Holloway and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) - [2023] AATA 182

Holloway and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 182 (17 February 2023)
Division:GENERAL DIVISION
File Number: 2020/5203
Re:Jesse William James HOLLOWAY
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member A. Nikolic AM CSC
Date of Decision: 17 February 2023
Place:Melbourne

The Tribunal affirms the decision under review.
........................[sgd]................................................
Senior Member A. Nikolic AM CSC
Catchwords
MIGRATION – mandatory visa cancellation – citizen of Canada – Class AO (Subclass 802) Child visa – substantial criminal record – violent offending – failure to pass good character test – mandatory visa cancellation – whether another reason to revoke mandatory cancellation – Ministerial Direction 90 applied – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175
Beezley v Repatriation Commission (2015) 150 ALD 11
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67
Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 056
Holloway v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 945
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126 Healey and Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2021] AATA 4309
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Maxwell v R (1996) 184 CLR 501
Minister for Immigrationand Border Protection v Le (2016) 244 FCR 56
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Minister for Immigration and Migrant Affairs v SRT (1999) 91 FCR 234
Nathanson v Minister for Home Affairs [2022] HCA 26
Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021)
Sentencing Advisory Council, “Imprisonment,” Andrews and James Bonta, The Level of Service Inventory–Revised (Multi-Health Systems Inc. 1995)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
17 February 2023
INTRODUCTION

The Applicant has asked the Tribunal to review the Respondent’s decision not to revoke the cancellation of his Class AO (Subclass 802) Child visa. The hearing was held by video at the Tribunal’s Melbourne Registry on 6, 7 and 8 February 2023. The Applicant was represented by Mr William Glenister, a solicitor from William Gerard Legal. The Respondent was represented by Ms Ada Wong, a solicitor from Mills Oakley Lawyers.
For the following reasons, the Tribunal affirms the decision under review.
BACKGROUND
The Applicant is a 40-year-old Canadian citizen. He spent his childhood and early teenage years in Canada before arriving in Australia on 2 August 1997. He was then almost 15 years old and has not departed since.[1]
[1] Exhibit R1, 65.
The Applicant has an extensive criminal record in Australia,[2] with convictions recorded against him in almost every year between 2002 and 2019. His court appearances between 2002 and 2009 are almost all in Western Australia, while those between 2012 and 2019 are in New South Wales. He has committed offences involving violence, illicit drugs, dishonesty, breaches of court orders, property damage, and offensive behaviour. His violent offending has been directed at several intimate partners, strangers, and public officers.
[2] Ibid 34-38.
As a result of several convictions on 16 June 2006, including for violent offending, the Applicant was informed in February 2007 that his visa was liable for cancellation.[3] After considering his representations, the Respondent decided not to cancel the visa but issued the following warning (“2007 Warning”):
‘The Delegate of the Minister for Immigration and Multicultural Affairs has decided on this occasion not to order the cancellation of your AO 802 visa on the basis of these convictions. Nevertheless, you are warned that any further criminal conviction will lead to reconsideration of the cancellation of your visa.
Disregard of this warning will weigh heavily against you if your case is reconsidered.’
[3] Ibid 64; 183.
The Applicant continued to reoffend after receiving the 2007 Warning, with convictions recorded in 2008, 2009, 2012, 2013, 2015, 2016, 2017, 2018, and 2019. His latest convictions in 2019 resulted in several sentences of imprisonment as follows:
(a)3 July 2019: 18 months’ imprisonment for Assault occasioning actual bodily harm, and 21 months’ imprisonment for Reckless wounding.
(b)27 May 2019: Nine months’ imprisonment for Break and enter house.
On 18 November 2019, the Applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”).[4] He made representations to have the cancellation decision revoked,[5] but on 20 August 2020, a delegate of the Minister refused to do so.
[4] Ibid 66-68; 77.
[5] Ibid 78-105.
This is the third time this application has been heard by the Tribunal. A previous decision in 2020 by a Senior Member, and in 2022 by a Deputy President, were quashed by the Federal Court of Australia and remitted for determination according to law.[6]
[6] Ibid 591-610; 898-912; Holloway v Minister for Immigration, Citizenship, and Multicultural Affairs [2021] FCA 945 (Jackson J); Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126 (Colvin J).
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act obliges the Minister to cancel a visa granted to a non-citizen if satisfied that the person does not pass the character test. This includes if they are sentenced to 12 months or more imprisonment, being served on a full-time basis.[7]
[7] The Act, s 501(3A), read in conjunction with s 501(6)(a) and s 501(7)(c).
Section 501CA(4) of the Act confers a broad, discretionary revocation power if a decision-maker is satisfied that the non-citizen passes the character test, or there is ‘another reason’ to do so.[8] Non-revocation decisions by ministerial delegates are reviewable by the Tribunal.[9]
[8] Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417 (Plaintiff M1/2021), [22].
[9] The Tribunal’s jurisdiction arises from s 500(1)(ba) of the Act, read in conjunction with s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
ISSUE
It is not contested by the parties that the Applicant fails the character test.[10] The Tribunal finds he does not pass it because he has a ‘substantial criminal record’ after being sentenced to a term of imprisonment of 12 months or more.[11] The issue to be determined, therefore, is whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ to do so.[12]
[10] Applicant’s Statement of Facts, Issues, and Contentions dated 22 December 2022 (“ASFIC”), 1 [2]; Respondent’s Statement of Facts, Issues, and Contentions dated 20 January 2023 (“RSFIC”), 8 [46].
[11] Section 501(6)(a) of the Act, read in conjunction with s 501(7)(c).
[12] The Act, s 501CA(4)(b)(ii); Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187, [3]-[5] (Katzmann J); [24] (Derrington J); [103] (O’Bryan J).
The Tribunal must make ‘the correct or preferable decision’ on the material currently before it,[13] guided by principles summarised by the Full Court about how the existence of ‘another reason’ is determined:[14]
(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.
[13] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [96]–[98] (Hayne and Heydon JJ); Nathanson v Minister for Home Affairs (2022) 96 ALJR 737 (Nathanson); AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175, [25] (Wigney, Abraham and Rofe JJ); Beezley v Repatriation Commission (2015) 150 ALD 11, [68]
[14] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294, [27], reflecting with approval on the approach taken in Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
More recently in Plaintiff M1,[15] the plurality of the High Court stated the following about how representations made by an applicant should be addressed:
…
23. It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore representations. The question remains how the representations are to be considered.
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations…the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims”…
25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
[15] Plaintiff M1/2021, [22]-[27], (Kiefel CJ, Keane, Gordon and Steward JJ), [22]-[25].
Ministerial Direction 90
The Tribunal must comply with a ministerial direction, made under s 499(1) of the Act, and known as ‘Ministerial Direction 90’ (“the Direction”).[16] The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
[16] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ); Nathanson, 2 [4].
Clause 6 of the Direction provides that, informed by the principles at cl 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision. Clause 8 of the Direction refers to the following primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia; and
(d)Expectations of the Australian community.
Clause 9 of the Direction sets out a non-exhaustive list of other considerations:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Links to the Australian community, including: (i) Strength, nature, and duration of ties to Australia; and (ii) Impact on Australian business interests.
Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations’. This does not preclude the Tribunal, however, from giving an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[17]
[17] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’. The weighing process, however, is left to individual decision-makers.[18]
EVIDENCE
[18] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57].
Documentary evidence
The following documents were tendered into evidence:
(a)G-documents from the Respondent numbering 912 pages;[19]
(b)Tender Bundle from the Respondent numbering 308 pages;[20]
(c)Two-page, undated statement of the Applicant, which was lodged with the Tribunal on 30 December 2022;[21]
(d)Two-page statement of the Applicant’s father dated 29 December 2022;[22]
(e)Two-page statement of the Applicant’s stepmother, dated 29 December 2022.[23]
(f)Extract from website at Marisa Peer.com[24]
[19] Exhibit R1.
[20] Exhibit R2.
[21] Exhibit A1.
[22] Exhibit A2.
[23] Exhibit A3.
[24] Exhibit T1.
Applicant’s evidence
The Tribunal has considered the Applicant’s documentary evidence, including a Personal Circumstances Form dated 26 November 2019 (“2019 PCF”), previous statements dated 24 July 2020 and 1 December 2021, and transcripts of earlier Tribunal hearings.[25] At the commencement of his oral evidence the Applicant adopted Exhibit A1 as his statement in this proceeding. His oral evidence, which occupied the first hearing day and some of the second, is summarised as follows:
[25] Exhibit R1, 113; 476-557; 613; 733-814.
(a)The Applicant said his closest relationships in Australia are with his father, stepmother, two biological daughters, and partner Ms Chelsea Djukich. Given the children are minors, the Tribunal will refer to the younger child as “Ms J” and the elder as “Ms K”. Information that may tend to identify them has been redacted.
(b)The Applicant said his father has consistently provided him with financial, practical, and emotional support, which he expects will continue, even if he is returned to Canada. His stepbrother, who owns a bricklaying business in Western Australia, has offered him employment as a labourer if released.[26]
[26] Ibid 617-618.
(c)The Applicant said he made enquiries about what support can be provided to him by family members in Canada. He referred to a nephew who owns a business and can employ him, although this would not be permanent. A paternal uncle/aunt can also accommodate him ‘for a little while’. The Applicant’s father is currently visiting relatives in Canada and has a good relationship with the uncle who has offered accommodation.
(d)The Applicant said he plans to live in Western Australia with his father and stepmother until he can afford his own accommodation. He claimed that Ms Djukich, intends relocating from Queensland to live with him once they are ‘positive about what we’re doing’. She would not do so while he was living with his parents, which the Applicant thinks will be for a relatively short time. He said Ms Djukich has not visited him during the last four years ago because she works, has her ‘grown’ children living nearby, and is unable to afford travel costs. He claimed she will ‘definitely be a positive influence’ because when they were previously living together, there were ‘rough years’ and they could now ‘help each other’. The Tribunal inferred this was a reference to Ms Djukich’s arrest in New South Wales in September 2018 and extradition to Queensland on drug charges.[27] The Applicant agreed Ms Djukich was ‘on the run’ from Queensland authorities when their relationship commenced, but claimed he was unaware of this until after her arrest. He decided to continue their relationship after she was extradited. The Applicant said Ms Djukich has been ‘on parole and clean during the last three years’. When asked why Ms Djukich was not called as a witness for the current hearing, nor provided a statement to confirm the status of their relationship, the Applicant said this was unnecessary because their positions are unchanged since the January 2022 Tribunal hearing.
[27] Ibid 781 [13]-[15].
(e)The Applicant invoked the interests of two daughters, who are currently 14 and 17 years of age. He split up with the children’s mother when they were approximately two and five years of age and moved to New South Wales. The children have since been cared for mostly by their grandmother. The Applicant does not know who the legal guardians of the children are. When asked why there are no recent statements from his daughters or their legal guardians, the Applicant said he has ‘no idea’ because this was ‘up to [his] dad’ who is currently visiting Canada.
(f)The Applicant said that since reconnecting with his children their relationship is ‘going good’ and they are ‘really happy to have [him] back in their life’. He claimed the children’s mother remains addicted to substances and does not set ‘a very good influence’. The Applicant said his children plan to ‘live with [him] rather than 12 other people’ at his grandmother’s home.
(g)When asked by Mr Glenister what he anticipated the relationship with his daughters would be like if released, the Applicant was ‘not too sure’ but thinks it ‘will be good’. He said there is ‘no love in a virtual relationship’ and he would feel ‘heartbroken’ if removed. The Applicant’s claims relating to each child are summarised as follows:
(i)Ms K: The Applicant said Ms K gave birth to his grandson last year and lives at her grandmother’s home with the child’s father. Ms K later stated in her oral evidence, however, that the child’s father lives elsewhere, and she is unsure if they are still together. The Applicant claimed he had ‘quite an involvement’ in his grandchild’s birth, despite having been in custody during the last four years. He referred to his father and stepmother spending ‘thousands of dollars’ to buy baby clothes, a car seat, and other items. The Applicant said his father brought Ms K and his grandchild to visit him in immigration detention, and they speak frequently on the telephone. When asked by Ms Wong whether his parents also provide emotional support to Ms K, the Applicant said they do not, because Ms K is closer to him and ‘doesn’t really know them’.
(ii)The Applicant claimed that ‘as far as [he] knows’, his 14-year-old child, Ms J, moved out from her grandmother’s home about six months ago and is ‘staying with a friend’. The Applicant said Ms J does not really remember him, but they speak on the telephone ‘on and off’, including ‘about school,’ and she messages him ‘every couple of days’. When asked what they discussed about school, the Applicant responded: ‘She doesn’t necessarily talk to me about school, but problems at school and this and that’. He claimed Ms J visited him in immigration detention ‘a couple of times’, but could not recall when this was, perhaps in the last year.
(h)Because of the Applicant’s reliance on the interests of his children and a grandchild, the Tribunal decided to call Ms K as a witness. The parties did not object to this, and Mr Glenister organised Ms K’s appearance for the second hearing day. Ms K’s oral evidence is discussed later in these reasons.
(i)The Applicant said the triggers for his past drug use were his parents breaking up while they were living in Canada, his father always being at work, and conflict with his first stepmother. He said this caused him to find ‘comfort with people doing drugs’ to ‘forget about the truth of reality’. Associating with these people gave him a ‘sense of family’. The Applicant initially claimed there was a period where he was abstinent from illicit drugs when his children were born, but subsequently conceded that ‘some drug use’ continued. The Applicant said he relocated from Western Australia to New South Wales about 12 years ago to separate from adverse peers and ‘start again’. ‘This didn’t really work out’ because he ‘wasn’t in the right frame of mind to stop using drugs’ at that time.
(j)The Applicant expressed remorse on several occasions for past crimes, which he linked to persistent drug use. He stated: ‘what’s done is done’ and referred to ample time in custody during the last four years for personal reflection. He claimed to have no intention of relapsing into drug use or committing further crimes, because this would likely end his aspiration for a life in Australia. When asked about why he continued reoffending after the 2007 Warning, the Applicant said he ‘didn’t take it seriously’, but now understands any further offending will result in his removal.
(k)The Applicant said that irrespective of whether he remains in Australia or is removed to Canada, he will not resort to illicit drug use. He prefers to remain in Australia where his main sources of financial, practical, and emotional support are. The Applicant expressed gratitude for time spent in custody since early 2019. When asked why he reoffended after previous terms of imprisonment, the Applicant said they were of insufficient duration. The Applicant said he no longer considers it ‘cool taking drugs’, claiming to be ‘well past relapse…I have no urge – it was fun for me before but it’s not fun anymore…I won’t throw away my life to get high’. He intends avoiding contact with girlfriends and others who ‘did drugs and went to jail’. He claimed to have changed his life by learning new skills and ‘living normal’.
(l)The Applicant claimed that the last time he took illicit drugs was four or five years ago. He was asked about the inconsistency of this claim with medical records dated 2020, in which he told detention centre medical staff that he was using illicit Buprenorphine and asked to be placed on the Methadone Program.[28] The Applicant said he was ‘thinking about using ice’ but did not do so. He said that his claims about Buprenorphine use were intentionally false because other detainees advised him ‘a drug habit’ is a prerequisite for placement on the Methadone Program.
[28] Exhibit R2, 4; 223; 232; 237.
(m)The Applicant was asked by Ms Wong about a package that was addressed to him at the detention centre, which was found to contain 54 strips of Suboxone concealed in food. The Applicant said he has no knowledge of this package and said he was instead expecting a package from his mother in Canada that contained shoes and a hat. He said it was relatively common in detention centres for those using illicit drugs to send packages to other detainees without their knowledge, then recover the package after it arrives. The Applicant said he was not involved in any incidents of misconduct in custody, except for ‘talking during muster in Silverwater jail’.
(n)Ms Wong asked the Applicant about a medical report referring to him exhibiting ‘drug seeking behaviour’ by requesting a powerful painkiller, Naproxen, by name.[29] The Applicant said a toothache was affecting his sleep and other painkillers like Tramadol were ineffective. He said staff refused his request for Naproxen.
[29] Ibid 43.
(o)In terms of rehabilitation, the Applicant said he undertook some drug programs in 2019, avoided illicit drugs in custodial settings, has not been violent to others, and has ‘no ambitions to go back to that life’. He said that because he no longer has any ‘urges to take drugs’ there is ‘no need’ to do further counselling. When asked what he learned during the Equips Program, the Applicant said it ‘more or less gave [him] time to think about what he was doing’ and with abstinence he had ‘started to come back down to Earth’. He said the courses also helped him feel remorse for past conduct and he ‘started to see things from the other person’s point of view’. In the past his ‘number one problem was using methamphetamine’ but he no longer uses drugs and does not have an anger problem. When asked about a report in evidence that he had ‘limited understanding’ of the content of the rehabilitation course,[30] the Applicant said he had ‘little hiccups here and there’.
[30] Exhibit R1, 437.
(p)The Applicant said he undertakes counselling ‘every day or every other day’ with his stepmother who is a hypnotherapist, which helps him maintain a positive attitude, reflect on past actions with remorse, and prepare for release. When asked by Mr Glenister how his stepmother helps him with remorse, the Applicant replied: ‘She’s counselled me – we talk about it – it’s confidential’. The Applicant said he also undertakes work in the detention centre coffee shop and has developed art and leatherwork skills that can be developed into a future business. He intends ‘staying on the track [he has] been on during the last four to five years’.
(q)The Applicant was asked by Ms Wong during cross-examination about family violence against previous intimate partners, which is summarised as follows:
(i)The Applicant said he and the mother of his two children, who the Tribunal will refer to as “Partner 1”, had ‘some problems’. He said that if the Tribunal investigated Partner 1’s ‘record’, it would be readily apparent what he was ‘getting upset about’ and ‘there are always two sides to a story’. He claimed it was Partner 1 who started him ‘sniffing glue’ and that she continues to abuse illicit drugs and other substances to the present day. The Applicant agreed that at the time he assaulted Partner 1 in 2006, Ms K was about eight months old. When asked why Partner 1 was on crutches at this time, the Applicant said they were ‘mucking around’ by throwing bricks at each other. A brick he threw struck and fractured her ankle. When asked if Partner 1 was afraid of him during their relationship, the Applicant responded: ‘I don’t know – I can’t tell you’.
(ii)The Applicant was asked about sentencing remarks regarding his violent conduct against another intimate partner at the end of 2015 and early 2016, who the Tribunal will refer to as “Partner 2”. When asked if he could recall the circumstances of this assault, he replied: ‘sort of, not exactly’. When asked if Partner 2 feared him during their relationship, the Applicant agreed she did, but claimed they ‘still talk to this day’ via social networking, but ‘not very often’. He claimed she had reached out to him in an attempt to resume their relationship, which he rejected because she is ‘in the circle’ of people using ice, and he does not want ‘anything to do with these people anymore’.
(iii)The Applicant was asked about his 2019 convictions for violence against an intimate partner who will be referred to as “Partner 3”.[31] When asked if Partner 3 feared him during their relationship the Applicant said: ‘She had no reason to because I left and had nothing to do with her for a year and a half. I’m sorry – there’s not much to say about it’. When asked about sentencing remarks stating he located Partner 3, was arrested, and an Apprehended Violence Order was taken out against him, the Applicant could not recall locating her. When asked by Ms Wong how his actions affected Partner 3, the Applicant referred to ‘emotional damage’ but was ‘not too sure’. He said that he continues talking with Partner 3 but agreed there is no evidence from her in this proceeding. The Applicant claimed he pleaded guilty to violence against Partner 3 despite not being responsible for her injuries, which he claimed were inflicted by a drug dealer who Partner 3 stole ice from. When asked why he pleaded guilty, the Applicant said Partner 3 promised to split the proceeds of her victims of crime compensation if he did so. Later in his evidence, however, he claimed that his guilty plea was part of a plea bargain to receive a lesser sentence. It was put to the Applicant that aspects of his evidence suggested he lied when it suited his interests. He agreed this was the case during his ice addiction but was no longer so.
(iv)The Applicant agreed he has unmet rehabilitation needs and intends addressing these through continuing therapy with his stepmother.
(r)The Applicant referred to periods of work in Australia as an excavator operator with a piling company from about 2005 for eighteen months. He stated that most of his work in Australia, however, was ‘for cash’ and ‘off the books’.
(s)The Applicant said he takes medication for ‘stomach acid’ and a ‘very small dose’ of an unnamed medication to help him sleep. He also uses an asthma inhaler when required and keeps an EpiPen as a precaution to deal with an allergy to raw banana and ‘the green bit of tomato’.[32] The Applicant said blood tests were undertaken to assess unexplained chest pain, which showed ‘nothing abnormal’. The Applicant asserts there is no medical or psychological issue, or current medication taken, that would stop him working as a labourer for his stepbrother.
[31] Ibid 39-40.
[32] Ibid 250-251.
Evidence of Applicant’s father

The Applicant’s father gave oral evidence by video from Canada, where he is currently visiting. He adopted his two-page letter dated 29 December 2022 as his statement in this proceeding. The Tribunal has also considered his other documentary evidence in the G-documents.[33] A summary of his oral evidence now follows:
(a)The witness said he and the Applicant did not see ‘eye to eye’ about illicit drugs and said that addicts usually call when they are ‘either in trouble or run out of money’. He lost contact with the Applicant at times, but they generally stayed in touch, and he visited him in Sydney when there on business. The witness said he was previously Chief Executive Officer of a company that did a ‘billion dollars a month in business’.[34] He always had a good relationship with the Applicant, and it was he who offered money rather than the Applicant asking for it. The witness could not recall if he had last seen the Applicant in the community ‘by chance’ in December 2018.[35]
(b)The witness said the Applicant’s prolonged abstinence from drugs in custody had resulted in positive changes. This included a better understanding of his addiction and past crimes, which resulted from extensive ‘therapy’ with his stepmother.
(c)If the Applicant was removed to Canada, this would have a devastating effect on the witness, who said he is ‘finally having a relationship with his son’. He said it would be difficult for him to visit Canada frequently because of his age.
(d)The witness said he wanted the Applicant to live with him for at least six months to ensure he remained abstinent. Any drug use in his home would not be tolerated. The witness said he would continue supporting the Applicant financially if repatriated and accommodation could also be provided. He expected the Applicant could find work but claimed life in Canada would be a poor substitute for the greater support he could draw on in Australia. The witness said only $500 a month in income support was provided for unemployed persons in Canada and possibly some form of public housing. He referred to a niece in Canada who works for an organisation that provides support to people recently released from prison. There was no evidence from this niece or to corroborate the claim about income support in Canada.
(e)The witness said he has met the Applicant’s two daughters, grandchild, and the grandmother they live with. He took Ms K and her child to visit the Applicant in immigration detention on one occasion, and ‘at least two other times’ before her child was born. He said Ms K is a young mother who needs a lot of support. He does not provide much emotional support to her and said it is his wife and the Applicant who mostly do so. The witness said he purchased ‘a lot of stuff’ so Ms K could look after her child in an appropriate manner. When asked who the father of Ms K’s child is, the witness gave a name that is different to that later provided by Ms K.
(f)The witness said the Applicant’s relationship with his children and grandchild is ‘night and day’ because of improvements in his outlook and ‘mental condition’. The witness thinks the Applicant will be a much better father if released than he was in the past.
[33] Ibid 104, 471, 623-625; 788-802
[34] Ibid 791[ 26].
[35] Ibid 417.
Evidence of Applicant’s stepmother
The Applicant’s stepmother gave oral evidence by video. She adopted a two-page letter dated 29 December 2022 as her statement in this proceeding. The Tribunal has also considered her other documentary evidence.[36] A summary of her oral evidence now follows:
(a)The witness said that since the January 2022 Tribunal hearing she continued to assist the Applicant in gaining a ‘deeper understanding of his childhood’ and the reasons for his addiction and offending. She talks with the Applicant weekly as his stepmother and once a month as his ‘therapist’. When asked what type of therapy was provided, she claimed to be a qualified ‘Rapid Transformational Therapist (“RTT”), Life Coach, and Certified Hypnotherapist’. She said the type of counselling provided to the Applicant is ‘Talk Therapy’, during which she takes ‘clients into their childhood to help them heal’. In later evidence she explained that hypnotherapy could not be provided because of the Applicant’s circumstances, so she focuses on ‘Talk Therapy’.
(b)When asked what qualified her to be a therapist, the witness said she was accredited by Ms Marisa Peer, who is the ‘founder and creator of Rapid Transformational Therapy’. When challenged that this did not appear to be a qualification enabling her to express a ‘professional opinion as a therapist [that the Applicant] will never feel the need to ever turn to drugs again in his life’,[37] the witness disagreed. She claimed that the Applicant has not experienced drug urges nor used them for the last six or seven years. This conflicted with the Applicant’s abstinence claims. The witness was unaware that the Applicant had falsely claimed to have a Buprenorphine addiction in immigration detention to try and gain admission to the Methadone Program. She stated: ‘I can only work with what my clients tell me’.
(c)The witness said she and the Applicant’s father visited him whenever possible. She opined that he turned to drugs because he felt unworthy and had low self-esteem due to childhood experiences. She further claimed that the Applicant’s need for belonging caused him to associate with drug-taking peers, and a lengthy period in custody was a ‘god-send’ because it separated him from such people.
(d)When asked about the effect on her if the Applicant was returned to Canada, the witness said she would be devastated because she loves him and wants the best for him. He will live at their home until he starts work and finds his own accommodation. The witness thought this would occur ‘pretty quickly’, because her son, who owns a bricklaying business, will employ the Applicant as a labourer.
(e)The witness said she speaks to the Applicant’s daughters by telephone fortnightly or every three weeks. She could not recall the last time she spoke to Ms J, who often does not pick up, and sometimes stays out with friends and does not come home. The children all live with their grandmother and several other people.
[36] Ibid 104, 468-469, 538-542; 619-620.
[37] Exhibit A2.
Evidence of Ms K
The Tribunal decided to call Ms K as a witness because the Applicant did not intend to do so. This was not objected to and was arranged by Mr Glenister. Ms K’s oral evidence is summarised as follows:
(a)Ms K is currently 17 years of age and said she most recently reconnected with the Applicant in December 2021. During the January 2022 hearing she referred to him also contacting her in 2013, but nothing came of it. She had visited him in detention, which was facilitated by the Applicant’s father. The idea to visit was hers, because she wanted to ‘see who [her] father was’ and felt that ‘everyone deserves a second chance’. On one occasion she took her son, who is now seven months’ old. The Applicant advises her about the child and life more generally. She wants the Applicant to remain in Western Australia so they can develop a closer father-daughter bond. When asked what support she expected the Applicant to provide if he remained in Australia, Ms K responded: ‘He said he’s going to be there for us’.
(b)Ms K lives with her son at her grandmother’s house which is shared by others. The father of her child lives elsewhere and when asked if they were still together, Ms K replied: ‘kind of’. Her biological mother lives with them sometimes, but her grandmother is legal guardian for her and Ms J, who is ‘in and out’ of the home.
(c)Ms K said she would ‘probably move in with’ the Applicant if he remained in Australia. She would be ‘devastated’ if he is removed to Canada and said a relationship ‘over the phone is not enough’. She did not think they could remain in contact because of her difficulty with overseas numbers. She explained that her efforts to contact the Applicant’s mother in Canada had not elicited a reply and she felt that contact with the Applicant would also be lost if he was removed.
(d)Ms K said she has continuing contact with the Applicant’s father and stepmother and speaks to them by telephone. They have provided her with financial support to purchase items for her child.
TRIBUNAL CONSIDERATION OF EVIDENCE
The Tribunal has concerns about the extent to which aspects of the Applicant’s evidence can be relied upon, some of which came across as inconsistent, exaggerated, or implausible. Examples include:
(a)The Applicant invoked memory issues on several occasions about matters adverse to his application, which he said resulted from prolonged ice and solvent abuse. On other occasions he had clear recall of matters favourable to his application. This included disputing guilt about some family violence offending. While it is accepted that prolonged polysubstance abuse can cause memory problems, there is no expert evidence to corroborate the Applicant suffers any deficiency, or why any memory issues relate almost exclusively to matters adverse to his application. The Tribunal rejects the Applicant’s revisionist claims about family violence. A plea of guilty constitutes admission to and acceptance of all elements of an offence.[38] Moreover, the Tribunal is not permitted to impugn convictions, which are conclusive.[39]
[38] Maxwell v R (1996) 184 CLR 501, [19].
[39] Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354 at 358; Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 244–245; HZCP v Minister for Immigration and Border Protection [2018] FCA 1803, [102] (Bromberg J).
(b)Even if the Applicant’s claim about lying to medical staff about a Buprenorphine addiction to get on the Methadone Program is accepted, this is not to his credit. It gives rise to concerns about the reliability of his other evidence, including the extent of his abstinence. It also diminishes the veracity of his claim that he only lied when using methamphetamine but not since ceasing drug use four or five years ago.
(c)The Applicant stated in oral evidence he undertook counselling ‘every day or every other day’ with his stepmother who is a qualified hypnotherapist. This conflicts with his stepmother’s evidence who said she provided ‘therapy…once a month’, but never hypnotherapy. The evidence about the beneficial effects of ‘Talk Therapy’ also came across as over-stated, including because of the Tribunal’s concerns about qualifications.[40] The Tribunal made enquiries into the qualification claimed by the Applicant’s stepmother, and, without objection of the parties, introduced into evidence an extract from Ms Marisa Peer’s website.[41] This stated in part that the method utilised in Rapid Transformational Therapy: ‘is different from other therapy techniques, such as…Talk Therapy’. It remains unclear to the Tribunal, despite the stepmother’s explanations, what basis she relies upon to deliver ‘Talk Therapy’ to the Applicant or to make expert judgements about his addiction and recidivism risk. Moreover, the basis on which she purportedly expresses an expert opinion is founded on an incomplete understanding of the Applicant’s circumstances, including his fraudulent attempt in detention to gain admission to the Methadone Program.
(d)The Applicant stated in a letter dated 2 December 2021 he has been in a relationship with Ms Djukich since 2017.[42] Ms Djukich also claimed in a letter dated 30 November 2021, that she had been in a ‘de facto relationship’ since meeting the Applicant in Sydney in 2017. Ms Djukich goes on to state she told the Applicant from the outset their relationship was conditional on him getting ‘off drugs’, gaining employment and abiding by the law. In her oral evidence before the last Tribunal hearing in January 2022, Ms Djukich claimed she and the Applicant were ‘together pretty much since we first met, give or take a month at the beginning when we were just - were hanging around each other but after that we've been together pretty much ever since…’.[43] The Applicant’s and Ms Djukich’s claims about the duration and nature of their relationship, however, cannot be reconciled with the following:
(i)Sentencing remarks dated 3 July 2019 state that in July 2017 the Applicant was in an ‘intimate relationship’ and living with Partner 3.[44]
(ii)The Applicant was imprisoned for some months in 2018 and imprisoned or detained since February 2019.
(iii)In his Personal Circumstances Form dated 26 November 2019, the Applicant made no mention of Ms Djukich.[45] They have lived on opposite sides of the Australian continent at least since the Applicants imprisonment almost four years ago.
(iv)Media articles refer to Ms Djukich being extradited under warrant from New South Wales to the Sunshine Coast in September 2018 to face drug trafficking and supply charges that she avoided by fleeing Queensland in 2016.[46] A subsequent article dated 1 October 2020 refers to Ms Djukich pleading guilty in 2019 to a ‘host of drug charges’ and being sentenced to five years imprisonment, before being released on parole eight months later.[47] In her oral evidence before the last Tribunal hearing in January 2022, Ms Djukich agreed she was ‘on the run’ in New South Wales before being extradited to Queensland in September 2018.[48] The Applicant stated during his oral evidence at the current hearing that he only became aware Ms Djukich was ‘on the run’ after her arrest and extradition, but decided to continue the relationship. Ms Djukich did not provide a statement for the current hearing, nor was she called as a witness to confirm the status of their relationship or to corroborate the Applicant’s claims that she still intends relocating to Western Australia to resume their relationship.
(e)The Tribunal does not accept at face value the Applicant’s evidence about the duration and nature of his relationship with Ms Djukich. This includes because at a time when Ms Djukich was purportedly insisting their relationship was conditional on the Applicant abstaining from drugs, she was attempting to evade serious drug charges in Queensland. Similarly, Ms Djukich’s claim that the Applicant did not reoffend or use drugs for the whole time they were purportedly together since 2017,[49] is impossible to reconcile with his criminal history and abstinence claims. There is also no expert evidence to support the Applicant’s rehabilitative claims regarding Ms Djukich.[50] Less weight is placed on this evidence, including about the protective effect of any resumed cohabitation with Ms Djukich.
PRIMARY CONSIDERATIONS
[40] Exhibit R1, 772 [2]-[11].
[41] Exhibit T1.
[42] Ibid 612 [12].
[43] Ibid 780 [30].
[44] Ibid 39 [32].
[45] Ibid 83.
[46] Ibid 689-695.
[47] Ibid 701.
[48] Ibid 781 [13]-[15].
[49] Ibid 782 [15]; [30]; [38]-[41].
[50] Ibid 781 [20]; [25].
Protection of the Australian community from criminal or other serious conduct
Clause 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
Under cl 8.1.1 of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)    violent and/or sexual crimes;
(ii)   crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)    causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)   crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
The Applicant’s 2019 convictions are for his most violent offending.[51] There are also sentencing remarks dated 16 August 2018 regarding dishonesty offending,[52] which refer to the Applicant abusing the Court’s leniency by reoffending while under conditional liberty and causing bonds to be revoked.[53] The Magistrate observed that the Applicant had shown:
‘…no contrition or remorse, no insight and nothing extenuating by way of leniency. There is a grievous risk of reoffending in the area of dishonesty…this offender’s record does not assist him…He is not far off the Court just giving up on him, throwing away the key and leaving him in gaol for life, not quite at that stage yet so I find special circumstances.
[51] Ibid 39-42.
[52] Ibid 45-55.
[53] Ibid 53, [25].
Sentencing remarks from another court appearance on 16 June 2006 highlight the persistence of the Applicant’s offending approximately 17 years ago, with the presiding Magistrate stating in part:[54]
‘You've pleaded guilty to one count of burglary, a count of stealing, three counts of assault public officer and three counts also of breach of bail. You have a record which includes burglary, you've been convicted of burglary in the past and you've also been convicted of other offences. You've been placed on community orders previously, which you've breached, you were also placed on a suspended imprisonment order previously and notwithstanding all of that you've continued to commit offences. These offences are particularly serious; any burglary matter is a serious matter, and the assault upon police officers that occurred on this particular occasion, although you don't particularly recall the events, are serious.
You've spat at police officers and you've spat blood at them and, in my view, that's a matter that the court needs to view seriously…There can be no room within our community for people like you to behave in that way to people such as police officers who are simply doing their job to keep our society safe.
There can be no other outcome in relation to these matters other than a term of imprisonment. The offences are serious, you've had your chances and the court has come to the conclusion that enough is enough.
It's always a very grave thing to send someone to gaol because gaol has its own difficulties but sometimes when all the other remedies are exhausted, the court's left with no option and that is exactly what's happened in this particular instance.’
[54] Ibid 56-58.

The Applicant’s crimes encompass almost all the conduct at cl 8.1.1(1)(a) of the Direction, which is viewed ‘very seriously’. This includes frequent violent offending, crimes of a violent nature against women, and acts of family violence. His offending has increased in seriousness over time, including because of the repeat nature of some offences. His criminal conduct can generally be grouped into the following categories:
(a)Offences involving violence or the threat of violence;
(b)Conditional liberty offences such as breaching bail or other conditions;
(c)Drug offences;
(d)Offences involving dishonesty or damage to property; and
(e)Road / traffic offences.
The Applicant has multiple convictions for violence. On several occasions he assaulted police performing their duties.[55] On 5 May 2018 he smashed a bottle over the head of someone he knew.[56] On another occasion in September 2013 he sprayed adhesive remover into a stranger’s face.[57] At the January 2022 hearing, the Applicant implausibly invoked self-defence for the latter:
‘I was sitting on the bench, the guy came up to me, asked me for a cigarette. He was drunk, came out of the club, and yes, he was a rather big guy, and he started becoming - because I told him I won't give him a cigarette, he started getting aggressive, and I threw that in his eyes and rode off.’
[55] The Direction, cl 8.1.1(1)(b)(ii).
[56] Exhibit R1, 513 [40].
[57] Ibid 267-270.
A New South Wales Police Fact sheet, however, is preferred as the basis on which the Applicant was sentenced as follows:
‘The accused has approached the victim and said words to the effect of "Give me a cigarette”, a request which the victim refused. The accused and the victim have entered into a back and forth verbal argument over the initial request…
The victim has stood up and told the accused to go away. At this point the accused has produced a discoloured plastic water bottle and moved his arm back and forth while holding the bottle in the direction of the victim.
As a result of the accused's actions the victim has been hit by an unknown liquid which struck him in the face and the front of his jacket.
The victim has chased the accused for a short distance before stopping due to the pain caused to him by the liquid running into his eye.
The accused has ridden away from the scene while the victim stayed waiting for the arrival of police.’
The Applicant has offended frequently between 2002 and 2019.[58] The cumulative effect of his conduct has caused significant harm to victims and incurred considerable costs to the community. The latter relates to the police, judicial, corrections, and other resources needed to deal with the consequences of his offending during the last 20 years.[59]
[58] The Direction, cl 8.1.1(1)(d).
[59] Ibid cl 8.1.1(1)(e).
Imprisonment is the most severe sanction available to our courts.[60] The Applicant has received multiple sentences of imprisonment of increasing duration, which have not ameliorated his tendency to commit crimes. This is irrespective of whether he received non-custodial sentences or those that are well below the maximums available for his crimes.
[60] See for example: Sentencing Advisory Council, “Imprisonment,” <
The Applicant offended frequently after the 2007 Warning. This includes a conviction for Criminal damage within approximately eight months of the 2007 Warning, followed by numerous further convictions over the next 12 years. The Applicant has demonstrated a persistent disregard for Australia’s law-enforcement framework.
In terms of ‘other conduct to date’,[61] it is clear from the Applicant’s oral evidence that the scale and duration of his drug addiction is more extensive than a reading of his criminal history alone suggests. Some records in evidence refer to him variously as polite, cooperative, respectful, and generally well-behaved while under CCOs or in custodial settings. Other reports, however, refer to incidents of abusive, drug-taking, and non-compliant behaviours.[62] A more recent record dated 10 August 2021, states that a parcel addressed to him in immigration detention was found to contain 54 strips of concealed Suboxone.[63] The Tribunal notes this is a medication that can only be prescribed in Australia within a framework of medical, social, and psychological treatment, for opioid addiction.[64]
[61] The Direction, cl 8.1.1(1).
[62] Exhibit R1, 343 (23/10/2007); 373 (31/01/2017); 382 (31/08/2018); 392-395; 404; 406; 410-413; 443 (25/05/2020).
[63] Exhibit R2, 1-2.
[64] Department of Health and Aged Care, ‘Buprenorphine + Naloxone’, The Pharmaceutical Benefits Scheme (Web Page) <
The records described above routinely form part of the evidence in Tribunal cases. They are obtained under summons and their probative value is tested during questioning. The Tribunal is not bound by the rules of evidence;[65] and although such records may not have been substantiated in court, there is nothing preventing the Tribunal from considering them within the meaning of ‘other conduct’ at cl 8.1.1(1) of the Direction. Witnesses must be afforded procedural fairness by having the records put to them for response. As Kenny J has noted, however, the Tribunal should treat contemporaneous police and custodial records carefully.[66] Anastassiou J has similarly expressed the need for care about ‘reaching a view that criminal conduct has occurred, absent a prosecution and conviction’.[67]
[65] AAT Act, s 33(1)(c).
[66] CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101, [98]-[100].
[67] QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394, [74], citing Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67, [85] (Edmonds J) and cited by the Full Court on appeal in Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113, [128] (Nicholas J, with whom Moore and Rares JJ agreed).
In circumstances where the Applicant claims the concealed Suboxone strips were sent to him without his knowledge, and in the absence of any evidence that charges or convictions resulted from this seizure, the Tribunal places no weight on this incident report.
The totality of the Applicant’s offending and other misconduct is very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction provides:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Clause 8.1.2(2) of the Direction states that in assessing the risk the non-citizen poses to the Australian community, decision-makers must take into account, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of harm from a repeat of the Applicant’s violent offending is potentially devastating. For example, if he was to again strike a female partner on the head with a broken bottle, or stomp on their head with sufficient force to cause a loss of consciousness, death or serious physical or psychological injury could result. Spraying adhesive remover into a stranger’s face could cause eye damage or other injury. Spitting blood at police[68] could cause the transmission of a serious illness. Driving a vehicle without ever being licenced, or disobeying a one-way-sign, could cause death or serious injury of other road users. Stealing or damaging property can cause financial, material, or psychological harm.
[68] Exhibit R1, 179.
In terms of drug use, custodial records refer to the Applicant starting to smoke cannabis at the age of nine and drinking alcohol by 15 while living in Canada. This record states:[69]
‘He claims he has tried most drugs although became heavily addicted to methamphetamine and ecstasy. Prior to custody Jesse was using both of these drugs daily; eight ball of methamphetamine (per week) and 2-3 ecstasy tablets a day, he would also smoke cannabis daily to relax.
[69] Ibid 426.
Other records refer to him sniffing solvents and using illicit drugs like heroin, ice, and cannabis.[70] At the January 2022 hearing he referred to daily use of ice over a considerable period.[71] In his most recent statement the Applicant refers to addiction since he was a teenager, but claims that ‘at age 40’, he will ‘never need’ drugs again because of a ‘deeper understanding’ of his addiction.
[70] Ibid 258.
[71] Ibid 512 [34].
In terms of insight and rehabilitation, the Tribunal has considered the following:
(a)The Applicant’s claim in his most recent statement that his stepmother is a ‘licenced Therapist and Hypnotherapist’ who has ‘helped [him] understand why [he] became addicted to drugs in the first place’.
(b)References to the Applicant undertaking rehabilitation in 2019 regarding domestic violence, anger and aggression.[72] His participation is noted to have ‘fluctuated’ and one report stated he ‘became frustrated during the risk factors mapping, stating that he did not believe he had any risk factors prior to offending and had no intention of changing his lifestyle’.[73] Other reports note that while he completed these modules, he had ‘limited understanding of the concepts presented’.[74]
(c)The Applicant’s claims about developing skills as an artist and working with leather products, which he hoped to develop into a business.
(d)Custodial records dated 20 February 2020 and 11 March 2020, written by two different staff members, state:[75]
‘Throughout the interview Jessie continued to justify and minimise his current offences (DV). He admitted that similar charges occurred a year and half prior to his arrest although claimed he was not responsible for victims most recent assault, a drug dealer was. Jessie continued to inform CMO he always goes for the ?crazy girls? and this is what gets him into trouble, Jessie commonly passes blame when discussing offences.’
‘Inmate advised that he was not responsible for the offences and that he just picked a "crazy woman". He was not involved in the assault and he continued to place blame onto others. He would not consider his actions as a contributing factor in the offences.’
[72] Ibid 98-102.
[73] Ibid 431.
[74] Ibid 437.
[75] Ibid 438-439.
In terms of recidivism risk, the Tribunal has considered:
(a)A police Facts Sheet prepared for the Applicant’s court appearance on 16 August 2018, where bail was opposed, which stated:
‘It is obvious the accused has a blatant disregard for bail conditions having breached the conditions of an enforceable apprehended violence order no less than 24 hours after being released from custody. Police believe that the accused is a serious risk to the safety of the community and the victims involved in the most recent AVO matters. It is for these reasons police strongly oppose bail for the accused.’
(b)A custodial record dated 18 November 2019 states that the Applicant’s recidivism risk under The Utility of Level of Service Inventory – Revised (LSI-R) methodology[76] was ‘Medium / High’.[77] He was noted to require extensive supports including stable housing, connection to pro-social groups, and counselling. He was also noted to have criminogenic needs requiring supervision and referrals in the following areas:
(i)Alcohol/Drug Problem;
(ii)Attitude / Orientation
(iii)Leisure;
(iv)Emotional / Personal;
(v)Accommodation;
(vi)Financial;
(vii)Companions; and
(viii)Family/Marital.
[76] Don Andrews and James Bonta, The Level of Service Inventory–Revised (Multi-Health Systems Inc. 1995). The LSI-R is an internationally validated actuarial tool used in custodial settings to assess an offender’s recidivism risk and identify their criminogenic needs.
[77] Exhibit R1, 433; 435.
In terms of protective factors:
(a)The Applicant relies on the last four years in custodial settings as providing him with greater insight, a prolonged period of abstinence, and enabling him to sever associations with drug-taking peers. The extent of his insight is somewhat questionable, however, because he still disputes convictions he pleaded guilty to. His claims about remorse also centre predominantly on the adverse effects he and his family have experienced, rather than the multiple victims he harmed. The Applicant continues to try and diminish his culpability. For example, Partner 1’s ankle was purportedly broken because she moved unexpectedly after the Applicant threw a brick at her. Partner 2 was purportedly not assaulted but the Applicant who was instead jokingly rubbing his knuckles on her head.[78] Partner 3’s serious injuries were purportedly inflicted by a drug dealer and not the Applicant.
(b)The Applicant said his strongest sources of prosocial support are his father and stepmother, who live in Western Australia. It emerged during oral evidence that enquiries he made with family members in Canada also disclosed potential sources of practical support if returned.
(c)The Applicant referred to past period of employment, much of which was for cash payments. He currently relies on a letter from his stepbrother about a labouring job available for him in a construction company in Western Australia.[79]
(d)The Applicant relies on stable accommodation with his father and stepmother if released until he can commence work and make his own arrangements. He and his stepmother believe this will be for a short period, whereas his father believes it needs to be for at least six months to ensure the Applicant’s abstinence.
(e)The Applicant referred to the salutary effect of prolonged confinement and risk of permanent removal from Australia, as motivating him to make enduring changes. This includes because of recent reconnection with his children, the birth of a grandchild, and a desire to play a more prominent role in their lives.
[78] Ibid 512.
[79] Ibid 617-618.
The Tribunal is unpersuaded that the protective factors the Applicant invokes persuasively ameliorate his recidivism risk because:
(a)The interests of the Applicant’s daughters and grandchild are based on a relatively recent connection. The Applicant left his children when they were under five and their interests have not previously acted to motivate meaningful change. Reconnection with Ms K in 2013 did not lead to a resumed parental relationship or meaningful changes in the Applicant’s life. His desire to be a better father and grandfather is aspirational at best.
(b)The Court observed in 2018 that the Applicant had shown: ‘no contrition or remorse, no insight and nothing extenuating by way of leniency’. The Applicant’s current expressions of remorse, abstinence, and intention to lead a law-abiding life, repeat comparable but unfulfilled past undertakings. His denial of family violence that he previously pleaded guilty to does him no credit and continues to raise concerns about his insight, contrition, and rehabilitative progress.
(c)Previous employment, either legitimate or ‘cash in hand’ has been ineffective in nudging the Applicant’s life in an abstinent and law-abiding direction.
(d)The Applicant relies on his current period in custodial settings, compared to shorter periods of past confinement, as a contextual difference relevant to his recidivism risk. The Tribunal does not accept this in circumstances where past terms of imprisonment were always followed by relapse and reoffending. Despite the 2007 Warning, which put the Applicant on notice about the dire consequences for his visa status if he kept reoffending, his drug use persisted, and violence worsened.
(e)It is accepted the Applicant has undertaken some offence-specific rehabilitative modules. Less weight is placed on the protective effect of these courses, however, because of his past inability to leverage reform opportunities, and the evidence about his approach to and performance during these 2019 courses.
(f)The Applicant’s stepmother presents as a very supportive figure in the Applicant’s life. She claims to play concurrent roles weekly as a stepmother and therapist, which raises concerns about conflict of interest. Little weight is placed on the latter role. No detail is available about what was undertaken during this ‘Talk Therapy’ over the last 18 months, how it has advanced the Applicant’s rehabilitation, and why it diminishes his recidivism risk. The Tribunal’s concern is only exacerbated by the extract from Ms Peer’s website, which states the method adhered to in Rapid Transformation Therapy ‘is different from other therapy techniques, such as…Talk Therapy’.
(g)The Applicant claims that sobriety in custody and disassociation from drug-taking peers connotes meaningful change. Mr Glenister conceded in closing submissions that the Applicant’s sobriety ‘wavered’ during his first year in detention but submitted there was no evidence he obtained or used illicit substances. The Tribunal has continuing concerns, however, about the Applicant’s evidence that he lied about drug addiction as a ruse to be accepted into the Methadone Program. It is little to the point this was not approved. There is also reference in the medical records to the Applicant engaging in drug-seeking behaviour. Someone who has purportedly abstained from illicit drugs for four or five years as the Applicant claims, and has no urge to take them, would not have conducted themselves in this way.
(h)Any abstinence or positive behaviour by the Applicant while confined, is of relatively short duration when considered in the context of his 20-year history of drug addiction and crime. Any rehabilitative progress, which is at a formative stage at best, has not been tested in the community, where he previously failed to follow through on undertakings. Of particular note is the context of living with an intimate partner, where he has reacted with increasing violence on several past occasions. The Tribunal has little if any confidence in his ability to avoid drug relapse and further reoffending outside of a controlled and supervised custodial setting.
(i)The Tribunal accepts the Applicant’s family members in Australia, particularly his father and stepmother, continue to support him and want the best for him. He has not previously been able to leverage their support, however, to remain abstinent and law-abiding for meaningful periods.
(j)For the reasons previously adduced, the Applicant’s claim about the protective effects of his relationship with Ms Djukich is unpersuasive. This includes because there is no evidence from Ms Djukich, since the January 2022 hearing, about the status of their relationship and her current intentions.
The Tribunal accepts that aspects of the Applicant’s childhood may have been difficult, but this neither excuses nor adequately explain his persistent substance abuse, violence, and crimes. He has significant unmet rehabilitative needs. In accordance with the Direction, however, decisions should not be delayed for rehabilitation to be undertaken.[80]
[80] The Direction, cl 8.1.2(2)(b)(ii).

The most recent formal assessment of the Applicant’s recidivism risk was in November 2019, which is somewhat dated. Having regard for the totality of the evidence, the Applicant’s risk of reoffending is considered to be unacceptably high. He continues to pose a measurable risk of causing physical harm to members of the Australian community. The very serious nature of his offending and other misconduct, coupled with a high risk of recidivism, and the potentially serious harm from any repeat, results in this primary consideration weighing very substantially against revocation.
Family violence committed by the non-citizen
Clause 8.2(1) of the Direction reflects the Australian government’s concerns about conferring on non-citizens who commit acts of family violence the privilege of coming into or staying in Australia. Clause 8.2(2) provides that this consideration is relevant where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
In considering the seriousness of family violence engaged in by a non-citizen, the Direction requires the following factors at cl 8.2(3) to be taken into account where relevant:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
The Applicant stated in his 2019 PCF that he was subject to Apprehended Violence Orders ‘against girlfriends (NSW)’.[81] The evidence also discloses incidents of family violence against three intimate partners as follows:
[81] Exhibit R1, 94.
(a)16 January 2006: This incident involved Partner 1, with whom the Applicant said he engaged in ‘many, many fights’ with[82] as a ‘common feature’ of their relationship.[83] The basis of his conviction for assaulting Partner 1 is summarised as follows:[84]
[82] Ibid 746 [40].
[83] Ibid 747 [20].
[84] Ibid 199.
‘The victim who has a broken foot and was on crutches had walked there to find him after he left her in Fremantle. They argued as to why he left her in Fremantle. Holloway became aggressive and grabbed the victim by her t-shirt and tried to rip it off her. Holloway pushed his victim/defacto and swung her around by the t-shirt, causing her to stagger onto the road where she fell off her crutches and onto the road surface. Holloway then took one of the crutches and hit the victim across her back several times. Two members of the public heard the victim screaming and when they looked out into the street, saw Holloway hitting her with the crutch. They both ran out to assist the victim and forcibly got between the two. A bus driver stopped and picked up the victim and took her around the corner, dropping her at a bus stop on Canning Hwy a short distance away. Police attended and arrested Holloway at the scene.’
(b)In his oral evidence, the Applicant claimed Partner 1 was on crutches because her ankle was broken while they were ‘mucking around’. He explained they were throwing bricks at each other and one brick he threw hit and fractured her ankle.
(c)March 2017: The Applicant was convicted of two counts of Common assault (DV) in March 2017 against Partner 2. He received a sentence of two months’ imprisonment on each count. The Applicant elaborated on this incident at the January 2022 hearing, claiming it only appeared from behind he was punching the victim in the head, but was instead laughing and giving her a ‘noogie’, which is a colloquial expression for jokingly rubbing knuckles on a person’s head.[85] A New South Wales Police Fact Sheet, however, described the conduct on 31 December 2015 and 6 January 2016 that resulted in these convictions as follows:[86]
[85] Ibid 512.
[86] Ibid 277-278.
‘On 31^st of December 2015….The accused and victim were in the rear of the van that Jesse Holloway calls home. An Argument ensued and the accused struck the victim in the nose causing excessive bleeding. The victim bled for multiple hours after this incident. She was forced by the accused not to tell anybody else at the share house. The accused often causes injuries to the victim and forces her to keep quiet by threatening more violence towards her if she reaches out for help.
On the 6th January 2016, the victim became agitated and decided that she did not want to be subjected to the accused constant abuse. She started to stand up for herself when the accused pushed her head against the front seat head rest causing immediate pain to the victims right cheek. She started to cry; the accused placed his finger in the mouth of the victim and started to pull it open he said "Do you want to have a permanent smile?"
The victim bit the accused in an effort to stop him stretching her mouth any further. The accused said "I’ll show you a real bite." The accused held the victim down and bit her right triceps area. This caused significant injury to the victim. The accused kicked the victim out of the vehicle. He hopped out of the car grabbed the victim in a choke hold position and dragged her back into the car. She felt pain as a result of this dragging motion. Six days after the fact she still has an enormous bruise on her arm where she suffered the injury.
On the 12th of January 2015,…the victim made her way onto…to run some errands. The accused stormed out of the house yelling and screaming at the victim. He ran up from behind her and grabbed her in a choke hold from behind. This caused the victim to lose her balance and fall backwards. The accused started to shove the victim back into…Police arrived soon after and were invited into the house by an unknown occupant. The accused and victim walked out of the address into French lane. They were stopped by police and spoken to in relation to the DV allegation.
The victim showed police visible injuries and informed them of offences the accused had committed against her. The accused was placed under arrest and cautioned in relation to the alleged assaults. He stated "I grabbed her and pulled her into the house. I didn’t want her going to the bank on her own."
(d)July 2019: Sentencing remarks dated 3 July 2019 for the Applicant’s most recent family violence against Partner 3 state:[87]
[87] Ibid 39-42.
‘Mr Holloway, today I am sentencing you in relation to reckless wounding and assault occasioning actual bodily harm.
…
The facts that have been agreed in this matter, I am going to briefly read from those so that you understand what I am dealing with.
You were in an intimate relationship for a period with [victim name redacted]. On the afternoon of 6 July you got home from work and you and [the victim] consumed rum and both of you entered into an argument, and during the argument you picked up a cat and some kittens that belonged to [the victim] and threw them across the room, and she said to you, "You've got about two seconds to get the fuck out of here before I stick a knife in you, straight to your jugular", and she did not have a knife. What then happened is you picked up a broken rum bottle and struck [the victim] in the head. The broken end of the bottle has gone into her left eyelid and forehead causing lacerations and immediate pain. She fell to the ground and a large amount of blood came from the cuts.
In relation to the charge of assault occasioning actual bodily harm, you stomped on her head while she was on the ground and yelled, "I'll make you piss, cunt". She then loss consciousness and the next thing she recalled was her friend…, who resided in the main house, coming to her help on the ground and telling you to leave as the police were on their way. [The victim]…received a 3 centimetre laceration to the middle of her forehead and a laceration to her left eyelid. She sustained two black eyes and swelling to her forehead.
She did not go and get medical attention because she feared that if the truth came out about the assault her life would be in danger, and after approximately two days she feared she may have sustained two fractured eye sockets and decided to attend St George Hospital. She told the triage nurse she was unable to recall what had happened to her…and when the staff tried to question her further she left the hospital fearing that if the correct version was disclosed and referred to police for investigation her life would be in danger. Approximately two weeks after the incident a photo was taken showing her injuries, and I have a copy of that photo before me and it is still showing her with her eyes very swollen, bruising and cuts.
[The victim] did not seek any further medical treatment and instead let the injuries heal naturally over a three month period, and during the time her friends bought her heat packs, cold packs, bandages and medication and pain killers as she was too ashamed of her appearance to go out in public. She has had no further contact with you and she has had to move several times due to a constant fear that you would locate her and on 5 May you did locate her at a house… Police were called, attended the location, arrested you for a number of matters. They spoke to [the victim] who declined to tell the police the details of the assault stating, "If I tell you anything he will find me and kill me". The police took out an apprehended violence order in which she was named as the person in need of protection and you were served with the apprehended domestic violence order at Kogarah Court.
You agreed to a final AVO being made on 24 August and when police told [the victim] about it she broke down crying uncontrollably and she removed her mobile phone from her handbag and showed police a photograph of the injuries she sustained from the assault in July 2017. She was pressed further to give a statement about what had happened but declined as she feared for her safety. On 5 September police spoke to her again and encouraged her to give a statement and she provided the police with a statement, and then on 7 November 2018 you were arrested. You were offered the opportunity to participate in a recorded interview and you stated you were involved in an argument with [the victim] and that she picked up a glass bottle, threw a glass bottle at you striking you on the knee and you reacted by picking up and throwing her off her bed and, as a result of throwing her, her head struck the floor or wall and he saw large amounts of blood coming.
When you were shown the photo of [the victim’s] injuries you acknowledged they were injuries your actions had caused. You denied striking her in the head with a broken bottle or stomping on her head whilst she was on the ground, and you now accept that you gave the police the incorrect version of events and that you did strike [the victim] to the head with the broken bottle and that you stomped on her head while she was on the ground. In my view this is a very, very serious matter…The DPP has put together some information which has helped me in making this assessment, and I have also listened to Mr Ashby in coming to that assessment, and I have considered what I have just read and looked at.
In this case the injuries were significant…This was a very serious matter and it involved the use of a weapon following stomping on the face, and in my view the DPP is quite correct when it describes it as cowardly and involving a high degree of violence...
…
In relation to these matters, the reckless wounding involved the actual use of a weapon, which was the broken bottle. You have previous convictions on your record including matters of violence. The offences were committed in the home, and you were also on good behaviour bonds that had been imposed…there is no option today but for me to impose a fulltime custodial sentence.’
A prison record dated 31 July 2019, documenting a case management meeting with the Applicant, refers to him denying the conduct he pleaded guilty to against Partner 3. He claimed, as he did at the current hearing, to have ‘only pleaded guilty as the victim informed him…she would split her victim’s compensation 50/50 with him’.[88]
[88] Ibid 426.
For the reasons previously discussed by the Tribunal in Healey,[89] the Applicant’s offending against these three intimate partners falls within the meaning of family violence. The Tribunal rejects his revisionist claims and prefers the documentary evidence. The repeat nature of the Applicant’s family violence, and its increasing seriousness, is of significant concern. So are his claims at the last hearing that there were other fights with intimate partners that did not lead to charges or convictions.[90]
[89] Healey and Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2021] AATA 4309, [106]-[126]; See also Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115, [124].
[90] Exhibit R1, 746 [40].
This case once again reinforces the devastating pervasiveness of violence against women and girls. Such violence, as is the case here, is all too frequently committed by an intimate male partner. Even one act of family violence can have enduring consequences, and, on these facts, the totality of the Applicant’s violence against women is appalling. It raises serious character concerns, including because of the 13-year gap between the first and last convictions, and the fact that imprisonment for family violence in 2017 did not prevent him committing even more serious family violence against another woman soon after.
The Applicant has limited insight about the adverse effects of his family violence. His revisionist claims about conduct he pleaded guilty to is rejected and points to incomplete rehabilitation. This is so notwithstanding any offence-specific rehabilitation he has undertaken, some of which is accompanied by lukewarm observations about his participation, engagement, and understanding of the course content.
This primary consideration carries very substantial weight against revocation.
Best interests of minor children in Australia affected by the decision
Clause 8.3 of the Direction requires decision-makers to determine, where relevant, whether revocation is in the best interests of any minor children in Australia. This provision applies only if the child is, or would be, under 18 years old at the time when the application is decided. If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent that their interests may differ.
In considering the best interests of the child, the Direction requires the following factors at cl 8.3(4) to be considered where relevant:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
The Applicant referred in his 2019 PCF to a de facto relationship since 2005, which resulted in Ms K being born in May 2005 and Ms J in September 2008.[91] If accurate this means they are currently 14 and 17 (almost 18) years of age. In his most recent statement, the Applicant also invokes the interests of a grandson born to Ms K in July 2022.
[91] Ibid 85.
A prison record dated 31 July 2019 refers to the Applicant having no contact with his children, who ‘live in Western Australia with their mother’.[92] A sentencing assessment dated May 2019 states he ’has limited contact with his two daughters’.[93] Prior to reconnecting with his children while in custody, the Applicant last saw Ms K when she was approximately five and Ms J when she was two.[94] He referred at the January 2022 hearing to taking drugs at that time and ‘going out partying, fighting…’.[95] He has lived predominantly on the east coast of Australia, while his children have lived with their grandmother in a remote part of Western Australia and more recently in Perth. The Applicant stated at the 2020 Tribunal hearing that Ms K, who was then approximately 15 years of age, was living with her boyfriend, Ms J with her grandmother, and he did not want to move them from those living situations if released.[96] The relatively recent suggestion that the children may live with him at some stage after his release is general and aspirational at best.
[92] Ibid 426; 621.
[93] Ibid 321.
[94] Ibid 740 [17].
[95] Ibid 739 [46].
[96] Ibid 530 [1].
There is a brief, unsigned statement from Ms J, taken by Mr Glenister on 1 December 2021, in which the following claims are made:
(a)Ms J was born in September 2008 and was in Year 7 at that time her statement was taken. She has no memory of ever meeting the Applicant in person and said she grew up with her ‘nan’, Ms K, and ‘other siblings’ who she did not name.
(b)The Applicant ‘recently reconnected’ by telephone ‘around Christmas’, following which they speak daily, are ‘building a good relationship and…becoming close’.[97]
(c)Ms J would be ‘really happy’ if the Applicant came back into her life, because it would make her feel like other children who have fathers. She expresses a desire to live with the Applicant if released and states she would be ‘devastated’ if he was removed because they have ‘only started to reconnect’.
[97] Ibid 621.
The Tribunal enquired with Mr Glenister during the hearing about the availability of Ms J to give oral evidence, but she was unavailable.

There is a one-page, unsigned statement in evidence from Ms K, also taken by Mr Glenister on 1 December 2021, which makes the following claims:
(a)Ms K was born in May 2005 and remembers the Applicant looking after them, recalling he was a ‘good dad’. She does not know where he went after he left their family, following which Ms K moved to a remote location in Western Australia to live with her ‘nan’. Although she continued to have a ‘good bond with [her] mum’, they have not lived together since Ms K was eight, ‘because of all the domestic violence between [her] mum and her partner’. Ms K stated it was ‘really hard not having [her] dad around to support [her] after this happened’, and she hopes ‘he is going to be there for [her] when [she] needs him’.
(b)The Applicant reconnected with her in 2021 on social media. She stated: ‘Our bond is building up. Hopefully we get there’. They speak by telephone, during which he helps her ‘mentally and emotionally’. She loves ‘talking to him about what is going on in [her] life’.
(c)Ms K stated she was doing a beauty and hairdressing course at TAFE and ‘would like to spend time with [the Applicant] if he is released into the community’, and perhaps ‘live together’. When asked about any vocational courses at the current hearing, however, she denied this and stated she only thought about enrolling.
(d)If the Applicant is removed from Australia, Ms K would be ‘devastated and heartbroken’ because she wants the ‘opportunity to have a bond’ with him.
(e)Although Ms K could visit the Applicant in Canada, this would only be for limited periods of time, which ‘would not be enough’.
The Tribunal has considered the evidence of these two children at the January 2022 Tribunal hearing, key aspects of which are summarised as follows:[98]
(a)Ms K did not know why her mother took her away from living together with the Applicant. The Applicant previously contacted her by telephone when she was younger, but this did not lead to a resumed relationship. There was a big gap until his next contact in 2021 via social media and they currently keep in contact via ‘Facetime and calls and messaging’.
(b)Ms K’s relationship with the Applicant is ‘good’ and he tells her ‘right from wrong’.
(c)Ms J has no memory of the Applicant while growing up and said he first contacted her around Christmas while she was living with her mother and grandmother.
(d)When asked what her relationship with the Applicant is like, Ms J responded: ‘All right I guess’. She said they communicated by telephone and texts. When asked what they talk about, she replied: ‘Basically just how life’s going and random stuff’.
(e)Ms J would be ‘devastated’ if the Applicant was removed, but if he were allowed to remain, she would be ‘very happy’ and they could ‘travel around and do a lot of things that daughters and dads’ do.
[98] Ibid 803-808.
The Applicant has had little role in his children’s lives since his relationship with their mother ended well over a decade ago. He has lived on the East coast of Australia since and does not know who the children’s legal guardian(s) are. His relationship with them has been characterised by a long period of absence and limited meaningful contact. Others, principally their grandmother, as part of an extended family group in the same home, have been responsible for their care. It remains uncertain, however, whether Ms J, who is currently 14 years of age, still resides there or lives with friends. Since reconnecting with his children via social media relatively recently, the Applicant’s contact with them has been mostly by telephone and text. There is no evidence this could not continue if he was removed, although this would be a lesser alternative to close physical contact.
The Applicant stated in his most recent statement that his children and grandchild visited him in detention. Given these are minor children, however, it remains of concern to the Tribunal there is no evidence from their legal guardian(s) to clarify the extent of any current relationship from their perspective, or what may be possible in future. This includes the claim that the children may live with him. There is no persuasive evidence that the care provided by the children’s grandmother has been deficient in any way and it would appear she has been regarded by authorities in the past as an appropriate carer.
The evidence from the Applicant’s daughters about the relationship that may emerge with the Applicant is general and aspirational. They did not express any knowledge of the arguments and violence that contextualised the Applicant’s relationship with their mother. His past violent conduct and subsequent absence from their lives can only have resulted in adverse consequences, including absence of the emotional, practical, and financial support children should normally expect from their father. Given the Applicant’s continuing violence against subsequent intimate partners, this raises concerns about the children moving in to live with him and a future romantic partner.
The future relationship the Applicant aspires to develop with his children and relies on several factors. This includes abstinence from illicit drugs, remaining law-abiding, earning an income, establishing his own stable accommodation, gaining the approval of the children’s current legal guardians, and developing into a better father. For the reasons discussed earlier the Tribunal is unconvinced about his ability to make such profound changes when regard is had for the course of his life over the last 20 years. The Tribunal notes a past aspiration to reconnect with his children, including briefly when Ms K was younger, did not result in a resumed relationship. The current reconnection with his children is relatively recent and contextualised by the prospect of his removal from Australia. His intentions regarding their future relationship are expressed at a high level of generality and are largely aspirational. An example is the relatively superficial responses he gave about what sort of father figure he wants to be. It is also noteworthy Ms K turns 18 quite soon[99] and Ms J’s current circumstances are somewhat opaque.
[99] The Direction, cl 8.3(4)(b).
The Tribunal accepts that the Applicant’s children want to build on their recent reconnection with the Applicant and develop a closer bond in Australia. The Tribunal accepts Ms K’s poignant evidence about the impact of growing up without a father and wanting a closer relationship with him in future. The Tribunal also accepts that if the Applicant was able to provide more meaningful fatherly support to Ms K, her child would also benefit. If the Applicant was removed to Canada, the Tribunal accepts his children may be distressed and perhaps materially disadvantaged by his removal. The available evidence, however, is that the Applicant’s parents have provided any financial support to date, and there is no evidence this would not continue irrespective of a decision in this matter.
On the limited evidence available, the interests of the Applicant’s children and grandchild cannot be reliably individualised. On balance, the Tribunal finds that revocation is in the children’s best interests, albeit founded on the admittedly speculative basis that he can make the meaningful changes discussed above. On the most generous reading of the evidence, this primary consideration weighs moderately in favour of revocation.
Expectations of the Australian community
Clause 8.4(1) of the Direction provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Clause 8.4(2) of the Direction states that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect the person should not be granted or continue to hold a visa. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
(a) acts of family violence;
(b) …;
(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…;
(d) …;
...
Clause 8.4(3) provides that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. As per cl 8.4(4), this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in a particular case.
Clause 8.4(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court (FCAFC) in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR). Notwithstanding the different pathways in judicial reasoning, the plurality in FYBR held that Expectations of the Australian community is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[100]
[100] FYBRv Minister for Home Affairs (2019) 272 FCR 454, at 471–2 [66] (FYBR) (Charlesworth J), and 476 [91] (Stewart J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[101]
[101] Ibid at 473 [75]–[76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[102]
[102]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 056.
The Applicant’s offending raises serious character concerns within the meaning of cls 8.4(2)(a), (c), and (d) of the Direction. He has egregiously breached the community’s expectation that non-citizens obey Australian laws. Having regard for the norm stipulated at cl 8.4(1) of the Direction and the guidance provided by the principles at cl 5.2 of the Direction, the Australian community would strongly expect he should not hold a visa. This primary consideration weighs very substantially against revocation.
OTHER CONSIDERATIONS
In determining the existence of ‘another reason’ under s 501CA(4) of the Act, the Tribunal must consider the other considerations at cl 9 of the Direction, which is non-exhaustive. This includes for the consequences of a non-revocation decision.[103]
[103] Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, [61].
International non-refoulement obligations
The Applicant did not make non-refoulement claims and none can be discerned from the available evidence. This consideration is not enlivened and carries neutral weight.
Extent of impediments if removed
Clause 9.2(1) of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)        The non-citizen’s age and health;

b)        Whether there are substantial language or cultural barriers; and

c)        Any social, medical and/or economic support available to them in that country.
The Applicant is 40 years of age. He settled permanently in Australia at the age of 15 and has therefore lived here for approximately 25 years. There are no substantial language or cultural barriers discernible from the evidence.
During the January 2022 hearing the Applicant stated he had no diagnosed medical or psychological issues.[104] The Tribunal has considered medical records from the International Health and Medical Services, which provides primary and mental health care services within Australia’s immigration detention network.[105] These disclose that he has previously declined mental health screening, with a file note stating he believes he can ‘work out any mental health issues himself’.[106] The Applicant’s oral evidence during the hearing is that he intends relying on counselling from his stepmother. Notwithstanding the Tribunal’s earlier concerns about this counselling, there is no evidence it could not continue as it does now by telephone, video calls, and perhaps periodic visits to Canada.
[104] Exhibit R1, 536 [27].
[105] Exhibit R2, 3-286.
[106] Ibid 130.
Other records refer to the Applicant having a communicable disease that was ‘treated by end December 2019’, following which he recorded a negative test result.[107] Reference is also made to conditions such as mild asthma since childhood which is ‘stable’ and controlled with an inhaler,[108] insomnia,[109] and an allergy to raw banana and ‘the green bit of tomato’.[110] Another record, albeit from a general practitioner, refers to ‘Atypical angina (disorder)’.[111] A psychiatrist, however, opined that this chest pain with ‘scant documentation of the reasons’, was likely related to anxiety.[112] During oral evidence, the Applicant stated blood tests investigated a potential cause for this chest pain but returned a normal result. Most of the medical records relate to relatively minor complaints such as headache, muscle soreness, dental issues, and requests for over-the-counter analgesia, or nicotine patches.
[107] Ibid 161.
[108] Ibid 114.
[109] Ibid 125.
[110] Ibid 250-251.
[111] Ibid 23.
[112] Ibid 130.
It was previously submitted by Mr Glenister that the Applicant is impeded in establishing himself in Canada to a basic standard of living by virtue of his health and limited financial and social support in Canada. The following submissions were made:
’58. It is well documented throughout the materials that the Applicant has suffered from a wicked addiction to substances, including solvents, cannabis, heroin and methylamphetamine. This health issue could only be exacerbated by the Applicant’s removal from Australia and the loss of his links to his family. It has previously been noted that the Applicant’s substance misuse results in deterioration to his physical and cognitive health.
59. It is reasonably foreseeable that the Applicant could relapse into serious drug misuse were he to be removed to Canada due to the stress, devastation and hopelessness he would feel at being returned to a country where he would be separated from his family, where he had limited social supports and where he has only bad, if not traumatic, childhood memories. Any serious drug misuse would affect the Applicant’s health and impact on his ability to establish himself to a basic standard of living.
(References removed)
The Applicant stated during oral evidence that he will abstain from drugs irrespective of whether he lives in Australia or Canada. He made no mention of traumatic childhood memories as an impediment to return and seems to have had some contact with his biological mother, who he said sent him a parcel containing clothing. Both he and his father also referred in their oral evidence to relatives living in Canada who could provide a measure of practical and emotional support, although it is accepted this would be much less than available in Australia. The Applicant also stated there is no physical, psychological, or medication-related reason impeding his immediate return to labouring work.
The Applicant stated during the January 2022 hearing that his biological mother, her husband, and a brother live in Canada. The following exchange occurred during that hearing regarding whether the Applicant could count on any support:[113]
Tribunal: And you said you’ve got a brother in Canada?
Applicant: Yes, I’ve got a brother…he’s married with two kids, like, they’ve got a family home, so - yeah.
Tribunal: But he could provide you with some support if you needed it?
Applicant: Well, most likely - yeah, because I’m his brother - yeah. I mean that’s not what my aim is, I mean I don’t want that. But I mean - like, he wouldn’t let me go die on the side of the road.
[113] Exhibit R1, 536.
The Applicant has referred to past employment as a plant operator, car detailer, farmhand, cleaner, lawnmower, roof carpenter and in other roles,[114] and thought he could find work if returned to Canada.[115] As summarised earlier, the Applicant also referred at the current hearing to a Canadian nephew who runs a business and can offer him employment, and a paternal uncle who can provide accommodation. The Applicant’s father claimed in oral evidence that he was previously Chief Executive Officer of a company[116] and pledged strong continuing support for the Applicant, including financial support,[117] stating ‘we’re going to make sure that he’s supported’.[118] He also intends visiting the Applicant in Canada, albeit not frequently because of his age. The Tribunal finds that the Applicant can rely on continuing financial, practical, and emotional support from his father if returned.
[114] Ibid 95; 186; 257; 379; 532; 535; 537 [1].
[115] Ibid 537 [7].
[116] Ibid 791 [26].
[117] Ibid 793 [25].
[118] Ibid 795 [45].
There is some tension between the Applicant’s oral claim that he is confident about abstaining from illicit drugs if allowed to remain in Australia, with the contention in the ASFIC that it is ‘reasonably foreseeable [he] could relapse into serious drug misuse [if] removed to Canada’. The Tribunal agrees with the latter claim for the reasons expressed earlier in these reasons. There is a concerning likelihood he will be unable to remain abstinent from illicit drugs if released. This is notwithstanding the absence of any formal diagnosis of a drug disorder and results from protracted polysubstance abuse. This view is only reinforced by his evidence at the current hearing about lying to medical staff in immigration detention when attempting to gain admission into the Methadone Program, and a medical record about drug-seeking behaviour. The consequences of relapse include adverse impacts on the Applicant’s health. There is no evidence, however, that he could not access drug-support services in Canada, as evidenced by documents regarding Canada’s health system and support for those suffering addiction.[119] It is noteworthy, however, that despite past access to drug services in Australia, they have not meaningfully assisted the Applicant. If he did start taking illicit drugs again in either Australia or Canada, this would return his life to an unfortunate path, likely result in further reoffending, and require him to answer for such conduct in the courts. That would undoubtedly be a difficult situation but is ultimately a potential consequence only he can influence – irrespective of where he lives.
[119] Exhibit R2, 289-308.
The Applicant has undertaken some work in Australia and said that he wants to return to immediate fulltime work if released. There is no evidence the skills he possesses are not transferrable in Canada. This again depends on his ability to remain abstinent, which is problematic. There is no evidence, however, that should the Applicant require it, he would not have the same entitlement to income, housing, or other support available to all Canadian citizens who satisfy required prerequisites.
The Applicant has been in contact with his mother and other relatives in Canada, but it is clear his main sources of financial, practical, and emotional support are in Australia. It would be a significant matter for the Applicant to be removed to another country he has little memory of since the age of 15. He has previously referred to the possibility of Ms Djukich joining him in Canada,[120] although this appears unlikely for the reasons she expressed at the January 2022 hearing. The Applicant has also referred to the possibility of his two daughters joining him in Canada,[121] although in the absence of any evidence from the children’s legal guardian, this is speculative at best.
[120] Exhibit R1, 767 [46].
[121] Ibid 768 [5].

During closing submissions, Mr Glenister properly accepted that the Applicant could establish himself in Canada and maintain basic living standards in the context of what is generally available to other Canadian citizens. On balance, however, the Tribunal finds that after living in Australia since the age of 15, the Applicant will be confronted by a period of adaptation and emotional hardship if returned. On balance the Tribunal finds this consideration weighs moderately in favour of revocation.
Impact on victims
Clause 9.3 (1) of the Direction states:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
In the absence of any direct evidence from a victim of the Applicant’s offending, or a family member of a victim, about the impact of a non-revocation decision, this consideration is not enlivened and carries neutral weight.
Links to the Australian community
Clause 9.4 provides that a decision-maker must have regard to cls 9.4.1 to 9.4.2 of the Direction, which includes consideration of the strength, nature, and duration of any ties the non-citizen has to the Australian community and the impact on Australian business interests if the non-citizen is not allowed to remain in Australia. Neither party made submissions about business interests and the evidence does not disclose these are enlivened within the meaning of the Direction. This consideration therefore carries neutral weight.
The strength, nature, and duration of ties to Australia
Clause 9.4.1 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b) 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 lived permanently in Australia since the age of 15 and his circumstances are such that he would be afforded a higher level of tolerance for his crimes by virtue of having lived here since a relatively young age and for most of his life. There is a dearth of evidence about any positive contributions. Less weight accrues to this consideration in circumstances where his offending commenced relatively soon after arrival. He was first convicted on 14 March 2002, which was followed by frequent offending throughout his adulthood. The Tribunal considers that the sheer persistence of his offending and other misconduct has exhausted any tolerance that might have been extended to him.
The Applicant claimed at the January 2022 hearing that he completed a ‘pre-apprenticeship in welding at TAFE’ and had obtained ‘forklift, Bobcat, and excavator licences’.[122] The evidence also refers to ‘long term cash in hand employment’ and periods of Centrelink benefits.[123] In his oral evidence the Applicant stated that most of his work in Australia was undeclared ‘cash in hand’ employment. It is not known if this occurred during periods where he was also receiving income support and no finding about this is made. The Tribunal accepts he has paid some taxes from work in Australia.
[122] Ibid 536 [38]-[46].
[123] Ibid 257; 322; 537 [1].
The Applicant’s closest relationships in Australia are with his father, stepmother, stepsiblings, two daughters, grandson, and possibly Ms Djukich. The evidence discloses there have been substantial periods of time where the Applicant has had no contact or limited contact with close family members while in the thrall of his addictions. There is little evidence of prosocial friendships beyond family members. Contact with family members prior to his current period in custody appears largely centred on needs arising from his addiction and troubles with the law. For example, a sentencing summary in May 2019 stated:
‘Mr Holloway has not maintained contact with his significant other family members during his remand period. His stepmother was unaware of his remand and advised his contact with his family is sporadic and primarily needs based.’[124]
[124] Ibid 321.
In terms of the status of the Applicant’s current relationship with Ms Djukich, this remains unclear in the absence of a more recent statement from her. She was not called as a witness and could not be cross-examined regarding the Applicant’s claims about her intentions. Mr Glenister properly submitted during closing submissions there was at best the ‘outline of a plan’ with Ms Djukich about joining the Applicant in Western Australia. Notwithstanding the Tribunal’s concerns about the currency of Ms Djukich’s evidence, it is accepted that an adverse decision in this matter would likely signal the end of any relationship, which would be upsetting to both. It is not possible to conclude on current evidence, however, that this would be more than an emotional effect.
The Tribunal has considered statements supportive of the Applicant. It is clear the Applicant’s father and stepmother love him, have tried to support him as best they can, and are genuine in their desire to assist him if released. Having regard for the documentary[125] and oral evidence, it is accepted that a non-revocation decision would cause the Applicant’s closest family considerable emotional distress. There is no evidence, however, they could not maintain contact as they have done for many years – by telephone and infrequent visits, albeit this is a much lesser alternative than close contact in Australia.
[125] Ibid 613-625.
Notwithstanding the Tribunal’s concerns about the relatively limited nature of the Applicant’s relationships in Australia, what relationships he has after 25 years living here, and his strongest sources of financial, practical, and emotional support are predominantly here. This consideration weighs substantially in favour of revocation.
Additional considerations
Legal consequences of a decision
The Applicant has referred to the legal consequences of a decision in this matter as a separate consideration under the non-exhaustive list at cl 9(1) of the Direction. It is contended in the ASFIC that:[126]
’69. The legal consequences of affirming the decision under review are (1) that the Applicant will be removed from Australia and (2) the Applicant will never be permitted to return to Australia.
70. …
71.Once the Applicant has left the migration zone, he can technically apply for a visa to return to Australia but is ineligible for essentially all types of visas (certainly any visas that he could reasonably hope to be otherwise eligible for) due to almost all of them having as a condition that the Applicant meet cl 5001 of Sch 5 of the Regulations. Clause 5001(c) requires the Applicant not be a person who has had their visa cancelled under s 501 of the Act and contains no waiver for that requirement.
72.The legal consequences of the Tribunal’s decision reflect the extraordinary nature of the power being exercised and the devastating effect it can have on people’s lives. In the circumstances, it weighs in favour of revocation.
(References removed)
[126] ASFIC, 9-10 [69]-[72].
The Applicant invites the Tribunal to conclude that his removal from Australia and consequent limitation on applying for another visa, weighs in favour of revocation. The Tribunal respectfully disagrees. It is difficult to understand how the visa consequences of criminal and other conduct that necessitate removal of a non-citizen from Australia, can concurrently weigh in favour of revocation. Moreover, the adverse consequences of removal on the Applicant’s life and on those who love and support him, has been considered under other considerations.
This is not a mandatory consideration, and it is the Applicant’s persistent crimes and other misconduct during the last two decades that enlivens statutory provisions and principles in the Act and Direction. This includes that non-citizens who engage in crimes or other serious conduct, ‘should expect to…forfeit the privilege of staying in Australia’, particularly if it ‘raises serious character concerns’.[127] It is also noteworthy that some conduct, including repeat family violence, may be ‘so serious that even strong countervailing considerations may be insufficient to justify not…revoking a mandatory cancellation’. The Tribunal finds that the ‘legal consequences’ of a non-revocation decision carries neutral weight.
[127] The Direction, cl 5.2(2)-(3).
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. The Tribunal sees no reason on current facts to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations than other considerations.
The totality of the Applicant’s offending and other misconduct is very serious. His risk of reoffending is unacceptably high, and he poses a measurable risk of causing physical harm to others. This includes in a family violence context, which has been a repeated feature of his crimes. The totality of his persistent offending and other misconduct is such that the Australian community would strongly expect he should not hold a visa.
On balance and based on the admittedly speculative basis that the Applicant can meaningfully overcome his drug addiction and tendency to commit crimes in future, the best interests of his two children and infant grandchild favour revocation. Notwithstanding the support he can call on from family members in Australia and Canada, he will be confronted by a period of disruption, adaptation and emotional hardship if returned. Moreover, after 25 years living in Australia, he would be separated from his strongest sources of financial, practical, and emotional support in Australia.
Having weighed the relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why cancellation of the Applicant’s visa should be revoked. That is because three of the primary considerations considerably outweigh the combined weight to be given to Best interests of minor children and the other countervailing considerations.
DECISION
It follows that the Tribunal affirms the decision under review.

112. I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the written reasons for the decision of Senior Member A. Nikolic AM CSC

................[sgd]........................................................
Associate
Dated: 17 February 2023

Date of hearing: 6, 7, and 8 February 2023

Advocate for the Applicant:

Solicitors for the Applicant:

Mr William Glenister

William Gerard Lawyers

Advocate for the Respondent:

Solicitors for the Respondent:

Ms Ada Wong

Mills Oakley Lawyers