Border Protection [2018] FCA 594.
As stated by the Full Federal Court in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19, ‘…particular circumstances … may justify greater weight being given to one or more of the other considerations than one or more of the primary considerations.’[2]
[2] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19, [34].
I have considered each of the primary and the other considerations.
Protection of the Australian community
Primary consideration 1 is the protection of the Australian community. This involves looking at the nature and seriousness of your conduct to date and the risk to the Australian community if you should commit further offences or engage in other serious conduct.
Looking first at the nature and seriousness of your conduct to date this is set out in paragraph 8.1.1 subparagraph 1 of the Direction.
Subparagraph 1(a) provides that:
Without limiting the range of conduct that can be considered very serious, the types of crimes or conduct described below re viewed very seriously by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii.crimes of a violent nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed.
The sentencing remarks of Judge O’Sullivan of 18 October 2021 for the offences of aggravated criminal trespass, damaging property, and contravening a term of an intervention order state that you and your former wife had been in a relationship for approximately eight years, in which time you had two children. You separated in June or July of 2018. The relationship was characterised as volatile, with you being verbally abusive and aggressive such that an intervention order was granted on 25 September 2018 protecting your former partner.
Judge O’Sullivan describes the offending as follows.
Early in the evening on 29 July 2020 the complainant was home alone when she started receiving abusive text messages from you as well as a number of phone calls. With the exception of one call she did not answer. On that one call you were verbally abusive to her so she hung up.
Later that evening at 9.20pm the complainant saw a small dark coloured vehicle speed into her driveway. Knowing it was you given the text messages and the manner in which you drove she ran to the front door to make sure it was locked, then into the toilet and locked it from inside. She called 000.
The complainant heard you yelling abuse at her and threatening to take the children. You broke down the front door. The complainant heard a door break and she crouched down next to the toilet door and saw a hole in the toilet door with debris on the floor around her. A silver metal baseball bat had been driven through the toilet door. You were outside the toilet door yelling.
Shortly after the complainant’s ex‑partner attended at the address to collect his property. There was some further yelling from you before it went quiet. Ultimately the complainant’s ex‑partner told her it was safe to come out.
It is fortunate that the complainant did not suffer or sustain any physical injuries but it is clear from the victim impact statement, to which I will refer in a moment, that the ordeal was absolutely terrifying for her.
Police attended the premises at about 9.40 pm observing that the inner wooden frame of the front door was damaged and the toilet inside the premises had a circular hole in the middle of the wooden door, just above the handle. That hole was approximately 75 millimetres wide. When police attended the complainant was visibly upset.
You were arrested on 3 August 2020; however, you were not interviewed due to your mental state and instead you were taken to hospital where you spent the night before then taken into police custody.
These actions, as described by Judge O’Sullivan, fall readily within the definition of family violence in paragraph 4 of the Direction and are viewed very seriously. You have also engaged in other conduct that is family violence, with two counts of a breach of an intervention order in 2018 that resulted in imprisonment. These were described by Judge O’Sullivan as Calling your former wife’s mobile telephone, sending her numerous text messages, attending her home and leaving a handwritten note in her letterbox and smashing her front window.
The previous intervention order and previous imprisonment were noted by Judge O’Sullivan not to have deterred you.
While you and your father complain of messages sent to you by your former wife and her family, messages sent by you include you calling your former wife ‘A fucking mutt’ and stating ‘Hopefully you go hang yourself or something’.
You have also acknowledged that on one occasion you pushed your mother, causing her to fall to the ground. Your mother obtained an intervention order. This is also family violence. Your account that you were trying to get to your children ignores the gravity of your actions towards your mother.
There is a further report, although no charges were proceeded with, about your behaviour towards another former partner with an allegation that you struck her in a shopping centre and attempted to run her off the road. That account is contained in the police records. You say the first was an accidental contact, and the second was an attempt to get her to pull over, which she did, and then you had an argument.
You did not deny that you made contact with your former partner, and that she was struck under her eye. I am not satisfied that this conduct was accidental as you claim, and this also falls within the definition of family violence in paragraph 4 of the Direction and is also viewed very seriously.
Subparagraph 1(b) does not apply on the facts of this case. Subparagraph 1(c) requires me to have regard to the sentence for an offence other than the offence of family violence and other types of violence. In your case, sentences for other offences were addressed by fines and bonds. Of note is your removal of a home detention bracelet and four counts of failure to comply with a bail agreement, which was discharged with conviction for time spent in custody cumulatively with other offences.
Subparagraph 1(d) requires me to have regard to the frequency of your offending and whether there is any trend of increasing seriousness. You consistently offended from 2018 when your marriage broke down until you were imprisoned and then in immigration detention. The increasing severity of your offending is shown by the significant sentence you received in 2021.
Looking at the cumulative effect of your offending, as your serious offending commenced in 2018 and ended when you were imprisoned, there is no significant cumulative effect. However, the cumulative effect of family violence against your former wife should not be ignored, and it is reflected in the effect on your former wife as a result of your conduct.
I note subparagraphs (f), (g) and (h) do not apply.
The rest of the relevant subparagraphs of paragraph 8.1.1(1) of the Direction in their totality weigh in favour of not revoking the cancellation of your visa.
Risk to the Australian community
Turning next to the risk to the Australian community should you commit further offences or engage in other serious conduct.
Nature of the harm
Turning first to the nature of the harm if you should engage in further criminal or serious conduct, the nature of the harm to your former wife is detailed in the sentencing remarks. Your former wife is recorded as living in constant fear for herself and the children and experiencing distress, which strains her relationship with the children. It caused financial stress to her because she had to take unpaid leave from her job. She has harmful memories and flashbacks, which make her physically ill.
If you offend in a similar way she would be expected to suffer similar harm. Should you offend again by using drugs and driving this poses a serious risk to other road users. Cutting a home detention bracelet and failing to comply with orders shows a disregard for the laws of Australia.
You and your family attempted to minimise the harm experienced by your former wife by referring to her conduct and the conduct of her family towards you. Your former wife is not party to these proceedings and has no opportunity to dispute these claims. She is not a person whose behaviour is the subject of a visa cancellation and I have some concern about trying to attribute any blame to your former partner and the influence of your family on you.
Likelihood of engaging in further criminal or other serious conduct
Looking at the likelihood in engaging in further criminal or other serious conduct - you’ve provided a psychology evaluation by Dr Chantler who also gave oral evidence. This was somewhat silent on the prospects of you resuming drug use, as your ability to abstain in the community is untested. But the development of supports outside detention is noted.
Dr Chantler’s opinion about you engaging in further acts of violence is that the risk is greater than most other men of your age. The risk reducing depends on your abstinence from drugs and engaging in appropriate treatment. However, it is the rehabilitation to the time of this decision that must be taken into account. Dr Chantler reports that given your previous offending you will always have a minimum of a low risk of reoffending.
You point to your intention to undertake further rehabilitation in the future, but I can only take into account rehabilitation achieved by the time of this decision. While in immigration detention you have completed courses on understanding diabetes management and a balanced diet, understanding methamphetamine addiction disorder, mental health studies, suicide, violent behaviour and substance abuse, fundamentals of domestic violence and abuse, and the impact of absentee parents on childhood development.
You state that the prospect of losing your visa has been a lesson and that you now realise the effects of your behaviour and your drug use on your family. While Dr Chantler said the skills you’ve learnt in the family violence courses, which I’ll detail shortly, will assist you in abstaining from illegal drug use in the community, I consider this of marginal value when Dr Chantler also recommends specific rehabilitation programs that relate to drug use.
Your rehabilitation included a course while in Port Augusta Prison on family violence, although the course was disrupted by COVID-related restrictions, this was a lengthy course, which started in June 2022 and finished in January or February 2023. You could identify to Dr Chantler some of the key matters you took from this course, which shows that you did engage with this course, improved your knowledge of family violence and developed strategies to prevent further incidents in the future.
This knowledge and the strategies haven’t been tested in the community, or when you are under stress, or when having direct or indirect interaction with your former wife about the care of your children. Your former wife has sole parental responsibility for the children, which your mother intends to challenge. Your mother is concerned about your former wife’s ability to parent your children, particularly as your daughter has type 1 diabetes.
To remain in contact with your children and seek a legal basis to increase your role in their lives will involve interaction with your former partner and this is a situation that may cause you stress. Your ability to manage that stress without resorting to threats or damage to property is untested.
Your previous account of your actions in terms of protecting your children rather than your own desire to see them reflects Dr Chantler’s assessment that you present yourself as relatively free of shortcomings that most people would admit. Judge O’Sullivan states:
Your realisation you could deal with the situation in another way rings hollow in light of your history of violence towards your former partner.

In your initial response seeking revocation you said you believed your children were in an unsafe environment of drug use, and with people who were sending threats to your girlfriend at the time, so you did not think that was a safe place for them to be. This does not excuse your behaviour towards your former wife.
Much was made in this matter of whether or not you accepted responsibility for your actions towards your former wife and whether you are remorseful for your behaviour. You considered your actions justified by a desire to see your children and your view of their care, which to some degree puts your needs ahead of the interests of your children and above the distress your actions may cause your children.
As submitted by the Minister, if you merely wanted to check on your children when you unlawfully entered your former wife’s premises, then taking a baseball bat with you and using this to put a hole in the door behind which your former wife, and on your account your children, were sheltering is not understandable.
It was submitted that the terms of other submissions made by a former representative were not authorised by you, in particular, the degree to which you blame your former wife and her associates for your actions. I place greater weight on the documents prepared by you than those of your representative.
I remain concerned that you considered your actions justified by your perception of the needs of the children and whether you put your own needs above those of others. You have made steps in understanding the effect of family violence, however, these steps are not tested in the community.
I do consider that you are remorseful for putting yourself in your current situation and that you now appreciate the effect your conduct has on your ability to have a positive relationship with your children. Whether or not you completely accept responsibility or feel significant remorse for your actions does not itself govern the risk you may post to the Australian community.
If you are released from immigration detention you plan to live with your father who lives close to your mother who has the care of your children. Your mother envisages a gradual return to contact with you. However, your former partner is the person who can currently make these decisions. Your mother also states that she will not support contact if this is not in the best interests of your children.
While your relationship with your parents has previously been negatively affected by your drug use, they are supportive of you and supportive of your relationship with your children. Their support of you is a protective factor against reoffending, with some qualification as their care and concern did not prevent you from using drugs or offending in the past, including on being released from prison. You have an offer of an employment in tiling.
These circumstances act to reduce your risk of reoffending. Other factors which reduce your risk of reoffending are your relationship with your children and how important this is to you, your desire to be in their lives, and your realisation that any further offending may result in your visa again being cancelled and you being removed from Australia.
Had there not been the support around you from your parents and opportunity for employment, your desire to be with your children, and the realisation that you will be required to leave Australia if you again offend, I would have assessed you as a moderate risk of reoffending. But given these factors I consider there is a low to moderate risk of you reoffending.
Overall, the risk to the Australian community weighs moderately in favour of not revoking the cancellation of your visa.
Family violence
You have been convicted of offences involving family violence and the length of your sentence reflects the severity of these offences. You have also engaged in other conduct, which you’ve admitted, but not to the severity reported against another former partner and your mother.
The frequency and seriousness of this conduct increased prior to your imprisonment. Judge O’Sullivan notes that previous convictions for breach of an intervention order did not deter you, and the conduct which led to the sentence imposed was very serious.
The conviction for a previous breach of the intervention order should have made you aware of the consequences of further acts of family violence. You have undertaken courses on family violence, as you were required to do for parole. You have said, and are reported to have said, on many occasions that you understand the effect of your behaviour on your former partner.
As I’ve already stated, I have some concern about your response if you are required to be joined in any action taken to change the care for your children.
This consideration weighs moderately against revoking the cancellation of your visa.
Strength, nature and duration of ties to Australia
Primary consideration 3 is the strength, nature, and duration of ties to Australia. You have lived in Australia since you were four years old, during your formative years, and you are now 30 years old. This attracts significant weight in favour of your ties to Australia. Your parents are permanent residents of Australia and your stepmother is an Australian citizen.
Despite having a tense relationship at times, your parents are very supportive of you and both attended to give evidence. You have a strong and longstanding relationship with both parents which has been sustained despite the disruption caused by your reaction to the breakdown of your marriage and your drug use. Their distress at your circumstances and willingness to assist you and your children is apparent.
Your stepmother has suffered a significant stroke and your father now provides her care, which includes cooking, showering and shopping. Your father has sold his business to care for your stepmother. They do not have any other carers who provide care, and your father says if you remain in Australia and live with him this will assist him in caring for your stepmother. Apart from his distress at you leaving Australia, he would also lose support for the care of your stepmother and your stepmother will lose the benefit of your presence to assist her.
It will cause both your parents considerable distress if you are unable to remain in Australia. You want to increase your contact with your children, and this will assist your mother in caring for your children. If your visa remains cancelled your mother will need to manage both the distress of your children and an increased responsibility for their care.
You have a stepbrother and stepsister in Australia, however, you said you do not have much contact with your step-siblings and I find there would be minimal effect on them if you leave. You had difficulty naming your nieces and I find there would also be little effect on your nieces if your visa is cancelled.
I accept it will be highly detrimental to your children if the cancellation of your visa is not revoked. In the case of your daughter this is compounded by her type 1 diabetes, which is exacerbated by stress.
You have some connections through school friends and previous workmates and have arranged employment, if the cancellation of your visa is revoked. You have a friend who’s a godfather to your children and also named another friend from school. You’ve obtained a qualification in civil construction plant operations in Australia and some weight is given to your connection to the community through your work and school friends.
Overall, given your arrival as a young child and the strength of your ties with family in Australia this consideration weighs heavily in favour of revoking the cancellation of your visa.
The best interests of minor children in Australia
Primary consideration 4 is the best interests of minor children in Australia. You lived with your children until you separated from your former wife and played a role in their daily care. At present your children visit you twice a week with your father and you speak regularly.
You have worked on your relationship with your children and are described as having a positive relationship. Your parents report that your children are distressed when separated from you. You have an existing relationship with and have maintained contact with your children despite your imprisonment and your time in immigration detention.
Your ability to play a positive parental role in the future will depend on your ability to abstain from drugs and withstand the stressors involved in making arrangements for your children’s care. While I accept you have undertaken rehabilitation, this is untested in the context of conflict about the care of your children. However, you have been able to spend time with your children in a positive way while you’ve been in detention and on balance I consider you will play a positive parental role until they are 18. There is little acknowledgement on the effect of your drug use and previous family violence on your children and I take that into account.
As I’ve previously mentioned, orders about the care of your children have been made by the then Federal Circuit Court and your former wife has sole parental responsibility. Your mother states that the children are now resident nearly entirely with her and expresses concern about the care of the children when they are with their mother.
It is stated that both children have seen a psychologist in the past, however no reports were provided from a psychologist. Your mother has expressed concern that the psychologist spoke to the mother before she saw the children, and that this provided a negative impression of you. When the psychology appointments ceased your mother did not arrange another psychologist for the children. A court order provided your former wife with the sole parental responsibility and her ability to speak with the psychologist providing treatment to your children cannot be disputed.
The documents you provided include various notifications to Children’s Services about the care of your children. These are heavily redacted to the extent that they are at times incomprehensible. It is apparent many of the reports are from your mother. While it cannot be doubted your mother has the children’s best interests at heart she is also involved in these proceedings and takes a particular view of your former wife’s parenting.
I accept your mother has serious concerns about the care of the children and as she is currently the primary caregiver her views about the welfare of the children must be given due weight. Your mother and also your father have parental roles with your children with your mother playing the most significant parental role.
The specific needs of your daughter must be taken into account given her diagnosis of type 1 diabetes. This requires an extensive medical treatment regime that is carefully conducted by your mother. To your credit you’ve sought to understand more about your daughter’s condition by undertaking a course in diabetes management.
Both of your parents expressed concern about the effect it would have on your daughter if you are required to leave Australia, as stress exacerbates her condition. I accept that if your visa remains cancelled it will lead to a deterioration in your daughter’s medical condition in the short to medium term.
You can stay in contact with your children using electronic means and said your son recently acquired a mobile phone. However, I accept your children have benefited greatly from in person contact with you while you’ve been in immigration detention and that this has been in their best interests. I accept that separation from your children will have a highly adverse effect on your children.
You also have four nieces who are now seven, five, four, and three years of age, but you struggled to name them and described limited contact with them. I consider the best interests of your minor nieces attracts minimal weight in favour of revoking the cancellation of your visa. However, having regard to the effects on your children, the best interests of your children weighs heavily in favour of revoking the cancellation of your visa.
Expectations of the Australian community
The next primary consideration is the expectations of the Australian community. I note that it is not for the Tribunal to determine for itself the expectations of the Australian community. As outlined in the case of FYBR v Minister for Home Affairs [2019] FCAFC 185 I am required to be guided by the government’s views as to the expectations of the Australian community and these are found in the Direction. This consideration weighs against revoking the cancellation of your visa as it is designed to do.
Legal consequences of the decision
Turning to the other considerations of the Direction. The legal consequence of cancellation, if the cancellation of your visa is not revoked, is that you will be an unlawful non‑citizen and will be removed from Australia under section 198 of the Act. There is no information before me that the circumstances engage Australian’s non‑refoulement obligations.
Your ability to apply for another visa will be affected by your criminal history as grounds exist for refusing any further visa on character grounds. There is no readily apparent visa for which you could apply for to return to Australia, and your criminal behaviour means that it’s unlikely you would meet the character test or the public interest criteria for the grant of a visa.
As you are likely to be removed from Australia and it is unlikely you would be able to return, this factor weighs somewhat in favour of revoking the cancellation of your visa.
Extent of impediments if removed
Turning to the extent of impediments if you are removed, there is information before me to suggest that you have a depressive illness. While it is stated that you have bipolar disorder, this is not supported by the current information, including the report of Dr Chantler. This means that you will need to locate services to obtain assistance with your mental health if you are removed to the United Kingdom. Dr Chantler suggests this is difficult as there’s a need to build trust, however, this does not weigh to any significant degree in my decision.
You will need to find housing, obtain work, and will be without the support of your family and away from your children and this will cause you additional distress. You have a half-sister in Wales but have stated that you don’t have contact with her. You also have uncles in the United Kingdom but contact with them is limited.
There will not be any substantial language or cultural barriers. I take as general knowledge that the United Kingdom has healthcare and social services. You are able to work and find work to support yourself. This consideration weighs slightly in favour of revoking the cancellation of the visa.
The impact on victims
The next consideration is the impact on victims. There is no information on the effect of cancellation decision on your former partner. There is reported conduct against your mother, however, there is no information before me to show that this was the subject of criminal charges or a conviction. This consideration is neutral.
The impact on Australian business interests
There is no information before me that any of your employment prospects would compromise the delivery of a significant project or delivery of an important service and this consideration is neutral.
CONCLUSION
Having worked my way through the considerations in the Direction, it is necessary to weigh up all of the primary considerations and the other considerations. After careful examination of the considerations, while there are considerations that weigh in favour of not revoking the cancellation of your visa, I consider that the nature and duration of your ties to Australia and the best interests of your children, together with other considerations that weigh in favour of revoking the cancellation of your visa, outweigh those considerations in favour of not revoking the cancellation of your visa.
That means that, having weighed all of those matters, particularly the best interests of your children and that the strength and nature of your ties to Australia, the cancellation of your visa should be revoked, or that there is another reason under section 501CA(4)(b)(ii) to revoke the original decision.
The decision under review is set aside and substituted with a decision that the cancellation of your visa is revoked. I hope you will take the opportunity, Mr Hillard, to work on the relationship with your children and that you remain aware that any further criminal conduct may again result in your visa being cancelled.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the Applicant’s visa is revoked under s 501(CA)(4) of the Migration Act 1958 (Cth).

97. I certify that the preceding ninety-six (96) paragraphs are a true copy of the reasons for the decision of Senior Member K Millar

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Associate
Dated: 21 December 2023
Date of Hearing: 30 November & 1 December 2023

Advocate for the Applicant:
Mitchell Simmons

MSM Legal

Advocate for the Respondent:
Tom Ellison

Australian Government Solicitor

[2023] AATA 4840

4 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Statutory Construction

Natural Justice