Hunt and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 2185
•21 October 2025
Hunt and Minister for Immigration and Citizenship (Migration) [2025] ARTA 2185 (21 October 2025)
Applicant:William Roger Hunt
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/4442
Tribunal:General Member K Thornton
Place:Melbourne
Date: 21/10/2025
Decision:The Tribunal affirms the decision under review.
......................[SGD]........................
General Member K Thornton
Catchwords
MIGRATION – Non-revocation decision under s 501CA(4) of the Migration Act 1958 (Cth) – mandatory cancellation of Applicant’s Class TY (subclass 444) Special Category visa – where the Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation – family violence offending – formal warning previously given – escalating offending – decision under review affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)Cases
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, dated 7 June 2024
Statement of Reasons
The Applicant is a 43-year-old citizen of New Zealand. He seeks review of a decision made by the delegate of the Respondent not to revoke the mandatory cancellation of his Class TY (subclass 444) Special Category (Temporary) visa under s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’).
For the following reasons, the Tribunal affirms the decision under review.
RELEVANT LEGISLATION
Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) provides that, for the purposes of this section, a person does not pass the character test if the person has a ‘substantial criminal record’ (as defined by s 501(7)). Section 501(7)(c) provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person. Section 501CA(4) provides that the Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Section 500(1)(ba) provides that an application may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
Pursuant to s 500(6L) of the Act, the Tribunal must decide this application within 84 days of the Applicant being notified of the non-revocation decision in accordance with s 501G(1). Failure to do so results in the reviewable decision being affirmed by operation of law. The 84th day in this matter is 22 October 2025.
DIRECTION 110
Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about: (a) the performance of those functions; or (b) the exercise of those powers. Section 499(2A) provides that a person or body must comply with a direction under s 499(1).
Such a direction has been given under s 499 of the Act, namely Direction 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction 110’). The purpose of Direction 110 is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act.
Principles
Paragraph 5.2 of Direction 110 contains the principles which provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under s 501, or whether to revoke a mandatory cancellation under s 501CA. Those principles are:
(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) The safety of the Australian Community is the highest priority of the Australian Government.
(3) 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.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) 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.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 110 provides that, informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 7 provides guidance in taking the relevant considerations into account. It states:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 contains the primary considerations which are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
Paragraph 9(1) contains the other considerations. That paragraph provides that the other considerations must also be taken into account, where relevant, in accordance with their provisions. The other considerations include (but are not limited to):
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on Australian business interests.
APPLICANT’S PERSONAL BACKGROUND
Arrival into Australia and visa history
The Applicant was born in New Zealand. He first arrived in Australia in 1987 as a 6-year-old, before departing Australia in 1988.[1] The Applicant relocated to Australia permanently on 10 May 1989 as a 7-year-old and has remained in Australia since.[2]
[1] Exhibit R1, 106.
[2] Ibid.
On 1 September 1994, the Applicant was granted a Class TY (subclass 444) Special Category (Temporary) visa.[3] He has held that visa since that time.
[3] Ibid 107.
On 28 March 2024, the Applicant was sentenced at the Toronto Local Court in New South Wales for family violence offending. He was sentenced to an aggregate term of 29 months imprisonment with a non-parole period of 16 months.[4] A Community Correction Order for three years was also imposed. The Applicant appealed the severity of this sentence.
[4] Ibid 52.
On 29 July 2024, the District Court of New South Wales allowed the appeal and re-sentenced the Applicant to an aggregate term of 28 months imprisonment, with a non-parole period of 14 months. The Applicant’s Community Correction Order was also reduced from three years to two years.[5]
[5] Ibid 51.
On 27 August 2024, the Applicant’s visa was mandatorily cancelled under s 501(3A) on the basis that the Applicant had a substantial criminal record within the meaning of s 501(6)(a) of the Act because he had been sentenced to a term of imprisonment of 12 months or more.[6]
[6] Ibid 107-113.
On 20 September 2024, the Applicant made representations through his authorised recipient (Ms TR, the Applicant’s cousin) seeking revocation of the cancellation decision.[7]
[7] Ibid 85-6.
On 29 July 2025, a delegate of the Respondent decided under s 501CA(4) of the Act not to revoke the original cancellation decision (‘the non-revocation decision’).[8]
[8] Ibid 35.
On 30 July 2025, the Applicant was notified of the non-revocation decision via his authorised recipient.[9]
[9] Ibid 23.
On 30 July 2025, the Applicant lodged an application for review of the non-revocation decision with the Tribunal.[10] The application stated that Ms TR was the Applicant’s authorised representative.[11]
[10] Ibid 8-22.
[11] Ibid 14.
TRIBUNAL HEARING
On 9 October 2025, a Tribunal hearing was held by video at the Tribunal’s Melbourne Registry. The Applicant appeared by video from immigration detention and represented himself during the proceedings. The Respondent also appeared by video and was represented by Ms Alexandra O’Grady from MinterEllison.
At the outset of proceedings, the Tribunal explained its role and purpose and explained the hearing process. The Tribunal received into evidence a Hearing Book as Exhibit R1 totalling 225 pages of material.
Prior to giving his evidence, the Tribunal informed the Applicant about his privilege against self-incrimination. The Applicant indicated that he understood this privilege. The Tribunal then asked the Applicant some questions about himself and his family during examination-in-chief. Ms O’Grady then commenced her cross-examination of the Applicant.
Approximately twenty minutes into the cross-examination, the Applicant became verbally abusive to Ms O’Grady and the Tribunal. He then left the hearing room. The Tribunal indicated to Ms O’Grady that it will call a thirty-minute adjournment to allow the Applicant an opportunity to compose himself and rejoin the hearing. The Applicant then re-entered the hearing room and the Tribunal advised the Applicant that it will take a thirty-minute adjournment and resume at 11.30am.
Upon resuming the hearing at that time, the Applicant was present, and the cross-examination continued. At approximately 11.40am, the Applicant again became abusive towards Ms O’Grady and the Tribunal and left the hearing room. The Tribunal indicated to Ms O’Grady that it will stand down for ten minutes and will attempt to contact the Applicant. The Tribunal resumed at 11.50am and advised Ms O’Grady that attempts to contact the Applicant were unsuccessful. The Tribunal further adjourned the hearing until 2.00pm. The Tribunal and the Respondent contacted the Applicant during this adjournment to advise that the hearing would resume at 2.00pm.
At 2.00pm, the Tribunal hearing resumed. The Applicant was not present at this time. An officer from the detention centre was present and advised the Tribunal that the Applicant had been advised of the resumed time and that the Applicant refused to attend. Given those circumstances, the Tribunal determined that it would proceed to hear the application in the Applicant’s absence pursuant to s 81 of the Administrative Review Tribunal Act 2024 (Cth) (‘the ART Act’). That provision allows the Tribunal to proceed with a Tribunal case event in the absence of a party to the proceeding if the Tribunal is satisfied that the party received appropriate notice of the date, time and place of the Tribunal case event.
The Tribunal was satisfied that the Applicant had sufficient notice of the hearing date, time and place. The Applicant attended the hearing pursuant to that notice, but voluntarily left the hearing twice. The Tribunal hearing was stood down for a further adjournment at 2pm to give the Applicant a further opportunity to attend. The Applicant failed to appear at the resumed time. The Tribunal was satisfied that the Applicant had received appropriate notice of the resumption of the matter at 2.00pm and refused to attend. The Tribunal hearing then proceeded in the Applicant’s absence pursuant to s 81 of the ART Act.
The Tribunal asked the Respondent whether it had any further submissions. In response, the Respondent advised it was content to rely on its Statement of Facts, Issues and Contentions (‘SOFIC’) dated 3 September 2025 and made very brief closing remarks about the Applicant’s demeanour during his evidence and his evidence regarding the 2005 family violence offending. The Respondent submitted that the Applicant’s attitude and demeanour to the Tribunal demonstrates a lack of remorse and poor attitude. The Respondent also noted that the Applicant appeared to blame his former partner for the 2005 family offending during his cross-examination. The Respondent submitted that the protection of the Australian community should be given significant weight in this matter, and otherwise relied upon its SOFIC.
Post-hearing correspondence and Directions Hearing
On Friday 10 October 2025 at 7.34pm, the Applicant emailed the Respondent (with a copy to the Tribunal’s Melbourne Registry) the following message:
These documents were given to me on the 9th of October at 7:18pm in the kitchen of unit 3 Mitchell compound ,Documents [sic] that I should have received to be able to read all 225 pages and also to have in my possession months before my day of court I told you and the judge I had not received the document [sic]
On Wednesday 15 October 2025, the Respondent emailed the Tribunal’s Melbourne Registry (with a copy to the Applicant) requesting that a Directions Hearing be held to address the procedural fairness concerns that were raised by the Applicant.
On Thursday 16 October 2025 at 10.00am, a Telephone Directions Hearing was held. The Applicant attended, as did Ms O’Grady on behalf of the Respondent. The Applicant repeated his claim that he did not receive the Tribunal documents until the evening of 9 October 2025. Ms O’Grady informed the Tribunal that she was in possession of a courier receipt indicating the hard copy Hearing Book was received by the Applicant on 8 October 2025 at 11.30am. Ms O’Grady also advised the Tribunal that the materials previously provided by the Respondent during this proceeding were forwarded to the Applicant’s authorised representative being his cousin Ms TR. The Applicant was adamant that he never received any documents until the evening of 9 October.
In the circumstances, the Tribunal granted the Applicant additional time to make further written submissions if he wished. The Tribunal advised the Applicant that any further written submissions were to be received by the Tribunal and provided to the Respondent by no later than 9.00am on Monday 20 October 2025. The Tribunal reminded the Applicant that it must make a decision by the 84th day, which was 22 October 2025. The Applicant was satisfied with this course and the Directions Hearing was ended.
Following the conclusion of the Directions Hearing, the Tribunal emailed the Applicant (with a copy to his authorised representative and the Respondent) confirming the Tribunal’s instructions.
Applicant’s post-hearing submission
The Tribunal received a written submission by email from the Applicant on 19 October 2025 at 6.14pm. The Tribunal also received a written submission by email from his adult daughter Ms TK on 18 October 2025 at 11.15am. The content of Ms TK’s email is similar to the already existing letter of support from her as contained in the Hearing Book.[12] The Tribunal has had regard to these email submissions.
[12] Ibid 103.
In his written submission, the Applicant submitted that his visa be granted on the grounds of his strong family connections and serious compassionate circumstances. He said he is a father of two children, and he plays an essential role in their emotional, cultural and general upbringing. He views his connection with his family as an obligation and sacred bond. He also described his mother’s cancer battle and stated that his presence would support her through this difficult period. The Applicant accepts that he has made mistakes, and that his actions were wrong and unacceptable under Australian law, and he takes complete responsibility for them. He understands that his behaviour caused harm to others and to the community as a whole. He said he has attended counselling and anger management programs and has already learned so much about managing his emotions. He stated he is determined to become a law-abiding and contributing member of society. He is committed to demonstrating through his behaviour that he has changed for the better.
EVIDENCE
Documentary evidence
The Tribunal received into evidence a Hearing Book which contained the documents:
(a)G-documents totalling 138 pages;
(b)Letter from Dr Hiren Mandaliya dated 27 August 2025, filed on behalf of the Applicant regarding his mother’s cancer diagnosis;
(c)Respondent’s SOFIC dated 3 September 2025;
(d)Respondent’s Supplementary documents comprising:
(i)Materials produced under summons by Toronto Local Court and Cessnock Local Court; and
(ii)National Plan to End Violence Against Women and Children 2022-2032;
(e)Respondent’s Further Supplementary documents comprising:
(i)Materials produced under summons by New South Wales Police;
(ii)Materials produced under summons by New South Wales Department of Communities and Justice; and
(iii)Further materials produced under summons by Cessnock Local Court.
Oral evidence
As indicated above, the oral evidence given by the Applicant was brief. The Applicant told the Tribunal that he has three younger brothers and one younger sister. He said he arrived in Australia in approximately 1987 or 1988 and has not left Australia since.
He told the Tribunal that he was working in civil construction before he was arrested. He also worked as a concreter for a few years. He said he would still be working in civil construction if it wasn’t for his arrest. He told the Tribunal he didn’t need any formal qualifications or certifications for that role.
The Applicant told the Tribunal he has two children; one who is approximately 20 years old and living with his elderly mother, and another who is approximately seven or eight years old. He said his eldest daughter works as a cleaner and helps his mother. He said that his mother was sick, but he has been told the cancer is now in remission which means his eldest daughter can now re-enter the workforce. He said his youngest child has a separate mother and is ‘part of the reason’ why he is incarcerated. He said he doesn’t know ‘what is going on’ with his youngest child at the moment.
He told the Tribunal he only has a ‘few friends’ including his best friend, Mr Orchard, who wrote a character reference on the Applicant’s behalf. He also told the Tribunal he was involved with the Soul Café. He explained to the Tribunal that the Soul Café is an organisation that assists homeless people in the Newcastle area. He said he used to attend church at the Soul Hub every weekend, but when he resumed living with his former partner, it was difficult to maintain his attendance at church. He said he was involved with the Soul Café for approximately ten years. He also said he was addicted to drugs and alcohol at the time and was using a ‘lot of substances.’ He also said he experienced periods of homelessness and was living out of his car.
The Tribunal asked the Applicant whether he had completed any courses or undertaken any rehabilitation whilst incarcerated. He told the Tribunal he had completed a domestic violence course in prison. He said he has not received any rehabilitation, counselling or attended any treatment programs in immigration detention.
During cross-examination, Ms O’Grady put the Applicant’s criminal history to him. The Applicant stated that since 2012, things had gotten a lot better, and he has ‘hardly offended.’ He said he has done really well to stay out of trouble.
The Applicant agreed that between 2021 and 2024 he had been convicted of driving offences, domestic violence offences and other offences such as behave in an offensive manner. He said he couldn’t recall the 2015 offences that were put to him by the Respondent. He was then asked whether he recalled the dishonestly obtain financial advantage charge for which he was sentenced in October 2020. He said he recalled the offending and said he was a member of the Rebels motorcycle gang at the time. He said he took possession of a motorbike but didn’t make repayments because he had lost his job. He told the Tribunal he was a member of the Rebels for five years and had a few friends and family in the club at that time. He said he left the club in 2018. When asked whether he still has contact with any former members of the club, the Applicant said that his two younger brothers are still members of the club and that he is in contact with them.
He agreed he was sentenced for domestic violence offences in 2005, but said there was no actual assault. He told the Tribunal he served three months imprisonment for breaking an AVO (Apprehended Domestic Violence Order). When the hearing resumed, the Applicant told the Tribunal that his ex-partner had made false allegations against him regarding his child and he ‘lost the plot.’ He said that incident caused him to be incarcerated, and he was angry at the time. He said he doesn’t think he would behave in the same way now. He said he believed he would now go about things the ‘correct, legal way.’ At this point, the Applicant left the hearing room, and the cross-examination ceased.
ISSUES TO BE DETERMINED
Section 501CA(4) provides that the Minister may revoke the original cancellation decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
In regard to s 501CA(4)(a), the Applicant’s authorised recipient made representations in accordance with the invitation in an email to the Department dated 20 September 2024. The delegate was satisfied that the Applicant had made representations within the relevant period and in a manner specified in the Regulations. The Tribunal has had regard to these representations and is satisfied that the Applicant has made representations as specified in s 501CA(4)(a) of the Act.
The Tribunal then needs to consider whether it is satisfied of the remaining two issues, that is, whether the Applicant passes the character test, or that there is another reason why the original decision should be revoked.
Does the Applicant pass the character test?
On 28 March 2024, the Applicant was sentenced at the Toronto Local Court to an aggregate term of imprisonment of 29 months, with a non-parole period of 16 months. He successfully appealed that sentence, and on 29 July 2024, the District Court of New South Wales re-sentenced the Applicant to an aggregate term of 28 months imprisonment with a non-parole period of 14 months.
The Applicant therefore has a ‘substantial criminal record’ according to the definition in s 501(7) of the Act because he has been sentenced to a term of imprisonment of 12 months or more. A person who has a ‘substantial criminal record’ does not pass the character test according to s 501(6)(a) of the Act.
The Tribunal therefore finds that the Applicant does not pass the character test. Accordingly, he cannot rely on s 501CA(4)(b)(i) as a basis to revoke the cancellation decision.
Is there another reason why the cancellation decision should be revoked?
The Tribunal now needs to consider whether there is another reason why the cancellation decision should be revoked under s 501CA(4)(b)(ii) of the Act.
In order to determine this question, the Tribunal is required to undertake an assessment of the representations put forward by the Applicant.[13] The Tribunal is required to read, identify, understand and evaluate the representations and must bring its mind to bear upon the facts stated in them or the arguments and opinions put forward and appreciate who is making them.[14] The weight to be afforded to the representations is a matter for the decision-maker.[15]
[13] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, 589 [22].
[14] Ibid [24].
[15] Ibid.
The Tribunal must apply the terms of Direction 110 in determining whether there is another reason why the cancellation decision should be revoked under s 501CA(4)(b)(ii).[16]
PRIMARY CONSIDERATIONS
[16] Direction 110, 5.1 (4).
Primary consideration one: Protection of the Australian community
Paragraph 8.1 of Direction 110 states:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, 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 Tribunal has had regard to the matters set out at paragraph 8.1(1) of the Direction. The Tribunal has kept in mind that the safety of the Australian community is the highest priority of the Australian Government. The Tribunal has had 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.
The Tribunal has considered the matters raised at paragraph 8.1(2) of Direction 110 below.
The nature and seriousness of the conduct
Paragraph 8.1.1(1) of Direction 110 sets out the factors that decision-makers must have regard to when considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date.
Paragraph 8.1.1(1)(a) provides that 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. They are:
i. violent and/or sexual crimes;
ii. crimes of a violent and/or sexual 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.
Paragraph 8.1.1(1)(b) identifies a non-exhaustive list of crimes or conduct that are considered serious by the Australian Government and the Australian community. They include crimes against vulnerable members of the community.[17]
[17] Ibid 8.1.1(1)(b)(ii).
The Applicant’s offending that led to the mandatory cancellation of his visa
The offending that led to the cancellation of the Applicant’s visa occurred on 28 June 2023 and 1 September 2023.[18] The offending that occurred on 28 June 2023 was described by the Toronto Local Court as follows:
He has pleaded guilty on the day of hearing to a series of charges, the first is a charge of common assault, said to have occurred on his partner on 28 June
2023. That involved them going - and intention for she had he to attend a lunch together. However, he became auctorial in relation to believing she was being unfaithful and began to verbally abuse her. So she returned home from the venue where they had met for lunch. He continued to call her raising this same subject and arguing and abusing her.
At around 5.30 that evening some four and a half hours after she had left him, he turned up. She heard him grab his bags and take them to his car which he had by that stage, placed out the front of the house. In a move she now probably regrets she went to speak to him through the closed security door. The argument became a little heated and he pushed with his open palm through what is described as the hole in the security door, striking her. This caused her to be shocked and jump backwards and she then shut the wooden door and called triple 0 and he left and she told them that the accused somehow had mentioned to her that he was going to hand himself in and on 28 June 2023 he attended the Cessnock Police Station and he was charged and an order was made for her protection… which precluded him from going within fifty metres of any place where she lived or worked.
[18] Exhibit R1, 63-4.
The court also summarised the offending that occurred on 1 September 2023:
On 1 September they were at her home together, together with her son. He was in the lounge room and they were in the garage area. He should not have been there. It appears that both of them had been consuming alcohol in the garage and indeed, she consumed the same amount. I note however he claimed to the police that she had had a lot more to drink down at one of the hotels telling them she was very intoxicated and he had to carry her to his vehicle and he had to help him out when he got her home. He said that she became verbally abusive and lunged at him, causing him to have to push her away however, be that as it may, and there is nothing from the complainant to indicate that, an argument developed, he was again accusing her of being unfaithful. She was sitting in a chair, he approached and placed a hand around her throat and gripped it, pushing her back into the chair. She was struggling to breathe, she was struggling to get out of the grip. She pushed at him, he used his other hand to push her in the face such that it put a bottom tooth through her upper lip. For some reason, she found herself frightened and she commenced to kicking at him and was eventually able to kick him off. She told the police the best estimate was that she struggled for two minutes before she got him off. She did not lose consciousness and after she did, he left the garage and then collected up some of his items and went to the backyard. She did not report the matter immediately but did on 4 September at which stage the bruising could still be seen to the face, neck and chin area and there are photographs of it. The facts refer to it as being extensive, and it is. She also has bruising on her arms consistent with the struggle that she has indicated took place and there are photographs indicating the injury to her tooth. It is a very serious example of domestic violence.
In regard to the 28 June 2023 incident, the Applicant was convicted of common assault (DV) and was sentenced to a Community Correction Order for three years. This Order was reduced to two years on appeal.
In regard to the 1 September 2023 incident, the Applicant was convicted of one charge each of contravene prohibition/restriction in AVO (domestic), assault occasioning actual bodily harm (DV), and intentionally choke etc person without consent (DV). He was sentenced on those offences to an aggregate term of imprisonment of 29 months with a non-parole period of 16 months. This sentence was also reduced on appeal to an aggregate term of imprisonment of 28 months with a non-parole period of 14 months.
The Toronto Local Court described the 1 September 2023 offending as a ‘very serious example of domestic violence.’[19] The Local Court also had regard to a sentencing assessment report in which the Applicant acknowledged his past history of substance abuse. The Court noted that the Applicant told the Corrections Officer that he believes that alcohol caused the incident, together with the victim. The Court noted that there is constant reference to him apportioning blame to the victim. The Court noted that on the Applicant’s own description, the assault has been perpetrated on the victim who was apparently incapacitated at the time due to her level of intoxication. The Court described the offending as ‘very violent’ and is ‘not mitigated by any conduct on her behalf.’[20]
[19] Ibid 64.
[20] Ibid 65.
The District Court also noted the Applicant’s attitude and belief that he was entitled to use violence and that the offending was the complainant’s fault because she was making him angry.[21] The District Court noted that the Applicant’s conduct would have been terrifying for the victim, and that his behaviour was outrageous.[22]
[21] Ibid 56.
[22] Ibid 59.
Tribunal consideration of this conduct
The Tribunal notes that Direction 110 has identified certain types of conduct which are viewed very seriously by the Australian Government and the Australian community.[23] Acts of family violence are amongst that category.[24] ‘Family violence’ is defined in Direction 110 and means ‘violent, threatening or other behaviour that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful.’[25] The definition then lists examples of behaviour that may constitute family violence.[26] Those examples include assault, stalking and repeated derogatory taunts.[27]
[23] Direction 110, 8.1.1(1)(a).
[24] Ibid 8.1.1(1)(a)(iii).
[25] Ibid 4(1).
[26] Ibid.
[27] Ibid.
The Applicant’s conduct that led to the mandatory cancellation of his visa was family violence offending according to that definition. The first incident involved an assault by the Applicant on his former partner by striking her through a hole in the security door. The second incident involved the Applicant choking his former partner and causing injuries to her face. These were two separate incidents of violence committed by the Applicant against his former partner, with the later offending being committed in breach of an AVO.
The Local Court described the Applicant’s offending as a ‘very serious example of domestic violence.’[28] The Tribunal agrees with this assessment. The incident on 1 September 2023 involved the Applicant choking the victim to a point where she was struggling to breathe. The Applicant then used his other hand to push the victim’s face such that it caused the victim’s bottom tooth to push through her upper lip. She was struggling with the Applicant for two minutes before she got him off. The victim didn’t report the matter until 4 September, at which stage bruising could still be seen to the face, neck, chin area, and arms. There was also evidence of injury to her tooth. The 28 June incident involved the Applicant striking the victim through a hole in a closed security door causing her to jump backwards. This was preceded by the Applicant verbally abusing the victim throughout the course of the day.
[28] Exhibit R1, 64.
The Tribunal finds that the Applicant’s family violence conduct is very serious. Both incidents of offending involved an assault, with the second incident causing injuries to the victim which were still visible days later. The Applicant’s conduct can properly be viewed as very serious according to the terms of paragraph 8.1.1(1)(a) of Direction 110.
Other factors listed at 8.1.1(1) of Direction 110
The Tribunal has had regard to the other factors raised in paragraph 8.1.1(1) of Direction 110 as follows.
Paragraph 8.1.1(1)(c): The Applicant has an extensive criminal history spanning most of his adult life in Australia.[29] He has been sentenced on a range of offences including behave in an offensive manner, drug offences, driving offences, and dishonestly obtaining a financial advantage by deception. He has been dealt with by the court for a breach of a previous court order. On 20 July 2005, the Applicant was convicted at the Cessnock Local Court of one charge of assault occasioning actual bodily harm for which he was sentenced to a Community Correction Order.[30] That Order was subsequently breached, and the Applicant was re-sentenced on that charge to four months imprisonment.[31] On 31 May 2024, the Applicant was sentenced at the Cessnock Local Court on one charge of drive vehicle under influence of drugs (1st offence) and was sentenced to a term of imprisonment of five months.[32] The Tribunal has had regard to these court outcomes. Whilst the length of the terms of imprisonment imposed have varied, the Tribunal has taken into account these sentences as reflective of the seriousness of the Applicant’s offending.
[29] Ibid 50-5.
[30] The summary of facts for this charge is not available to the Tribunal.
[31] Exhibit R1, 54.
[32] Ibid 51.
Paragraph 8.1.1(1)(d): The Tribunal has had regard to the impact of the offending on the Applicant’s former partner. The Tribunal has had regard to the remarks of the Local Court which described the extensive injuries his former partner suffered in the 1 September incident. The Court noted that the victim struggled to break free from the Applicant for two minutes.[33] The Tribunal considers that this incident would have had a significant physical and emotional impact on the victim and has taken this into account.
[33] Ibid 64.
Paragraph 8.1.1(1)(e): The Tribunal considers that the Applicant’s offending history has been frequent and has increased in seriousness. The Applicant was sentenced for assault occasioning actual bodily harm in June 2001.[34] He was then sentenced on multiple occasions for a series of offences between 2004 and 2024. He was sentenced on 19 October 2005 for contravening an AVO, and again in November 2005 for two further charges of contravening an AVO and three charges of stalk intimidate with intention to cause physical/mental harm.[35] Those later charges relate to offending against members of his former partner’s family.[36] He was convicted again of further family violence offending on 14 February 2013.[37] Thereafter, the Applicant was sentenced on a range of other offences on 16 December 2015, 15 February 2017, 8 October 2020 and 8 March 2021.[38] He received his longest term of imprisonment in March 2024 when he was sentenced on the index offending for the assault and choking incident. The Tribunal considers that the Applicant’s criminal history demonstrates frequent offending which has increased in seriousness and has led to his lengthy term of imprisonment.
[34] Ibid 54-5.
[35] Ibid 54.
[36] Ibid 221-5.
[37] Ibid 53.
[38] Ibid.
Paragraph 8.1.1(1)(f): The Tribunal has had regard to the cumulative effect of the Applicant’s repeated offending on his victims, the criminal justice system and the community as a whole. The Applicant was sentenced on his assault charge in 2001 when he was 19 years old. He has continued to offend during most of his adult life, resulting in the most recent term of imprisonment in March 2024 when he was 42 years of age. This frequency of offending places a burden on the community, the criminal justice system and of course his victims. The Tribunal considers that the cumulative effect of this repeated offending is significant.
Paragraph 8.1.1(1)(g): There is no evidence that the Applicant has provided false or misleading information to the Department.
Paragraph 8.1.1(1)(h): On 9 July 2013, the Applicant received a formal counselling letter from the Department of Immigration and Citizenship warning that any future criminal convictions could result in consideration of the cancellation of his visa.[39] The letter advised that the consequences of visa cancellation include removal from Australia, and in certain cases, bars on re-entering Australia.[40] The Applicant acknowledged receipt of this written correspondence on 22 July 2013.[41] Thereafter the Applicant continued to re-offend after being made aware about the consequences of further offending on his migration status. He was thereafter convicted on 16 December 2015, 15 February 2017, 8 October 2020, 8 March 2021, and on 28 March 2024. The Tribunal has had regard to the fact that the Applicant continued to reoffend despite being formally warned by the Department that any further criminal convictions could result in the cancellation of his visa.
[39] Ibid 79-80.
[40] Ibid 79.
[41] Ibid 81.
Paragraph 8.1.1(1)(i): This sub-paragraph is not relevant to the Applicant’s circumstances.
In conclusion, the Tribunal considers the Applicant’s family violence conduct as very serious. The Tribunal has had regard to the other factors identified in paragraph 8.1.1 and notes in particular that the Applicant’s offending has been frequent and has increased in seriousness. The Tribunal also notes that the Applicant re-offended despite being formally warned by the Department about the consequences of further offending. In the Tribunal’s view, this demonstrates a disregard of Australian laws and institutions. The Applicant has caused harm to members of the Australian community by his offending and has engaged in conduct which is described as very serious by the Australian Government and the Australian community.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that 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.
The Direction provides that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk it may be repeated may be unacceptable.[42]
[42] Direction 110, 8.1.2(1).
In making an assessment of the risk that may be posed by the non-citizen to the Australian community, decision-makers should have regard to, cumulatively, the following factors:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the non-citizen reoffending; 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 Respondent submits that if the Applicant were to reoffend by committing further domestic violence offences, the nature of the harm that may be caused includes physical harm up to and including the possibility of death, having regard to the fact that the Applicant choked his last victim.[43] It is also submitted that offending of this nature may have ongoing psychological consequences for victims and others as well as broader consequences to the justice and health systems.[44] The Respondent refers to the National Plan to End Violence against Women and Children 2022-2032 which reports that, on average, one woman is killed by an intimate partner every ten days.[45] The Report also states that violence against women and children costs the economy $26 billion each year, with victim-survivors bearing approximately 50% of that cost.[46]
[43] Exhibit R1, 145 [25].
[44] Ibid.
[45] Ibid 145-6 [25] citing the National Plan to End Violence against Women and Children 2022-2032 (National Plan), 170.
[46] Ibid 146 [25] citing the National Plan, 171.
Nature of the harm should the Applicant engage in further criminal or other serious conduct
The Tribunal has had regard to the nature of the harm to individuals and the Australian community should the Applicant engage in further criminal or other serious conduct. The Tribunal considers that the nature of the harm to individuals or the Australian community if the Applicant engaged in further family violence conduct would be significant. Any further family violence offending would likely cause further physical and psychological harm to his victims and have broader consequences to the justice and health systems. The Tribunal considers the conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk it may be repeated is unacceptable.[47]
[47] Direction 110, 8.2.1(1).
Likelihood of the Applicant engaging in further criminal or other serious conduct
In assessing the likelihood of the Applicant engaging in further criminal or other serious conduct, the Tribunal must take into account information and evidence on the Applicant’s risk of re-offending, and evidence of rehabilitation achieved by the time of the Tribunal’s decision.
The Tribunal has before it a Sentencing Assessment Report dated 21 March 2024 which was prepared by Corrective Services New South Wales ahead of the Applicant’s sentencing hearing at the Toronto Local Court on 28 March 2024.[48] The Report stated that his former partner and child are listed as protected persons on an ADVO which has been in force since 11 July 2023.[49] The Report advised that the Applicant has remained in telephone contact with his mother whilst in custody. The Report notes that the Applicant’s mother remains supportive of him and is willing to provide the Applicant with stable accommodation upon his release into the community.[50]
[48] Exhibit R1, 155-60.
[49] Ibid 155.
[50] Ibid 156.
The Report notes that the Applicant’s criminal history depicts a pattern of violent offending which demonstrate entrenched anti-social attitudes. His behaviour demonstrates pro-criminal attitudes regarding the use of violence, aggression and intimidation. The Report notes that the Applicant has placed significant blame for his actions on the victim and his alcohol abuse.[51] The Applicant reported that he was aware that his excessive substance use has led to his impulsive behaviour and offending. He also reported being abstinent from drugs for several years, although recounted a lapse into excessive alcohol use to manage stressors related to issues within his relationship. He acknowledged to the author of the Report the need to address his alcohol issues through appropriate interventions in the community.[52] He also expressed a willingness to abide by the current AVO conditions.[53] The Applicant did not report any prior mental health history but did acknowledge that he has unresolved anger issues and emotional instability.[54]
[51] Ibid.
[52] Ibid 156-7.
[53] Ibid 157.
[54] Ibid.
The Report noted that the Applicant has shown minimal insight into the impact of his actions towards the victim, though did express a willingness to undertake intervention to address his behaviour and alcohol abuse issues.[55] The Report concluded that the Applicant was assessed at a medium risk of re-offending according to the Level of Service Inventory – Revised (LSI-R).[56]
[55] Ibid 157-8.
[56] Ibid 158.
The Tribunal also has before it two Breach of Parole Reports to the NSW Parole Board dated 26 June 2006 and 1 November 2006 from the Probation and Parole Service.[57] Both Reports advise that the Applicant tested positive for cannabis use in tests conducted during March 2006 through to September 2006.[58] The Parole Report dated 23 June 2006 otherwise reported that the Applicant has been reporting as directed since his release and has complied with all other directions. This Parole Report noted that the Applicant has commenced a Relapse Prevention Program on 10 May and a Breaking Barriers (Anger Management) Program on 6 June, both of which he has attended as directed.[59]
[57] Ibid 217-20.
[58] Ibid.
[59] Ibid 217.
The updated Parole Report dated 1 November 2006 noted that the Applicant completed the Relapse Prevention Program and the Breaking Barriers Program. It was reported that he was ‘participating well in groups’ and reporting as directed. The updated Report noted however that he has failed to see a Drug and Alcohol Counsellor as directed, to cease all drug use, and submit to random urinalysis.[60] The recommendation by the Probation and Parole Officer stated that:[61]
Despite receiving a warning from the Authority regarding his drug use and repeated directions to address his cannabis use, Mr Hunt continues to deny that he has a drug problem.
Given that he has failed to abide by the conditions of his Parole order, despite being given numerous opportunities to do so, it is recommended that the authority revoke his Parole order.
[60] Ibid 219.
[61] Ibid 220.
The Unit Leader endorsed this recommendation stating:[62]
This parolee has now been submitting positive urinalysis tests since March 2006. During this period his supervising officer has been persistent in his attempts to assist the parolee address his drug issue. Whilst otherwise overtly compliant with his obligations, Mr Hunt is obviously unwilling to cease his use of illegal drugs. Recommendation supported.
[62] Ibid.
In his written statement to the Department, the Applicant reported that he has participated in programs for addiction and domestic violence whilst in prison and has also been enrolled and participated in the Buvidal program which he reported greatly assisted him in managing his addictions.[63] He also explains in detail the difficulties he encountered in his childhood which was marred by family violence and instability.[64] He recalled being taken to Australia at a young age by his father, unbeknownst to his mother.[65] He also recalled being subject to abuse at school which compounded the psychological abuse he was enduring at home at the hands of his father.[66] He recalled that in the years leading up to his incarceration he was assisted by a Pastor who would attend his family home and helped him work through family problems. He also described the assistance he received from the Soul Café which helped to expand his support network.[67] He described being motivated to help his mother who has been unwell over the past few years and to make up for the times he failed her.[68] He stated he would be happy to undergo any further psychiatric assessment and would welcome any further counselling or programs.[69] The Tribunal has had regard to a letter of support from the Soul Café dated 25 August 2024 which reported that they consider that with the right supports, the Applicant will become an upstanding citizen, and that they will continue to support him in the future to make better choices and achieve his goals.[70] The Applicant also gave evidence to the Tribunal that he has participated in a domestic violence program in prison. The Tribunal accepts that the Applicant has participated in programs in prison, but unfortunately there is no information before the Tribunal as to what the Applicant learnt during these programs and how they were of benefit to him. The Tribunal does not have information before it of the content and duration of these courses. The evidence of rehabilitation that the Applicant has achieved is limited.
[63] Ibid 92.
[64] Ibid 87-8.
[65] Ibid 88.
[66] Ibid 89.
[67] Ibid 91.
[68] Ibid 93.
[69] Ibid 94.
[70] Ibid 102.
The Tribunal has considered the information and evidence on the Applicant’s risk of re-offending and the evidence of rehabilitation achieved at the time of the Tribunal’s decision. The Tribunal has had regard to the recent Sentencing Assessment Report which was prepared for the Applicant’s court appearance in the Toronto Local Court. The Report assessed the Applicant as a medium risk of re-offending and noted the barriers that the Applicant faced at the time of his assessment, namely his limited insight and alcohol abuse. The Tribunal also notes that the Applicant has a lengthy criminal history which involves breaches of previous court orders, and lack of compliance with his prior parole conditions. The Tribunal has limited evidence before it on evidence of rehabilitation achieved by the Applicant to date.
The Tribunal considers that there is a likelihood of the Applicant engaging in further criminal or other serious conduct. The Tribunal has drawn this conclusion from the materials referred to above. The most recent Sentencing Assessment Report assessed the Applicant as medium risk. These findings were repeated by the Toronto Local Court, in which the Magistrate remarked that they were unable to make findings of good prospects of rehabilitation or unlikelihood of reoffending.[71] The Tribunal has considered these materials in making its findings. The Tribunal has also had regard to the Australian 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.[72] The Direction states that 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.[73] The Tribunal considers that the harm that would be caused by any future domestic violence conduct by the Applicant would be unacceptable.
[71] Ibid 65.
[72] Direction 110, 8.1.2(1).
[73] Ibid.
Conclusion on primary consideration one
The Tribunal concludes that this primary consideration should be given significant weight in favour of not revoking the mandatory cancellation decision. The Tribunal has decided to give this primary consideration greater weight than the other primary considerations due to the nature and seriousness of the Applicant’s family violence offending and the risk to his victim and the Australian community in general should the Applicant re-offend.[74]
[74] Ibid 7.2(2).
Primary consideration two: Family violence committed by the non-citizen
Paragraph 8.2(1) of Direction 110 states that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Direction states that the Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen. This consideration is relevant in circumstances where the non-citizen has been convicted, found guilty, or had charges proven, that involve family violence.[75]
[75] Ibid 8.2(2).
Paragraph 8.2(3) provides that in considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered, where relevant:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.
This primary consideration is relevant to the Applicant’s circumstances as he has been convicted of offences that involve family violence. The Tribunal notes that the concerns of the Australian Government are proportionate to the seriousness of the family violence engaged in by non-citizen. In considering the seriousness of the family violence, the Tribunal has considered the following factors.
Paragraph 8.2(3)(a): The Tribunal has considered the frequency of the Applicant’s conduct and whether there is any trend of increasing seriousness. The Applicant was first convicted of contravening an AVO on 19 October 2005.[76] He was later convicted on 23 November 2005 on two further charges of contravening an AVO and three charges of stalk intimidate with intent to cause physical/mental harm.[77] For those offences, the Applicant was sentenced to 16 months imprisonment with a four-month non-parole period on each count.[78] The facts of that matter are as follows. On 1 November 2005, the victim in the matter (who is the mother of the Applicant’s former partner) was at home with her 16-year-old son. The Applicant made a threat to shoot the victim then drove off. The next day the Applicant again attended the victim’s address and made a threat to shoot the victim’s de facto and the victim. The Applicant also made a threat to shoot his former partner. A short time afterwards the Applicant and his mother attended the victim’s premises and made a further threat to shoot the victim’s de facto if he called police.[79]
[76] Exhibit R1, 54.
[77] Ibid.
[78] Ibid.
[79] Ibid 222-3.
Thereafter the Applicant was convicted of the following further family violence offences:
·8 November 2011 – one charge of common assault (DV);[80]
·14 February 2013 – one charge of stalk intimidate intend fear of physical/mental harm;
·24 March 2024 – one charge each of contravene prohibition/restriction in AVO (domestic), assault occasioning actual bodily harm (DV), intentionally choke etc person without consent and common assault (DV) (the index offending).
[80] Ibid 53.
On the November 2011 charge, the Applicant was sentenced to a term of imprisonment of 12 months which was fully suspended. This sentence was breached by the Applicant. Upon being sentenced for the February 2013 offending, the Applicant was re-sentenced on the common assault (DV) charge to 12 months imprisonment with a non-parole period of six months.[81] On the stalk intimidate intend fear charge, the Applicant was sentenced to 11 months and seven days imprisonment with a non-parole period of eight months and 12 days. Although the facts that form the basis of these charges are not before the Tribunal, the Tribunal considers that these terms of imprisonment indicate an increasing trend of frequency and seriousness of the Applicant’s offending.
[81] Ibid 53.
The Tribunal does have before it the facts that form the index offending. In the Tribunal’s view, the index offending is a serious example of family violence offending and demonstrates that the Applicant’s conduct has increased in seriousness (from stalking charges in 2005 to assault and choking charges in 2024). It is also noteworthy that there have been multiple victims of the Applicant’s conduct including members of his former partner’s family and his former partner.
168.
I certify that the preceding 167 (one hundred and sixty-seven) paragraphs are a true copy of the reasons for the decision herein of General Member K. Thornton
...............[SGD]...............
Associate
Dated: 21 October 2025
Date of hearing: 9 October 2025 Applicant: In person Advocate for the Respondent: Ms Alexandra O'Grady Solicitors for the Respondent: MinterEllison
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