JDVF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 20

JDVF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 20 (12 January 2022)
Division:GENERAL DIVISION
File Number: 2021/8038
Re:JDVF
APPLICANT

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

DECISION
Tribunal:Senior Member C. J. Furnell
Date:12 January 2022
Place:Melbourne

The Tribunal affirms the decision under review.
..............[SGD]..........................................................
Senior Member C. J. Furnell
Catchwords
MIGRATION – mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa – Migration Act 1958 (Cth) s 501(3A) – New Zealand – Applicant does not pass character test – substantial criminal record – whether there is another reason why mandatory cancellation should be revoked – Direction 90 – primary and other considerations – decision under review affirmed
Legislation
Acts Interpretation Act 1901 (Cth)
Legislation Act 2003 (Cth)
Migration Act 1958 (Cth)
Cases
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
Attorney-General (Qld) v Phineasa [2013] 1 Qd R 305
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
BOY19 v Minister for Immigration and Border Protection [2019] FCA 574
Breeze v R [1999] QCA 303
Briginshaw v Briginshaw (1938) 60 CLR 336
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
Director of Public Prosecutions v Perry [2016] VSCA 152
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
Hughes v R [2017] HCA 20
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Kayo Rerekura and Minister for Home Affairs [2019] AATA 153
Matthews v Minister for Home Affairs [2020] FCAFC 146
MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11
Minister for Home Affairs v Buadromo (2018) 267 FCR 320
Minister for Home Affairs v Sharma [2019] FCA 597
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Minister for Immigration & Multicultural Affairs v Ali (2000) 62 ALD 673
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
PQSM v Minister for Home Affairs [2019] FCA 1540
PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050
R v Galas [2007] VSCA 304
R v Olbrich (1999) 199 CLR 270
Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409
XRXL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 813
Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545
Secondary Materials
Centre of Research Excellence to Promote Safer Families, ‘Better Man’, (Web Page, accessed 23 December 2021) < No 90 — 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
REASONS FOR DECISION
Senior Member C. J. Furnell
12 January 2022

In this proceeding, the issue is whether the decision to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa ought to be revoked. Under the Migration Act 1958 (the Act) the Tribunal can only do this if it is satisfied of either of two things.
For the reasons which follow I am not satisfied of either of those things. Hence, the Tribunal affirms the decision the subject of review.
BACKGROUND
On 1 April 2021, the Applicant was convicted of stealing by clerks and servants and sentenced to a term of imprisonment of 12 months. This represented the fourth occasion on which the Applicant had been sentenced to a term of imprisonment of 12 months or more.[1]
[1] G5, pp.31-4. References to “G” are references to documents provided by the Respondent under s 501G of the Act, known as “G”-Documents.
On 5 May 2021, the Applicant’s visa was subject to mandatory cancellation.[2] The cancellation was mandatory because, under s 501(3A) of the Act:
(a)a delegate of the Minister was satisfied that the Applicant did not pass the character test set out in s 501 of the Act because he had a substantial criminal record,[3] having been sentenced to a term of imprisonment of 12 months or more;[4] and
(b)the Applicant was then serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of an Australian State.
[2] G22, p.94.
[3] As defined in the Act, s 501(7).
[4] Act s 501(7)(c).
The Applicant sought to have the visa cancellation decision revoked, making representations about revocation in response to, and in accordance with, the requisite invitation to do so.[5]
[5] Act, s 501CA(3). See G10, pp.59-62.
As a result, the Respondent became obliged to revoke that decision if satisfied either that the Applicant passed the character test, or that there was another reason why the visa cancellation decision should be revoked.[6]
[6] Act, s 501CA(4).
On 19 October 2021 a delegate of the Respondent decided not to revoke the visa cancellation decision.[7]
[7] G3, p.15.
On 29 October 2021 the Applicant applied to the Tribunal for review of that non-revocation decision.[8] In conducting that review, the Tribunal performs the same function and exercises the same power as the primary decision-maker.[9] As such, in this proceeding, the task for the Tribunal is to decide whether it is satisfied that the Applicant passes the relevant character test, or that there is another reason why the visa cancellation decision should be revoked.[10]
[8] G1, pp.1-6.
[9] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [14], [15] and [51].
[10] I note that, if I were to be so satisfied, the decision would have to be revoked. I would not have any residual discretion to nevertheless refuse revocation: Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338 at [38]; Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [21] but see Derrington J in Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 but cf Katzmann J in the same case at [3]-[6].
The Applicant accepts that he does not pass the character test[11] but submits that there is another reason why the visa cancellation decision should be revoked.
[11] Applicant’s Statement of Facts, Issues and Contentions of 1 December 2021 (A SFIC) at [2(b)].
As is apparent from my decision in this matter, I have rejected that submission.
Material before the Tribunal
In endeavouring to undertake the task entrusted to the Tribunal in this proceeding, I have had regard to the submissions made at and before, and evidence adduced at, the hearing;[12] and to certain documentary material lodged with the Tribunal prior to the hearing.
[12] In terms of submissions made before the hearing, reference is made to the Respondent’s Statement of Facts, Issues and Contentions of 10 December 2021 (R SFIC) and the A SFIC. As for evidence adduced at the hearing, the Tribunal heard from the Applicant and from the Applicant’s partner, called Ms F in these reasons.
That documentary material comprised:
(a)Documents provided by the Respondent under s 501G of the Act (which I refer to as the “G” documents and being Exhibit R1);
(b)Compiled bundle of summons material (which I refer to as the “S” documents and being Exhibit R2);
(c)Letter of 19 October 2021 from [Employer 1] (Exhibit A1)
(d)Letter of 25 October 2021 from [Employer 2] (Exhibit A2)
(e)Letter of 25 October 2021 from [Supervisor] (Exhibit A3)
(f)Letter of 4 November 2021 from [Relative 1] (Exhibit A4).
Aspects of the Factual Context
The Applicant is a citizen of New Zealand, aged 34. He was born in March 1987 in Samoa but moved to New Zealand when he was around three or four months old. He has six siblings, comprising three older sisters, one younger sister and two younger brothers.
The Applicant is in a de facto relationship with an Australian citizen described in these reasons as Ms F, a relationship which commenced in 2012. They have three sons, aged eight, five and three (described in these reasons as Son A, Son B and Son C, respectively).[13]
[13] G11, p.67.
The Applicant’s evidence (which I accept) was to the effect that his upbringing in New Zealand was traumatic, involving (amongst other things) physical abuse from several of his relatives.
The Applicant, an older sister, his younger siblings and his step-uncle moved to Australia in January 1996, joining up with the Applicant’s mother. The Applicant’s father and other older sisters came to Australia later.
The Applicant was aged eight when he arrived in Australia and has lived in Australia ever since, subject to a period of absence when he lived in Samoa between May 2003 and February 2004.[14]
[14] G21, p.93.
The Applicant’s school years were not a time of great success. He was expelled from school at the end of year eight for fighting. He was then awarded a sports scholarship at another school. After injuring his knee while playing sport in year 10, however, he started to use any types of illicit drugs he could get his hands on. According to the Applicant, at this time he was always fighting and partying. This led to his father having him schooled in Samoa for a number of months. After returning to Australia, he went back to school but only to play sport. At the end of the football season, he stopped attending school. As will soon be seen, it was not long before he ended up in prison.
The Applicant has an extensive criminal history.[15]
[15] It is reflected in a 3 June 2021 Australian Criminal Intelligence Commission Check Results Report: see G5. Additional driving offences are reflected in S57 and S58.
The Applicant was convicted of:
(a)On 9 December 2004 and 6 May 2005, “Breach Bail Undertaking” on 27 October 2004 and on 26 April 2005, for which he was fined.
(b)On 30 August 2005, assaults occasioning bodily harm, assaults occasioning bodily harm whilst in company (x2) and assaults occasioning bodily harm whilst armed/in company, for which he was sentenced to terms of imprisonment of two years, three months, and four months respectively, to be suspended for two years after serving four months’ imprisonment.
(c)On 18 January 2006, “Breach of bail condition” on 30 November 2005 and on 17 January 2006, for which he was fined.
(d)On 10 March 2006, wilful damage, for which he was fined and ordered to pay restitution. Apparently, on 25 February 2006, the Applicant smashed a window, sensor light and exit sign with a length of wood.[16]
[16] S27, p.140.
(e)On 22 September 2006:
(i) Assault or obstructing a police officer (x2), for which he was sentenced to one month imprisonment on each charge;
(ii) Robbery with actual violence, armed/in company, for which he was sentenced to four years’ imprisonment;
(iii) Assaults occasioning bodily harm while armed/in company, entering premises with intent and wilful damage and affray, for which he was sentenced to two years’ imprisonment;
(iv) Common assault (x3) and assaults occasioning bodily harm whilst in company, for which he was sentenced to 18 months’ imprisonment;
(v) Robbery with actual violence armed/in company/wounded/used personal violence, for which he was sentenced to three years’ imprisonment;
(vi) Assault of a police officer, for which he was sentenced to one month’s imprisonment; and
(vii) Breach of the suspended sentence imposed on 30 August 2005, for which he was ordered to serve the balance of the term of imprisonment imposed (20 months).
(f)On 5 November 2012, “Never licensed person drive vehicle on road”, for which he was fined.
(g)On 8 April 2013, “Never licensed person drive vehicle on road” and “Driver/rider state false name/address”, for which (amongst other things) he was fined.
(h)On 2 September 2014, “Contravention of domestic violence order”, in respect of which he was ordered to pay a recognisance and placed on a good behaviour bond for 12 months.
(i)On 12 June 2015, “breach condition made on release of motor vehicle”.
(j)On 18 March 2016, “Contravene direction or requirement”.
(k)On 24 March 2021:
(i) Unlawful possession of weapons “Category A, B or M”, for which he was sentenced to four months’ imprisonment;
(ii) Dangerous conduct with a weapon, for which he was sentenced to 15 months imprisonment;
(iii) “Fail to properly dispose of needle and syringe” on 7 September 2020, “Authority required to possess explosives” and “Possess utensils or pipes etc that had been used”, for which he was sentenced to one month’s imprisonment;
(iv) Possessing dangerous drugs on 7 September 2020, for which he was sentenced to two months’ imprisonment;
(v) Possessing dangerous drugs on 19 September 2019, “Possess utensils or pipes etc for use; Possessing anything used in the commission of crime” and “Fail to properly dispose of needle and syringe” on 19 September 2019,[17] for which he was fined.
(vi) Use of controlled drug.
(l)On 1 April 2021, “Stealing by clerks and servants”, for which he was sentenced to 12 months’ imprisonment (suspended for two years after serving two months).
[17] S4, pp.33-4.
I note that where multiple sentences of imprisonment were imposed on the Applicant on any particular day they were to be served concurrently.
In addition to the offending just outlined, the Queensland Department of Transport and Main Roads and Transport for NSW records reveal a large number of motor vehicle offences (especially offences involving unlicensed driving). The Applicant has been convicted of offences of this nature on 1 November 2004, 5 November 2012, 8 April 2013, 29 January 2015, 20 February 2015, 7 May 2015, 12 June 2015, 22 June 2015 and 11 December 2015.[18]
[18] S57 and S58, pp.240-3.
The circumstances of the convictions of 30 August 2005 are identified in a transcript of proceedings on that date before Shanahan J of the Queensland District Court.[19] Amongst other things, on 9 October 2004 the Applicant (aged 17):
(a)Punched a person who was endeavouring to break up a fight;
(b)In the company of others, pursued that person in a car and again assaulted him; and
(c)Grabbed a metal pole and used it to assault that person and another person.
[19] G8, pp.51-5.
The resulting convictions related to what were characterised by His Honour as serious offences of violence.
The effect of his sentence of imprisonment for these convictions being suspended after serving four months was explained to the Applicant (an explanation which he said at the time that he understood). He was told expressly that he may have to serve another 20 months of imprisonment if he was to commit another offence in the two-year period following his release. He was told he had to “stay out of trouble.” The Applicant did not stay out of trouble. As already mentioned, on 22 September 2006 the applicant was ordered to serve the remaining 20 months of the term of imprisonment imposed.
The circumstances of the convictions of 22 September 2006 are identified in a transcript of proceedings on that date before Richards J of the Queensland District Court.[20] Those circumstances appear to have involved several separate events.
[20] G7, pp.41-50.
Roughly four-and-a-half months after the events of 9 October 2004, on 22 February 2005 (still aged 17), the Applicant went to a school, threw a punch at the deputy principal and pushed away a teacher endeavouring to assist another teacher who was being seriously assaulted by a third person.[21] This attracted a sentence of imprisonment of 18 months.
[21] G7, p.42.
Around seven months after his court appearance in August 2005, on 1 April 2006, in the company of several others, the Applicant approached a passer-by and said, “give us your wallet or I’ll slash you”. The Applicant was given $40.[22] This attracted a sentence of imprisonment of three years.
[22] G7, p.44.
On the following day, on 2 April 2006, again in the company of others, the Applicant punched an umpire of a football game. The umpire then barricaded himself in the umpire’s shed with the Applicant endeavouring to get inside by kicking at the shed door. The Applicant proceeded to fight with members of the crowd that had gathered around the shed. According to the Applicant, he left the scene but returned after being told that members of his family were being surrounded by police. While he does not accept that he then resisted arrest or assaulted police, he was convicted of these offences.[23]
[23] S15, p.87. It would seem from the Applicant’s evidence at the hearing of this proceeding that, at least in terms of the assault conviction, the Applicant merely misunderstood the ambit of the concept of assault in that he seemingly accepted that he may have ripped a button from a policeman’s shirt but denied punching the policeman.
Two weeks later, on 16 April 2006 and while on bail, the Applicant robbed a taxi driver of $320 and a mobile phone. During the robbery, the Applicant pressed a knife to the taxi driver’s ribs.[24] For this offence the Applicant was sentenced to a term of imprisonment of four years.
[24] G7, pp.45-6.
Her Honour Judge Richards characterised the relevant offences as very violent and serious.
The Applicant was imprisoned from 30 August 2005 to 30 December 2005, and from 21 April 2006 to “about 2011”[25] or, consistent with his oral evidence, to some time in 2012. At the hearing of this proceeding, the Applicant stated that, while he had been released in 2011, he was soon returned to prison due to a breach of his parole conditions and it was not until 2012 that he was finally released.
[25] A SFIC [10]-[12].
In 2008, while he was in prison, the Applicant was notified that his visa might be cancelled on character grounds. The Applicant then made representations as to why this should not occur.[26] In response, in May 2018 it was decided to not then cancel the Applicant’s visa. The Applicant was, however, then warned, in writing, that visa cancellation may be considered if he were to incur a liability on new grounds; and that disregard of the warning would weigh heavily against him if his case was to be reconsidered.[27]
[26] S128 and S129; pp.355-65.
[27] G9, pp.56-7.
As for the Applicant’s conviction on 1 April 2021, it relates to a theft in 2018 by the Applicant and others from the Applicant’s then employer[28] of mobile phones worth (according to the police brief[29]) around $115,000. In return for his role in the theft, a role which would appear to have been promptly discovered, the Applicant received $11,000.
[28] A SFIC [16].
[29] S6, p.45.
The Applicant was dismissed from his then employment, his house was raided by the police and he was charged. After this occurred, the Applicant’s evidence is that he reverted to illicit drug use, in particular methamphetamine. While the Applicant was able to regain full-time employment after having been unemployed for only a few months, this did not last long.
The circumstances of the convictions of 24 March 2021 are identified in a transcript of proceedings on that date before Magistrate Duroux of the Queensland Magistrates Court.[30] Again, those circumstances appear to have involved several separate events.
[30] G6, pp.35-7.
The drug-related convictions of 24 March 2021 principally relate to events on 19 September 2019 and 7 September 2020. I will not elaborate on these events other than to note that the failure to properly dispose of a needle and syringe offences were indicative of the Applicant then being in the grips of what I characterise as a serious illicit drug habit.[31] Indeed, at the hearing of this proceeding, the Applicant stated that, in 2019, he lost his then full-time job because his addiction was “too heavy”.[32]
[31] At the hearing of this proceeding, the Applicant acknowledged that he was using needles to administer illicit drugs intravenously.
[32] This would appear to have been before August 2019, given the terms Ms F’s statement to the police on 31 July 2019, as outlined later in these reasons.

The weapon-related convictions of 24 March 2021 relate to events on 4 September 2020. Prior to those events, the Applicant had been living separately from Ms F for around a month.[33] The Applicant had been staying at a friend’s house and then, in late August 2020, was treated for cellulitis as a hospital in-patient. Given that he had been using illicit drugs every day until then, this resulted in him “coming down hard”. Despite not completing his treatment for cellulitis, he discharged himself from hospital and went “home” (where Ms F and their children lived) where, he says, he “was able to feed my addiction.”[34]
[33] G13, p.78.
[34] G12, p.75.
What the Applicant meant by this was that on his return home he would be able to contact, and obtain illicit drugs from, certain people, being people of whom Ms F disapproved because they used drugs.
In the result, a couple of days after he returned home from hospital, the Applicant and Ms F argued, and tempers flared. She threw some household products at him, some of which impacted his cellulitis-afflicted leg. The Applicant grabbed a weapon and threatened to shoot Ms F saying words to the effect that, “if you keep going, I am going to shoot you.”[35] The weapon discharged, damaging the upper half of the door to a bedroom ensuite. Ms F did not see the weapon discharge as she had put her head down at the time. She did, however, hear a loud bang, saw smoke and her ears rang. Sons A, B and C were present in the premises where this all occurred (then aged seven, four and two).
[35] This is reflected in Magistrate Duroux’s sentencing remarks and, at the hearing of this proceeding, the Applicant accepted that he had said words along those lines. I accept that the Applicant did, indeed, make a threat along those lines albeit that Ms F suggested that the threat made by the Applicant was simply to shoot the weapon rather than a threat to shoot her.
The Applicant’s evidence before the Tribunal was to the effect that the weapon’s discharge was accidental. According to the Applicant, the weapon was a pipe gun he had been using as a walking stick[36] and which he had picked up from a friend’s house several years earlier. He says he did not know it was loaded and had thought it to be (as a weapon) non-functional, it having, he said, failed to discharge when he had tried to test fire it in the past.
[36] In the Applicant’s closing submission, it was contended that both Ms F’s and the Applicant’s evidence was to the effect that the weapon had been acquired by the Applicant for use as a walking stick. I accept that the evidence was to the effect that it was being used by the Applicant as a walking stick. I do not accept, however, that the evidence was to the effect that it was acquired for that purpose.
Magistrate Duroux, in his sentencing remarks, outlined a distinctly different version of events; one which suggested that the weapon’s discharge was deliberate. In those remarks, the weapon was described as a shotgun which had been recently purchased by the Applicant and which had been stored underneath his bed. Immediately prior to its discharge, the Applicant was said to have picked up the weapon, loaded it and then fired it.
I find that the Applicant deliberately discharged the weapon and, in so doing, accept that it had been recently acquired by the Applicant.[37] More significantly, I accept that the weapon was loaded by the Applicant immediately prior to its discharge on 4 September 2020.
[37] The Applicant contended in closing that the timing of acquisition of the weapon was not particularly informative in characterising the seriousness of the offending.
The burden of persuasion which would need to have been met before I could depart from factual findings made by Magistrate Duroux, of relevance to the sentence imposed on the Applicant has not been met.
Here, the Applicant would have me depart from factual findings which, as I see it, go to the issue of whether the discharge of the weapon was deliberate, an issue likely to have been of relevance to the sentence imposed on him in respect of the relevant offence. While I am able to go behind those findings, given that neither the offence concerned nor the sentence imposed in relation to it constitutes a foundation for the Tribunal’s jurisdiction in this proceeding,[38] before I could do so a heavy burden would need to be met,[39] albeit a burden ameliorated somewhat by the fact that the Applicant pleaded guilty to the relevant offence[40]. That burden has not been met. The sentencing remarks are probative of the facts as found in them.[41] On the other hand, the only evidence in support of the accidental discharge contention is that provided by the Applicant. While I generally found the Applicant (and, indeed, Ms F) to be a credible witness, he having made a number of admissions against interest, as I see it:
(a) The discharge of a weapon is unlikely to have been accidental given that it was preceded by a threat made (and acknowledged by the Applicant to have been made) to, in effect, procure its discharge by shooting it.
(b) The Applicant’s evidence as to how he acquired the weapon (having picked it up from a friend’s house) is inconsistent with Ms F’s evidence, who was “pretty sure” that the Applicant had arranged for someone to drop it off to him.
(c) In written material lodged by the Applicant with the Tribunal, it is not suggested that the discharge of the weapon was accidental. In that material, the Applicant states that he “pulled a firearm and fired it above my partner.”[42]
(d) The Applicant’s recollection of the events (in particular, his recollection of whether he loaded the weapon at the time) might tend to be somewhat self-serving in a context where his memory may have been clouded by a combination of the effects of his withdrawal from illicit drugs and pain from his cellulitis (which, consistent with his descriptions of it, was significant).
[38] Noting that it is the 12-month sentence in respect of the conviction of 1 April 2021 (relating the theft of telephones) that led to the mandatory cancellation of the Applicant’s visa: see HZCP v Minister for Immigration & Border Protection [2019] FCAFC 202 at [77] and the discussion of that case in MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11 at [72]. See also XRXL v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 813 at [17] ad [19] in relation to findings concerning sentences.
[39] HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 per Bromberg J at first instance at [78] cited in Minister for Home Affairs v Sharma [2019] FCA 597 at [20]. See also R v Olbrich (1999) 199 CLR 270 at [01] where it is said that, in passing sentence, “…the judge's conclusions about what the offender did and about the history and other personal circumstances of the offender will be very important.”
[40] Minister for Immigration & Multicultural Affairs v Ali (2000) 62 ALD 673 at [43].
[41] Ibid at [41]. On behalf of the Applicant, it was said that he was the only witness able to give evidence as to whether or not he loaded the weapon (noting that Ms F stated, in effect, she was unable to say whether or not the Applicant loaded the weapon). Accordingly, it was said that I should accept his evidence absent an adverse finding about his credibility. This submission fails, however, to consider the probative nature of the sentencing remarks.
[42] G12, p.75.
Ultimately, in terms of assessing the seriousness of what transpired, which version of the events of 4 September 2020 I accept is unlikely to be of significance. Magistrate Duroux characterised what the Applicant did as being particularly serious behaviour and quite appalling conduct; while the Applicant (presumably, on the basis of his version of events) accepts that the resultant offending was very serious.[43]
[43] A SFIC [17].
The Applicant has been the subject of a number of domestic violence orders in relation to Ms F. The first applied between 19 October 2012 and 18 October 2014 and required that he not commit domestic violence against the “aggrieved” who is described in the order as “unborn”.[44] The unborn was apparently a reference to Son A, while in utero. Moreover, a succession of consecutive domestic violence orders has been in place since 4 September 2020, with an order currently applicable until 26 October 2025 which essentially prohibits contact with Ms F and their sons without Ms F’s written consent and which precludes the Applicant from approaching to within 100 metres of the premises where Ms F lives.[45]
[44] S2, p.9.
[45] G11, p.73; S2, p.5; S43, p.198.
As contended by the Respondent[46] and accepted by the Applicant, Queensland police have attended in relation to a number of incidents involving the Applicant and Ms F. In this regard:
(a)The first incident occurred on 9 October 2012. The “aggrieved” (Ms F) was then three months pregnant. She was said to have been in a relationship with the Applicant which had just ended (albeit in oral evidence the Applicant stated that they had never broken up but had, on occasion, temporarily separated). The incident is said to have involved the Applicant grabbing the aggrieved around the neck[47] or, in his evidence and that of Ms F, pushing Ms F away. It resulted in a protection order being taken out against the Applicant on 19 October 2012.
(b)The second incident occurred on 20 January 2013 and was said to entail a verbal argument between the Applicant and Ms F.[48]
(c)The third incident occurred on 20 December 2013 and was said to have involved the Applicant striking Ms F in the face causing her nose to bleed,[49] albeit at the time he was said to have stated that he had at no stage been violent towards Ms F and, in oral evidence, the Applicant stated that he did not recall hitting Ms F. Ms F was unable to say how her nose was injured. The Applicant was, however, said to have acknowledged that he had anger management problems.
(d)The fourth incident occurred on 10 to 12 July 2014 and involved the Applicant causing property damage, making verbal threats to and punching Ms F’s arm.[50]
(e)The fifth incident occurred on 13 July 2014 and involved the Applicant locking Ms F out of their home.[51]
(f)The sixth incident occurred on 12 July 2015 and involved the Applicant arguing with and threatening to punch Ms F. In notes concerning the incident, the relationship that the Applicant had with Ms F was said to have been a three-year “on and off” one, and the Applicant is said to have stated that the parties had been having issues for some time.[52] As already mentioned, however, the Applicant’s oral evidence was to the effect that he and Ms F had never broken up but had, on occasion, temporarily separated.
(g)The seventh incident occurred on 20 August 2015 and was said to have involved the Applicant and Ms F arguing about the Applicant driving Ms F’s car. The Applicant expressed annoyance about how often Ms F called the police over what he characterised as trivial matters.[53]
(h)The eighth incident occurred on 31 July 2019 and was said to have involved the Applicant denting the family car by repeatedly punching it following an argument with Ms F. She was said to have initiated an argument with the Applicant by suggesting that he did not do enough around the house and simply slept all day.[54] One of their sons was in the car, asleep, at the time.
[46] R SFIC [5].
[47] S52, pp.227-30.
[48] S51, pp.224-6.
[49] S50, pp.220-1.
[50] S49, pp.213-9.
[51] S48, pp.208-12.
[52] S47, pp.206-7.
[53] S46, pp.204-5.
[54] S45, pp.201-3.
At the hearing of this proceeding, both the Applicant’s and Ms F’s evidence was largely corroborative of the descriptions of these various incidents contained in police records.[55]
[55] Normally I would attribute little probative value to material such as the police records on which the relevant descriptions of these various incidents are generally based. While contemporaneous records, police incident reports usually comprise representations that are prejudicial hearsay made by persons not called to give evidence and may properly be characterised as being or giving rise to “inexact proofs, indefinite testimony or indirect inferences.”: Briginshaw v Briginshaw (1938) 60 CLR 336 but cf BOY19 v Minister for Immigration and Border Protection [2019] FCA 574 at [66].
The Applicant has been in prison, remand or detention since September 2020.
As for the Applicant’s employment history, as described by the Applicant, from 2011 to 2014 he worked as a painter, then for a year as a labourer; then, from 2015 to 2019, as a forklift operator (for three successive employers).[56] Ms F stated that the Applicant worked full-time since she was pregnant with their first child.[57]
[56] G11, p.73.
[57] G13, p.77.
In oral evidence, however, it became clear that:
(a)After his release from prison in 2012, and until 2015, the Applicant obtained casual employment (with the person who the Applicant identified as his employer in the 2011 to 2014 period stating that he only employed the Applicant on a casual basis in 2013).[58]
(b)The Applicant obtained full time work in 2015, which, subject to a few months in around 2018 when he was unemployed, he continued to maintain until, probably, mid-2019.[59]
[58] Exhibit A2.
[59] Noting a complaint by Ms F in July 2019 that the Applicant sleeps all day: S45, p.202, albeit that in her oral evidence Ms F characterised that complaint in terms of the Applicant’s behaviour on the day it was made rather than his general behaviour.
According to Ms F, when not employed on a full-time basis, the Applicant did a lot of “cash in hand” jobs, casual work for a variety of employers.
DOES APPLICANT PASS THE CHARACTER TEST?
The Applicant concedes that the Tribunal cannot be satisfied that he passes the character test.[60] Having regard to the factual context just outlined, he was right to do so.
[60] A SFIC 2(b).
The character test is set out in s 501(6) of the Act. Under that section, a person is considered not to pass the test if any of a number of circumstances applies in relation to the person. One such circumstance is when the person has a substantial criminal record.[61] The Applicant has such a record as he has been sentenced to a term of imprisonment of 12 months or more.[62]
[61] Act, s 501(6)(a).
[62] Act, s 501(7)(c).
As I am not satisfied that the Applicant passes the character test, the decision to cancel the Applicant’s visa can only be revoked if I am satisfied that there is another reason why the decision should be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As is clear from my decision in this proceeding, I am not satisfied that there is such a reason.
In arriving at that state of non-satisfaction, I have endeavoured to comply with (and am bound by s 499 of the Act to comply with) an instrument entitled “Direction No 90 — 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” (Direction 90).[63]
[63] Direction 90 imposes requirements that are a precondition for the making of a valid decision: PQSM v Minister for Home Affairs [2019] FCA 1540 at [22] per Colvin J.
Compliance with Direction 90 requires that I consider whether to revoke the decision to cancel the Applicant’s visa “given the specific circumstances of the case.”[64]
[64] Direction 90, cls 5.1(3) and 13(1). Direction 90 provides guidance but it is up to the Tribunal to determine what is relevant in the circumstances of the case: see Matthews v Minister for Home Affairs [2020] FCAFC 146 at [45].
That consideration is to be undertaken informed by,[65] and in the context of a framework comprised of, [66] certain principles.
[65] Direction 90, cl 6.
[66] Direction 90, cl 5.2.
Those principles are set out in cl 5.2 of Direction 90, as follows:
“5.2      Principles
(1)      Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)       Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)       The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable 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 non-citizens 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 non-citizens 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.”
I turn now to the considerations which (to the extent that they are relevant), I am required by Direction 90 to take into account in considering whether to revoke the decision to cancel the Applicant’s visa.[67]
[67] Direction 90, cls 5.2, 5.2(5) and 6.
CONSIDERATIONS – OVERVIEW
The relevant considerations are those set out in clauses 8 and 9 of Direction 90. They are divided into primary considerations and other considerations.
The primary considerations are protection of the Australian community from criminal or other serious conduct; whether the conduct engaged in constituted family violence; the best interests of minor children in Australia; and expectations of the Australian community.[68]
[68] Direction 90, cl 8.
The other considerations include (but are not limited to) international non-refoulement obligations; extent of impediments if removed; impact on victims; and links to the Australian community (including strength, nature and duration of ties to Australia and impact on Australian business interests).[69]
[69] Direction 90, cl 9(1).
The primary considerations are generally to be given greater weight than the other considerations[70] and one or more primary considerations may outweigh other primary considerations.[71]
[70] Direction 90, cl 7(2).
[71] Direction 90, cl 7(3).
While generally primary considerations are afforded more weight than the other considerations, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[72]
[72] Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303 at [32].

In taking considerations into account, “appropriate weight” is to be given to information and evidence from independent and authoritative sources.[73]
[73] Direction 90, cl 7(1).
Before delving into each of the relevant considerations referred to in Direction 90, I digress simply to note that the Applicant submits that the decision to cancel his visa ought to be revoked when regard is had to four of those considerations, being (according to the Applicant):
(a)his limited risk of re-offending;
(b)the best interests of his three Australian citizen sons;
(c)the impediments he would face on his removal to New Zealand; and
(d)the duration and strength of his ties to Australia.[74]
PROTECTION OF THE AUSTRALIAN COMMUNITY[75]
[74] A SFIC [5].
[75] Direction 90, cl 8.1.
I turn now to the first of the primary considerations, the protection of the Australian community from criminal or other serious conduct.
This consideration is one that requires that the Australian Government’s commitment to the protection of the Australian community from harm as a result of such conduct by non-citizens be kept in mind, with particular regard being required to be had to the first of the framework principles previously identified (i.e. the principle about how there is a particular expectation engendered when conferring on non-citizens the privilege of entering and remaining in Australia).[76]
[76] Direction 90, cl 8.1(1).
Taking this primary consideration into account requires that regard be had to two subsidiary considerations. They are, in the circumstances, the nature and seriousness of the Applicant’s conduct to date, and the risk to the Australian community should he commit further offences or engage in other serious conduct.[77]
Nature and seriousness of conduct[78]
[77] Direction 90, cl 8.1(2).
[78] Direction 90, cl 8.1.1.
In considering the nature and seriousness of the Applicant’s offending and conduct to date I am required by Direction 90 to have regard to certain, specific factors. [79] Before doing so, however, I note that:
(a)In discussing the factual context, the nature of that offending and conduct has been outlined.
(b)the Applicant concedes that his history of offending is very serious.[80] Consistent with the views of the Australian Government and the Australian community as identified in Direction 90, he was right to do so.
[79] Direction 90, cl 8.1.1(1).
[80] A SFIC [26] and also reflected in the Applicant’s closing submission at the hearing of this proceeding.
I turn now to the specific factors to which Direction 90 requires that I have regard.
Without limiting the range of conduct that may be considered very serious, the Australian Government and the Australian community view as very serious certain crimes and conduct, including violent crimes, crimes of a violent nature against women and acts of family violence[81]
[81] Direction 90, cl 8.1.1(1)(a).
As just mentioned, I consider the Applicant’s conduct as reflected in his offending to have been very serious. It involved violent crimes (noting the Applicant’s contention that he has pleaded guilty to ten offences involving actual or threatened violence[82]), a crime of a violent nature against a woman, Ms F (being the dangerous conduct with a weapon crime of which the Applicant was convicted on 24 March 2021), and acts of family violence (which occurred in the context of several of the incidents which involved the attendance of Queensland police).
Without limiting the range of conduct that may be considered serious, the Australian government and the Australian community consider to be serious certain crimes and conduct, including crimes committed against government representatives or officials in the performance of their duties[83]
[82] A SFIC [25].
[83] Direction 90, cl 8.1.1(1)(b).
I note that on 22 September 2006 the Applicant was convicted of assaulting a police officer[84] and, in a separate incident, assault of a teacher or teachers.
With the exception of certain crimes and conduct, the sentence imposed by the courts for a crime or crimes[85]
[84] The Applicant contends that he has pled guilty to three offences against police officers in the course of their duties: A SFIC [25].
[85] Direction 90, cl 8.1.1(1)(c).
The Applicant has been sentenced to a term of imprisonment on multiple occasions. On four such occasions, the term of imprisonment imposed was 12 months or more. The Applicant has volunteered that the term of imprisonment imposed on one such occasion was significant (being the four-year term of imprisonment imposed by Richards J in 2006 with respect to the robbery with actual violence conviction).
In this regard, the imposition of any term of imprisonment reflects a view that the offence concerned was serious; “…[c]ustodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s)….”,[86] noting that sentences “…involving terms of imprisonment are the last resort in the sentencing hierarchy…”.[87]
[86] Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409 at [34].
[87] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
Indeed, despite expressly recognising the last resort nature of a sentence of imprisonment, in sentencing the Applicant on 24 March 2021,[88] Magistrate Duroux felt the Applicant’s offending was such as to warrant the imposition of several such sentences.
The frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness[89]
[88] G6, p.38.
[89] Direction 90, cl 8.1.1(1)(d).
While free in the community, the Applicant offended frequently.
From 2004 to 2006, the Applicant engaged in some serious violent offending, on occasion using a knife. After his release from prison in 2012, his offending, while serious, was by and large less serious (comprising driving and non-trafficking drug offences). In 2018, however, he was involved in a significant theft; and, in 2020, a family violence incident in the course of which he used a firearm.
The Applicant contends that there is no trend of increasing seriousness thereby revealed. It is said, rightly, that the Applicant’s initial offending was very serious, involving violent crime for which he was sentenced to a lengthy term of imprisonment. On release from prison, so the argument runs, the Applicant’s offending was less serious, with the exception of the offence involving the use of a firearm – an offence which entailed reckless, but not deliberate, conduct of the Applicant.
I do not accept this contention. The theft in 2018 was, as I have said, significant. Moreover, as previously outlined, I have not accepted that the discharge of the weapon on 4 September 2020 was accidental. However, I also do not accept the Respondent’s contention that the use of a firearm in the Applicant’s most recent offending reflects an increase in the level of seriousness of his offending.[90] While the Applicant’s use of a firearm was very serious, so too was his early offending, noting, as the Applicant contends, that the harshest sentence imposed on the Applicant related to conduct in 2006.
[90] R SFIC [27].
In the result, while the Applicant’s offending has at times been very serious, there has been no overall trend of increasing seriousness when assessed from the commencement of his offending (as opposed to an assessment commencing from the Applicant’s release from prison in 2012).
The cumulative effect of repeated offending[91]
[91] Direction 90, cl 8.1.1(1)(e).
The Applicant accepts that the cumulative effect of his offending has been significant physical, emotional and financial harm.
Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending[92]
[92] Direction 90, cl 8.1.1(1)(f).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
Whether the non-citizen has re-offended 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)[93]
[93] Direction 90, cl 8.1.1(1)(g).
The Applicant states that he now wants to be given a second chance.[94] It is, however, clear that he was given such a chance in 2008; one he ultimately failed to take advantage of.
[94] G12, p.76.
In this regard, by letter dated 21 May 2008, the Applicant was warned, in writing, that cancellation of his visa may be considered if he were to incur a liability on new grounds and that disregard of the warning would weigh heavily against him if his case were to be reconsidered.[95]
Risk to the Australian community should Applicant commit further offences or engage in other serious conduct[96]
[95] G9, pp.56-7.
[96] Direction 90, cl 8.1.2.
I turn now to the second matter to which consideration must be given in the context of the protection of the Australian community primary consideration; the risk to the community should the Applicant commit further offences or engage in other serious conduct.
In considering that risk, I am required by Direction 90 to have regard, cumulatively, to the nature of harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct, and to the likelihood of him doing so (taking into account available information and evidence on the risk of the non-citizen re-offending and evidence of rehabilitation achieved).[97]
[97] Direction 90, cl 8.1.2(2).
As to harm to individuals, based on his history of offending, if the Applicant were to again engage in criminal or other serious conduct, individuals (including Ms F and other persons known and unknown to the Applicant) would be likely to suffer physical harm (through violent conduct), psychological harm (consequent upon the infliction of violence) and financial harm (by way of damage to property and theft).
As to harm to the Australian community, should the Applicant again engage in criminal or other serious conduct, it would reflect the nature of the harm suffered by members of the community harmed by the Applicant’s conduct. Further, it would have the potential to result in the community incurring significant additional law enforcement, incarceration and healthcare costs. Moreover, unlawful violence towards members of the community of the type engaged in by the Applicant in the past engenders concerns about safety, concerns which encourage suspicion and limit social cohesion, thereby harming the community as a whole.
As to the likelihood of the Applicant engaging in further criminal or other serious conduct, on the material before me I am not satisfied that it is unlikely. In this regard, I do not, as the Applicant would have it, accept that his risk of recidivism is low. Instead, I accept the Respondent’s contention that it is a real one, one which I consider to be not insignificant.
As I see it, in order to accept that there is a low risk of recidivism, I would need to be satisfied on the material before me that the Applicant’s efforts in the future to address the demons of his unfortunate early years and his drug addiction will prove more successful than they have in the past. For the reasons soon outlined, I am not so satisfied.
Before delving into those reasons, I note that the mere fact that the Applicant has in the past engaged in certain conduct is not probative of there being a material risk of him doing so again.[98] According to Mortimer J in Splendido[99] a “bare recitation of what a person has done in the past” is an insufficient basis for a finding as to the person’s likely future conduct.
[98] See Kayo Rerekura and Minister for Home Affairs [2019] AATA 153 at [65]: “the mere commission of offences or offending conduct in the past is not, of itself, sufficient.”
[99] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [77] per Mortimer J, Moshinsky J agreeing.
Nevertheless, the past may, in some circumstances, constitute a reliable guide to the future.[100] In order for it to do so, however, more than a mere outline of past conduct needs to be shown if over-valuing personality-based explanations and under-valuing situational based explanations for conduct is to be avoided.[101]
[100] See, for example, Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545 at [26] where the Court was dealing with an applicant who “had an extraordinarily lengthy criminal history which was characterised by relapses into drug use, crime and periods of imprisonment. Although there were some periods of abstinence, Mr Zyambo was prepared to engage in further criminal offending even after warnings that his visa might be revoked were he to do so.”
[101] See Hughes v R [2017] HCA 20 at [70]-[72] per Gageler J.
What that “more” includes is revealed by decisions in cases such as Guo Wei Rong.[102] There it was said that:
“The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.”
[102] Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 (Guo) at 574.
In Splendido,[103] Mortimer J stated that:
“The nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.”
[103] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [78].
In Hughes,[104] the High Court grappled with the application of tendency evidence in the context of an individual charged with sexual offences against minors. In that context, Nettle J (albeit in dissent) stated (at [154]) that:
“Evidence that an accused has committed an offence is not, of itself, significantly probative of the accused having committed another offence …To make evidence of previous offending or misconduct significantly probative of a subsequent offence there needs to be something more about the nature of the offences or the circumstances of the offending in each case, or about the victim of each offence, which rationally affects to some significant degree the assessment of the probability that the accused committed the offence.”
[104] Hughes v R [2017] HCA 20.
Hence, facts need to be identified about the Applicant’s circumstances, or about the nature and circumstances of his past conduct, that rationally support the assessment of the risk of the Applicant engaging in the relevant conduct. I now endeavour to do so.
The Applicant’s history of offending extends over most of his adult life when free in the Australian community. While the seriousness of that offending waxed and waned, its sustained nature is suggestive of an ingrained habit, a habit reinforced by the Applicant’s use of and addiction to illicit drugs after 2018.
Offset against this to some extent, however, are what I see are the Applicant’s good prospects for full-time employment once released into the community. A person fully employed is less likely to offend. Quite apart from its psychological benefits, employment reduces both financial pressures and the time available to transgress. In this regard, the Applicant has been said to have a good work ethic, be a reliable employee[105] and, in terms of the construction industry, be highly skilled.[106] Several of his referees have indicated a preparedness to employ him (albeit their capacity to take on an employee is unclear).[107]
[105] Exhibit A1; Exhibit A2; Exhibit A3.
[106] Exhibit A1
[107] Exhibit A1: [Employer 1] said the Applicant will always have a position in my company. Exhibit A3: [Supervisor] said he would have no hesitation in offering the Applicant a job (albeit it would not appear from the Exhibit that [Supervisor] is an employer). [Acquaintance/Character Referee 1] states that he willing to give the Applicant full-time employment in [Acquaintance/Character Referee 1]’s cafe: G19, p.87.
The ameliorating effect of the Applicant’s good employment prospects on his risk of recidivism is, however, qualified in at least two respects.
First, on the material before me, it would not appear that the Applicant intends to take up any of the employment opportunities to which his referees referred (or, indeed, any other opportunity which involves him acting as an employee). Instead, both the Applicant[108] and Ms F[109] spoke of their intention to start their own business selling clothing for large men. While admirably entrepreneurial, doing so would be likely to subject them to a range of stressors with which they would be unfamiliar, as neither of them would appear to have any retail (let alone clothing retail) experience or experience in running their own business.[110] Rather than ameliorating the Applicant’s recidivism risk, the imposition of additional stressors such as these may exacerbate that risk by, for example, putting pressure on his relationship with Ms F, a relationship which in the past has been marked by incidents of family violence. It would also be unlikely to be conducive to any efforts of the Applicant to avoid illicit drug use, noting that, according to the Applicant, it was stress from being charged with the theft offence in 2018 that led him to again take up illicit drugs after six years of abstinence.[111]
[108] G12, p.76.
[109] G13, p.78.
[110] Ms F is what she describes as a stay-at-home mum.
[111] G12, p.75.
The second qualification concerns illicit drug use. According to the Applicant, the last full-time job he had was one he acquired in 2018 but lost in 2019. While it was a job he enjoyed, the Applicant’s evidence was that he lost the job because he failed too often to arrive at work on time due to his heavy use of illicit drugs. Clearly, the prospects of the Applicant gaining and retaining full-time employment on release into the community would be severely impaired were he to again indulge in illicit drug use.
As for the risk of the Applicant taking up illicit drug use on his release into the community, I am not satisfied that it is insignificant. This is of importance given the connection between his use of drugs and his offending, a connection acknowledged by the Applicant.[112]
[112] A SFIC [30(b)].
The Applicant has been a long-term user of illicit drugs, having started using when he was young,[113] with the result that (according to his oral evidence at the hearing of this proceeding) he had been struggling with drug use “for years”. While his incarceration and detention since September 2020 may have assisted in weaning the Applicant off illicit drugs (albeit noting the absence in the material before me as to the results of any random drug testing), the Applicant’s lengthy incarceration in the past did not stop him from reverting to serious illicit drug use after a period of abstinence.
[113] G12, p.75.
On behalf of the Applicant, however, it is contended that he has taken steps to address and resolve his problem drug use.[114] On the material before me, I am not satisfied that this is the case.
[114] Ibid.
In material lodged on behalf of the Applicant reference is made simply to a plan to sign up to drug therapy.[115] A plan to do something in the future does not resolve an existing problem.
[115] G12, p.76.
At the hearing of this proceeding, in response to a question concerning the absence of random drug testing information, the Applicant suggested that such tests would have been pointless as he was undergoing a drug treatment program. The Applicant said it was not a methadone program but something like it. I was not taken to and was unable to locate in the material before me any other information concerning this program.

Also at the hearing of this proceeding, the Applicant stated that he had, in the month before the hearing, completed a drug and alcohol program while in detention. Again, I was not taken to and was unable to locate in the material before me any details of the program.
Absent any significant information concerning these programs, I am not satisfied that the Applicant’s participation in them will materially mitigate the risk of him reverting to illicit drug use.
I note that Ms F is confident that the Applicant will stay off drugs if released into the community, “with the right support network.” The difficulty here is that there does not, in the material before me, appear to be any material change proposed in the Applicant’s support network relative to that which existed at the time of his offending.[116] As such, it is difficult to see how I can be satisfied that the Applicant’s support network will ameliorate his risk of recidivism to an extent such as to render it unlikely that he would re-offend.
[116] An organisation called Pacca Inc appears prepared to offer support but the nature and extent of any such support is unclear: see G18, pp.84-5.
In the material before me, there are some suggestions that the Applicant suffers from depression and that this may have contributed to his offending in the past.[117] In this regard, at the hearing of this proceeding, the Applicant stated that he takes medication for depression.
[117] G13, p.78: Ms F suggests that on 4 September 2020 the Applicant was suffering from depression. At G12, p.75 there is some suggestion that the Applicant attributed his actions on 4 September 2020 to pain from cellulitis and that the cellulitis had altered his mental state. At the hearing of this proceeding the Applicant denied he was suggesting that cellulitis was a cause of his offending.
There are at least three difficulties with this evidence from the Applicant’s perspective. First, there is no material before me which confirms what, on the material before me, is, essentially, a lay diagnosis (noting that it is not clear whether any medication for depression being taken by the Applicant is prescribed or “over the counter” medication). Secondly, there is no material before me on the basis of which I could be satisfied of a material connection between the Applicant’s offending and depression or another psychiatric condition.[118] Thirdly, there is no material before me concerning the nature and efficacy of any treatment undertaken by the Applicant for his depression or other psychiatric condition. As at May 2021, the Applicant was simply speaking of a long-term “arrangement” to see a psychologist,[119] something which I took to mean that he planned to see a psychologist sometime in the future. Indeed, should I have accepted that the Applicant suffers from a psychological disorder to which his past offending was attributable (at least in part), I would have found his risk of recidivism to have been exacerbated given the absence of material suggestive of him undergoing an efficacious treatment for the disorder.
[118] The Applicant has suggested that he suffered from ADHD and that the abuse he suffered as a child made him violent: G12, p.75.
[119] G12, p.76.
The Applicant has spent no time (or, at least, no significant time) in the community since his most recent offence on 4 September 2020. This is not to say, however, that there is no material before me of relevance to his rehabilitation. Ms F suggested that the Applicant had changed a lot since being incarcerated and doing courses while incarcerated.
As for the effect of incarceration, it was contended on the Applicant’s behalf that his conduct in the six-year period after his release into the community in 2012 demonstrated the positive impact incarceration had on his risk of re-offending. As put by the Respondent, however, this contention paid little regard to the driving offences and domestic violence incidents that occurred in that six-year period and ignored the fact that the Applicant did ultimately again engage in some serious offending despite his earlier incarceration.
As for courses undertaken by the Applicant, mention was made earlier of the Applicant’s evidence concerning his participation in what are likely to have been (and be) drug rehabilitation programs. In addition, in material lodged prior to the hearing of this proceeding, the Applicant said he had enrolled in an online anger management program[120] and that he planned to do an anger management program and to engage in couples therapy with Ms F.[121] Enrolling in something, and planning to do something, about an issue is suggestive of insight. It does not, however, mean that any concerns with respect to the issue have been addressed.
[120] G11, p.72.
[121] G12, p.76.
At the hearing of this proceeding, the Applicant stated that he completed an anger management program in October 2021. I was not, however, taken to, and was unable to locate in the material before me, any information about that program or about the Applicant’s participation in it. As for the online program in which the Applicant had enrolled, the Applicant called it a “better man” program, one in which he participated anonymously. A search conducted after the hearing suggests that the program enrolled in by the Applicant was a pilot program undertaken by the Centre of Research Excellence to promote Safer Families, a program which used a “healthy relationship tool (in the form of a website called BETTER MAN)” to provide men “with awareness and motivation to seek help for their violent behaviour”. Further research was said to be required in relation to the program “to fully test its effectiveness.”[122]
[122] See Centre of Research Excellence to Promote Safer Families, ‘Better Man’, (Web Page, accessed 23 December 2021) <>
In these circumstances, I am not satisfied that the Applicant’s participation in these programs was such as to have a significant positive effect on his risk of recidivism (albeit that his enrolment in the “better man” program does demonstrate some insight into the family violence aspects of his offending). This is all the more so, given that the Applicant’s participation while incarcerated after 2006 in a number of programs broadly directed to his rehabilitation failed to prevent his offending when subsequently free in the community.[123]
[123] S128, p.356: there the Applicant referred to having completed, amongst other things, two ending offending behaviour courses, and an ending family violence course.
According to the Applicant, he will not re-offend as being separated from Ms F and his sons has taught him the value of life. The love he has for his family has made him want to prove to them that “this” (which I take to mean his offending) will never happen again.[124]
[124] G11, p.72.
I do not doubt the Applicant’s sincerity. As I see it, however, his sincerity in this regard is not a basis on which I ought to be satisfied that his risk of recidivism when released into the community is materially ameliorated.
First, the Applicant’s feelings for his family (Ms F and their sons) were not such as to prevent him from his offending in and after 2018, nor from engaging in incidents of domestic violence.
Secondly, while on his behalf it is contended that the prospect of being permanently separated from his children ameliorates the Applicant’s risk of recidivism, I note that the evidence of both Ms F and of the Applicant is to the effect that permanent separation from his children is not a realistic prospect whichever way the decision in these proceedings goes.
Thirdly, similar, no doubt then sincere, expressions of intent were made by the Applicant in 2008 but not ultimately fulfilled. In particular, when then contending that his visa ought not be cancelled the Applicant expressed remorse for his offending (as he has in relation to his more recent offending[125]), pointed to a number of courses he had completed while incarcerated and stated that he had a “new outlook on life,” that with the support of his family he could strive for a better life and that all he needed was an opportunity to make things right and prove to his family that he is not a bad person.[126]
[125] G11, p.72; G12, p.75.
[126] S128, pp.355-6; S129, p.365.
Conclusion
The protection of the Australian community consideration weighs against me being satisfied that there is another reason to revoke the visa cancellation decision.
I attribute significant weight to this consideration despite (as I see it) the Applicant’s offending not being such that “…the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated” is unacceptable.[127]
[127] Direction 90, cl 8.1.2(1).
The attribution of significant weight to the consideration is appropriate given the seriousness of the potential harm to both individuals and the community should the Applicant engage in further criminal or other serious conduct (noting the Government’s view that the community has a low tolerance to the risk of such harm[128]) when coupled with the real, not insignificant, risk of recidivism.
FAMILY VIOLENCE[129]
[128] Direction 90, cl 8.1.2(1).
[129] Direction 90, cl 8.2.
This consideration is of relevance in the circumstances given the Applicant’s conviction on 24 March 2021 of dangerous conduct with a weapon. In the circumstances (as described earlier), the conduct engaged in by the Applicant in committing that offence involved family violence. I note in this regard the Applicant’s contention that he has pleaded guilty to three offences which related to the use or possession of a firearm “in family violence-related conduct”.[130]
[130] A SFIC [25].
The family violence consideration is also of relevance given that there is information from independent and authoritative sources (being the information in the police incident reports described earlier[131]) that the Applicant has been involved in the perpetration of family violence, information largely corroborated by the Applicant and in relation to which he has been afforded procedural fairness.[132]
[131] While, as earlier noted, I generally attribute little probative value to police incident reports this is not to suggest that police are either not authoritative or not independent, especially where information provided by the police is, as here, corroborated.
[132] Direction 90, cl 8.2(2).
The concerns which this consideration engenders in this case are proportionate to the seriousness of the family violence engaged in by the Applicant.[133]
[133] Direction 90, cl 8.2(1).
In assessing the seriousness of that family violence, I am required by Direction 90 to consider, where relevant, certain factors.[134]
Frequency of family violence engaged in by the Applicant's conduct and/or whether there is any trend of increasing seriousness.
[134] Direction 90, cl 8.2(3)(a)-(d).
In the period between 2012 and 2020, incidents of family violence engaged in by the Applicant were frequent. In that period, Ms F called upon the police on nine occasions. On some of those occasions, what had occurred did not appear to involve family violence. On other such occasions, however, family violence was involved. In 2012, Ms F was pushed or grabbed by the throat resulting in the making of a protection order. In 2014, Ms F was threatened and punched in the arm. In 2015, Ms F was threatened. In 2019, in the presence of Ms F, the Applicant repeatedly punched a car occupied by one of his sons. In 2020, the Applicant threatened Ms F and discharged a firearm in her presence.
On the Applicant’s behalf, it was contended that these occurrences of family violence do not reveal a trend of increasing seriousness. The occurrence in 2020 involving the discharge of a firearm was said to be unique and did not comprise part of a pattern of conduct from which a trend could be derived. I disagree. The proposition underlying the Applicant’s contention that a trend can only be ascertained by comparing conduct of a like nature is not one I accept. As I see it, for example, a series of offences involving illicit drugs followed by, say, a murder, would reflect a trend of increasing seriousness. In any event, what we have in this case is conduct of a like nature, in the sense that each relevant occurrence involved family violence, with the specifics of that violence moving in a trend of increasing seriousness from pushes, threats and punches to the use of a firearm.
While the family violence perpetrated by the Applicant did not result in anyone suffering serious physical injury, the trend was of increasing seriousness and the ultimate offending was very serious (involving a firearm).
The cumulative effect of repeated acts of family violence
As for Ms F, she called for the police to intervene between her and the Applicant on around nine occasions in the eight-year period leading up to the Applicant’s incarceration in 2020. Nevertheless, on the material before me, she would not appear currently to be suffering any adverse effect as a result of the Applicant’s repeated acts of family violence, at least directly. She says she does not fear the Applicant[135] and, indeed, in these proceedings, she has been strongly supportive of him.
[135] G13, p.78.
The same cannot be said for the Applicant’s sons. I accept that both the Applicant and Ms F endeavoured to protect their children from the difficulties they had as a couple (for example, by trying to ensure that their arguments were conducted behind closed doors in their bedroom). Inevitably, however, children are affected when family violence occurs in a household they occupy, as Ms F acknowledged. On the material before me, however, I am unable to be satisfied as to the nature and extent of any such adverse effects. Ms F simply stated that when she and the Applicant had issues, it made her sons “sad a little”. While there is some material before me suggestive of Sons A, B and C suffering some particular adverse effects, those are largely said to be a result of separation from their father and the loss of his ongoing support.[136]
Rehabilitation achieved
[136] See, for example, G13, p.77.
Considering rehabilitation in this context also requires a consideration of the extent to which the Applicant accepts responsibility for his family violence-related conduct, the extent to which the Applicant understands the impact of his behaviour on Ms F and witnesses of that abuse (particularly his children), and any efforts to address factors which contributed to his conduct.
I am satisfied that the Applicant accepts responsibility for the family violence he has perpetrated. I do not accept the Respondent’s contention that the failure of the Applicant to refer to any of the eight incidents involving the Queensland police mentioned earlier in these reasons in material lodged on his behalf with the Tribunal prior to the hearing of this proceeding reflects a failure to accept responsibility for his conduct. At no time during the hearing did the Applicant seek to shift or avoid blame for his conduct. For instance, in large measure, the Applicant did not cavil with the police descriptions of his involvement in those eight incidents and, while material lodged with the Tribunal might be seen to suggest otherwise, the Applicant denied that his conduct with the firearm on 4 September 2020 was causally connected to his cellulitis. His acceptance of responsibility reflects an insight into his conduct evidenced by his enrolment in the “better man” program which, as outlined earlier, is one directed to providing men “with awareness and motivation to seek help for their violent behaviour”.
Similarly, I accept that the Applicant understands, at a superficial level, that engaging in family violence impacts adversely not only on Ms F but also on his sons. That understanding is reflected in the Applicant’s and Ms F’s endeavours to protect their sons from difficulties which the Applicant and Ms F had as a couple. I consider that understanding to be superficial, however, given the Applicant’s occasional failures in those endeavours reflected, for example, in his conduct in 2019 in damaging a car occupied by one of his sons and in discharging a firearm in a residence then occupied by his sons.
As for efforts of the Applicant to address factors which contributed to his conduct, I refer to the earlier comments about the Applicant’s rehabilitation in the context of discussing his risk of recidivism and his involvement in the “better man” program.
Whether the applicant 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
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
Conclusion
The family violence consideration weighs against me being satisfied that there is another reason to revoke the visa cancellation decision.
While ameliorated somewhat by the Applicant’s acceptance of responsibility for his conduct, I nevertheless attribute significant weight to this consideration. There are serious family violence concerns in this case given the seriousness of the family violence engaged in by the Applicant. That family violence culminated in a very serious incident (the one that occurred on 4 September 2020), comprised part of a trend of increasing seriousness and would have impacted his sons adversely (an impact of which the Applicant would appear to have had only a superficial understanding).
THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA[137]
[137] Direction 90, cl 8.3.
The third primary consideration which I am required by Direction 90 to take into account is the best interests of minor children in Australia. Indeed, I am required to determine in relation to each relevant child whether revocation of the visa cancellation decision is in his or her best interests.
The children whose best interests the Tribunal was asked to take into account were the Applicant’s and Ms F’s three sons and nephews and nieces of the Applicant.
I mention the nephews and nieces only to discount their significance in the context of this consideration. No mention is made of them in the A SFIC. The number involved is unclear. In material lodged on behalf of the Applicant, seven are initially identified,[138] but then reference is subsequently made to six nephews and 11 nieces.[139] The Applicant claimed that he is often considered their favourite uncle and that he supports them, financially and emotionally.[140] When asked for details of that support, the Applicant indicated that he attended their sporting events and that giving (and, presumably, receiving) financial support to family members was an aspect of his Samoan culture. There was no suggestion that he played or would play a parental role. Apart from an assertion made by the Applicant that his nephews and nieces would be depressed were he to be removed from Australia,[141] there is nothing before me concerning the effect on them that his physical separation from them would have. There was no material in support of the Applicant and, specifically, in support of his contentions concerning the interests of his nephews and nieces provided by their parents (siblings of the Applicant). His parents make no mention of his role as an uncle in their submission in support of the Applicant.[142]
[138] G11, p.69.
[139] G11, p.71.
[140] G11, p.70.
[141] Ibid.
[142] G20, p.88.
Should the Applicant be removed to New Zealand, the resultant loss of an opportunity for his nephews and nieces to build a closer relationship with him may be prejudicial to their interests. In a context where there is already an extended familial base available to them, however, I am not satisfied that that the extent of that prejudice is or would be of any significance. In this regard, it is not submitted (and on the material before me I do not find) that the benefit to the Applicant’s nieces and nephews of his physical proximity would differ materially in nature or extent from that available to them from other family members.

As I see it, serious character concerns are raised through the Applicant’s conduct that resulted in him being convicted on 24 March 2021 of dangerous conduct with a weapon.
First, that conduct involved acts of family violence as well as a crime of a violent nature against a woman. The concept of “violence” is not one that appears to have been the subject of exhaustive definition.[170] Nevertheless, as understood both at common law and in the context of its etymology, it encompasses not only actual physical force but also “threats or menaces to induce fear and terror or to intimidate.”[171] This is consistent with the definition given to the concept of “family violence” in Direction 90 which encompasses, amongst other things, threatening behaviour that coerces or controls a family member or causes a family member to be fearful.[172] Hence, an act of violence includes “…acts of intimidation and menaces.”[173] The conduct now under consideration involved such acts.
[170] R v Butcher [1986] VR 43 at 48.
[171] Ibid at 52; see also Breeze v R [1999] QCA 303 at [19] and R v Galas [2007] VSCA 304 at [31]-[32]. In Attorney-General (Qld) v Phineasa [2013] 1 Qd R 305 at [38] it was suggested that violence, in a particular context, required force significantly greater than mere physical contact but this suggestion was couched so a s to exclude “for present purposes threats and intimidation”.
[172] Direction 90, cl 4(1).
[173] Director of Public Prosecutions v Perry [2016] VSCA 152 at [40].
Secondly, that conduct raised serious character concerns. There is no definition in Direction 90 of what constitutes such a concern. Given this, it would appear to be a concept tied to the character test found in s 501 of the Act. A person does not pass that test if, amongst other things, the person is considered to have a substantial criminal record. A person will have such a record if sentenced to a term of imprisonment of 12 months or more. The conduct now in question attracted a sentence to a term of imprisonment of 15 months. Hence, that conduct was sufficient of itself to result in a failure of the Applicant to pass the character test.
Accordingly, by reason of cl 8.4(2) the Australian community is taken to expect that the Applicant’s visa remain cancelled. Hence, this consideration weighs against revocation of the visa cancellation decision.
That the expectations of the Australian community consideration weighs against revocation of the visa cancellation decision is also reflective of the second community expectation apparent from a construction of cl 8.4 of Direction 90. In particular, in cl 8.4(1), it is said that the Australian community expects non-citizens to obey Australian laws while in Australia and that, 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 them to enter or remain in Australia.[174]
[174] Direction 90 cl 8.4(1).
As I see it, that expectation applies in the circumstances. As such, the Australian community expects the Government to not allow the Applicant to remain in Australia.
The Applicant has engaged in serious conduct in breach of the expectation that he, as a non-citizen, obey Australian laws. The offending of the Applicant involved him engaging in what constitutes serious conduct for the purposes of Direction 90.[175] Indeed, the Australian community is taken to view conduct of the type in which the Applicant engaged as not only serious but very serious.[176] Hence, the question of whether the Australian community is to be taken to expect that the Applicant not be allowed to remain in Australia depends on whether the “norm” is displaced. I do not consider that it is.
[175] Noting that the concept of “serious conduct” is simply defined in Direction 90 inclusively so as to include certain non-criminal conduct: cl 4(2).
[176] Noting that crimes of violence are said to be regarded as very serious by the Australian Government and the Australian community: Direction 90 cl 8.1.1(a).
In order to displace from application in his case the standard expectation of the community, much would be required to distinguish the Applicant’s circumstances from those which might reasonably be expected to be encompassed within the “norm”. While everyone’s circumstances are to an extent unique, I am not satisfied that the Applicant’s circumstances are such as to warrant a conclusion that the community’s normal expectation is inapplicable to him.
Those circumstances may, however, affect the weight to be given to the Australian community expectation consideration.[177]
[177] As was said in FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [101]-[102] in relation to the instrument which Direction 90 replaced, the weight to be attached to this consideration may vary, depending on what is appropriate in “the particular circumstances”.
In support of a submission that the consideration weighs only slightly against revocation, on behalf of the Applicant it is said that:[178]
(a)the Applicant has ordinarily resided in Australia since he was eight years old (i.e., a period of almost 26 years);
(b)the Applicant has incredibly strong familial and social ties to Australia, including through his three Australian citizen children, Australian citizen de facto partner, and Australian citizen parents;
(c)the Applicant has contributed positively to the Australian community by maintaining employment; and
(d)the Applicant has taken positive, genuine steps towards addressing the underlying cause of his most recent criminal offending.
[178] A SFIC [44].
I accept that the Applicant has strong ties to Australia. In the context of Direction 90, however, that is an issue to be addressed in relation to “other considerations.” As such it is not an issue that ought to be taken into account in assessing the weight now to be given to the expectations of the Australian community consideration.[179] To import an issue addressed in the context of one of Direction 90’s other considerations when dealing with a primary consideration would interfere with the operation of that provision of Direction 90 directed to “the manner in which a decision-maker should “generally” weigh up primary considerations against other considerations.”[180]
[179] PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050 at [86].
[180] Ibid at [85].
I accept that the weight otherwise to be attributed to the Australian community expectations consideration is less than might otherwise be the case given, in particular, the Applicant’s long-term residence in Australia and his positive contribution to the community through employment.
In terms of his long-term residence, a reduction in weight to be otherwise attributed to the consideration is consistent with a principle that, in accordance with Direction 90, informs a consideration of the circumstances of the Applicant’s case. Amongst other things, that principle provides that “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.”[181]
[181] Direction 90, cl 5.2(4)
In terms of the Applicant’s contribution to the community through his employment, although his employment history since release from prison appears somewhat patchy (noting that, as previously outlined, he would seem only to have been employed on a full-time basis for most of the period from 2015 to, probably, mid-2019), he nevertheless was, according to Ms F, able to support his family financially up until his imprisonment in 2020. Moreover, I note that the Applicant’s conduct while employed was such as to establish ties with at least two employers and one supervisor, ties of sufficient strength as to motivate their provision of favourable, if not glowing, references about the Applicant.[182]
[182] [Employer 1] (Exhibit A1); [Employer 2] (Exhibit A2); [Supervisor] (Exhibit A3).
Nevertheless, there are a number of aspects of this case which suggests that significant weight ought to be attributed to the Australian community expectations consideration. In particular:
(a) We are here dealing with two Australian community expectations, one arising because the Applicant’s conduct has (I have found) raised serious character concerns. That conduct is of relevance to at least two of the principles which, under Direction 90, inform a consideration of the circumstances of this case. Under those principles, irrespective of whether there is a measureable risk of physical harm to the community, the community is said to expect visa cancellation when conduct is engaged in which raises serious character concerns and strong countervailing considerations may be insufficient in the context of violence of the type engaged in by the Applicant (family violence and violence against a woman).[183]
(b) While the Australian community’s expectation that the Government not allow the Applicant to remain in Australia is one that applies regardless of whether the Applicant poses a measurable risk of causing physical harm to the community,[184] the weight to be attributed to that expectation is affected by the extent of the risk that he will re-offend. Here, despite some steps having been taken by the Applicant directed to his rehabilitation, as outlined earlier, his recidivism risk is not insignificant.
(c) There are serious family violence concerns in this case given the seriousness of the family violence engaged in by the Applicant.
[183] Direction 90, cl 5.2(3) and 5.2(5)
[184] Direction 90, cl 8.4(3).
Conclusion
The consideration concerning the expectations of the Australian community weighs against me being satisfied that there is another reason to revoke the visa cancellation decision. Despite some ameliorating factors, in the circumstances, I attribute significant weight to this consideration.
OTHER CONSIDERATIONS[185]
[185] Direction 90, cl 9.
The considerations which I am required by Direction 90 to take into account are, as mentioned earlier, divided into primary and other considerations.
The other considerations are defined to include but not be limited to a consideration of international non-refoulement obligations; extent of impediments if removed; impact on victims; and links to the Australian community, including strength, nature and duration of the Applicant’s ties to Australia and the impact on Australian business interests.[186]
International non-refoulement obligations[187]
[186] Direction 90, cl 9(1).
[187] Direction 90, cl 9.1.
It has not been contended, and nor does the material before me suggest, that the consideration concerning international non-refoulement obligations is of relevance in this proceeding.
Extent of impediments if removed[188]
[188] Direction 90, cl. 9.2.
In the circumstances, Direction 90 requires that consideration be given to the extent of any impediments that the Applicant may face if removed from Australia to New Zealand, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of New Zealand), taking into account his age and health, whether there are substantial language or cultural barriers and any social, medical and/or economic support available to him in New Zealand.
Both the Applicant and Respondent contend that this consideration weighs in favour of revocation of the visa cancellation decision. They are right to do so.
Apart from a brief period spent in Samoa, the Applicant has been in Australia since he was eight years old. He knows on-one in New Zealand.[189] The only family he has in New Zealand is a cousin[190] whom the Applicant has never met.
[189] G10, p.61.
[190] He had in May 2021 two cousins in New Zealand [G11, p.71], but one has since died.
Absent business and social contacts, it is likely that the Applicant would suffer some hardship and emotional distress in establishing himself and maintaining basic living standards in New Zealand. Moreover, in a COVID-19 context, it may be difficult for the Applicant to find employment in New Zealand in a timely fashion.
There are, however, a number of factors that would ameliorate the extent of that hardship and distress. In particular:
(a)There would be no significant language or cultural barriers inhibiting the Applicant’s capacity to engage economically and socially.
(b)He will have some familial support, given that it is likely that Ms F and her (and the Applicant’s) sons would move to New Zealand to be with the Applicant.
(c)In terms of medical, economic and social support made available by governmental and non-governmental organisations to New Zealand citizens such as the Applicant, there is no material before me suggestive of any lack in New Zealand, either in an absolute sense or relative to that available in Australia. In particular, there is no material before me suggestive of the Applicant being unable to access the support generally available to other citizens of New Zealand.
(d)The Applicant is a young man who is said to have a good work ethic, to have been a reliable employee[191] and, in terms of the construction industry, to be highly skilled.[192] According to Ms F, the Applicant been able to fulfil the role of family provider, having secured full-time employment in the 2015 to 2019 period. Given the variety of jobs he has had in Australia, he has a range of employable skills, which there is no reason to believe are not transferrable to New Zealand.
[191] Exhibit A1; Exhibit A2; Exhibit A3.
[192] Exhibit A1.
On the material before me, I am not satisfied that the Applicant suffers from any debilitating health condition that would militate against his prospects of employment, or otherwise impact adversely on his ability to establish himself and maintain basic living standards in New Zealand. Ms F refers to the Applicant as battling depression at the time of his offending[193] and the Applicant, in oral evidence, stated that he currently takes medication for depression. There is, however, no material before me which corroborates what is, essentially, a lay diagnosis; let alone material on which an assessment could be made of how the alleged condition is likely to impact on the Applicant’s ability to settle into life in New Zealand. Indeed, I note that in a personal circumstances form completed by the Applicant in May 2021, he stated that he did not have any diagnosed medical or psychological condition and that he was not currently being treated by any doctor or health professional.[194]
[193] G13, p.78.
[194] G11, p.74.
Conclusion
On behalf of the Applicant, it is submitted that the impediments he would face in establishing himself and maintaining basic living standards in New Zealand are significant.[195] This appears to be an implicit contention to the effect that the weight to be attributed to this consideration ought to be significant. If that is the Applicant’s contention, I reject it.
[195] A SFIC [48].
While, if removed to New Zealand, the Applicant would no doubt face some impediments in establishing himself and maintaining basic living standards, as mentioned, there are a number of factors that should ameliorate the extent of any associated hardship and distress.
The result is that the extent of impediments consideration weighs moderately in favour of me being satisfied that there is another reason to revoke the visa cancellation decision.
Impact on victims[196]
[196] Direction 90, cl 9.3.
In the circumstances, Direction 90 requires that consideration be given to the impact of a decision to revoke the decision to cancel the Applicant’s visa, or a decision to not revoke it,[197] on members of the Australian community, including victims of his criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the Applicant has been afforded procedural fairness.
[197] In cl 9.3 of Direction 90, the concept employed is of a “s 501CA decision”. That section in fact only provides for one decision, a decision to revoke a visa cancellation decision. In its terms, it does not encompass a decision to not revoke a visa cancellation decision. Nevertheless, that would seem to be the intent underlying use of the concept, especially in the context of cl 9.4.2 of Direction 90 where the reference to a decision under s 501CA is clearly intended to encompass a decision not to revoke a visa cancellation decision but cf CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 at [23], where the analogous provision in the predecessor of Direction 90 was construed in a way that directed consideration only of a decision to revoke a visa cancellation decision.
Insofar as this consideration is directed to the impact of a decision to revoke or not revoke the decision to cancel the Applicant’s visa on victims of the Applicant’s offending and their families, it has not been contended that the consideration is of relevance in this proceeding.
Nevertheless, on reflection, certain of the evidence given by Ms F might properly be categorised as evidence in her capacity as a victim, as opposed to being evidence in her capacity as a partner of the Applicant and mother of his children.[198] In particular, she gave evidence to the effect that she is not afraid of the Applicant,[199] being evidence of a type which Perram J in Bale indicated may be of relevance in the context of the impact on victims consideration.[200]
[198] Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 at [27] cited with apparent approval in DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97 at [43]
[199] G13, p.78.
[200] Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646, where reference was made to evidence of a victim not being concerned that the relevant applicant might assault the victim again.
Insofar as this consideration might be said to concern the impact of a revocation or non-revocation decision on others in the Australian community, it is addressed in the context of the next consideration.
Conclusion
In light of Ms F’s evidence, the impact on victims consideration weighs in favour of me being satisfied that there is another reason to revoke the visa cancellation decision. Given, however, the limited extent of her evidence of relevance to the consideration, the weight to be attributed to the consideration is only slight.
Links to the Australian community, including strength, nature and duration of the Applicant’s ties to Australia and the impact on Australian business interests[201]
[201] Direction 90, cls 9.4, 9.4.1 and 9.4.2.
In the circumstances, Direction 90 requires that this “other consideration” be addressed by reference to two subsidiary considerations.
The first concerns the strength, nature and duration of ties to Australia. The second concerns the impact on Australian business interests.
Strength, nature and duration of ties[202]
[202] Direction 90, cl 9.4.1.
As to this first subsidiary consideration, in the circumstances, it requires that regard be had to:
(a)Any impact of a decision to revoke or not revoke the visa cancellation decision on those of the Applicant’s immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.[203]
(b)The strength, duration and nature of any ties that the Applicant has to the Australian community, having regard to how long he has resided in Australia and 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.[204]
[203] Direction 90, cl 9.4.1(1).
[204] Direction 90, cl 9.4.1(2).

Insofar as the Applicant’s immediate family members comprise:
(a)his sons (each of whom is an Australian citizen), I have considered the impact of a decision not to revoke the visa cancellation decision and concluded (for the reasons outlined earlier) that such a decision would not be in their interests.
(b)Ms F (an Australian citizen), the impact of a decision not to revoke the visa cancellation decision would be relatively adverse when compared to the impact of a decision to revoke that decision. It is her evidence that she will relocate to New Zealand if the Applicant is removed to New Zealand. As mentioned earlier, it is also her evidence that she currently suffers from crippling anxiety and depression.[205] Relocating to a country with which she is unfamiliar, where she knows no one and where she has no familial support would seem likely to affect adversely her capacity to deal with her condition. On the other hand, while she might not currently be able to access an extensive support network in Australia,[206] if the visa cancellation decision were to be revoked and she was to remain in Australia, it is reasonable to expect that she would again be able to take advantage of the support provided by her family resident in northern New South Wales on relaxation of the restrictions on cross-border movements that have been in place in response to the COVID-19 pandemic.
(c)the Applicant’s parents (both Australian citizens)[207], in material lodged on behalf of the Applicant, it is said that he cares for his parents,[208] albeit there is no material before me identifying the nature or extent of that care. The parents state that it is of the utmost importance that the Applicant be “released back into our care” and that they have asked the Applicant to live with them “and assist in providing care for us because of our old age and health conditions.”[209] As I see it, however, the Applicant’s parents are not particularly old[210] and the material before me is not suggestive of any great need for them to be cared for by others.[211] Hence, I do not accept a contention made on behalf of the Applicant to the effect that his parents would never again see him were the visa cancellation decision not revoked because their health issues preclude travel.[212] In any event, if and insofar as the Applicant’s parents are in need of familial care, I note that there is nothing before me suggestive of an inability of the Applicant’s six siblings to provide that care. More generally, the brief letter of support provided by the Applicant’s parents is not what I would consider to be particularly fulsome, directed largely at a desire that, on his release into the community, the Applicant live with them and provide care for them.
(d)the Applicant’s six siblings (two of whom are Australian citizens), while the Applicant contends that his family members would be emotionally distraught were the visa cancellation decision not to be revoked[213] this is difficult to reconcile with the fact there is no material before me from any of his siblings supportive of the Applicant’s case.
[205] G13, p.77.
[206] It seems clear that Ms F has in recent times received little familial support. It would seem she is largely estranged from the Applicant’s family (other than in relation to one of the Applicant’s brothers) and restrictions on movements into Queensland in response to the COVID-19 pandemic limited the support available from her family based in northern New South Wales.
[207] G11, pp.63-4.
[208] G10, p.61.
[209] G20, p.88.
[210] The mother is 71 [G11, p.63], while the father is 67 [G11, p.64].
[211] In a letter of 26 August 2021, the Chairman of an organisation called Pacca Inc stated that the Applicant’s parents were not in good health [G18, p.85] but medical evidence in relation to the mother suggests that she has no current active problems [G20, p.90]. Medical evidence in relation to the father suggests that his only current active problem is longstanding Type 2 diabetes [G20, p.92].
[212] A SFIC [55].
[213] G11, p.71.
Other members of the Applicant’s family reside in Australia, including four uncles, three aunts, six nephews, 11 nieces, five cousins, one grandparent and five relatives in-law (through Ms F’s family).[214] They are not, however, persons who I would categorise as immediate family members in relation to the Applicant and, in any event, there is no evidence before me (or at least no evidence of any significance before me) as to the impact on them of a decision to revoke or not revoke the visa cancellation decision.
[214] Ibid.
As for the strength, duration and nature of any ties that the Applicant has to the Australian community, as mentioned earlier, with the exception of some months spent in Samoa, the Applicant has lived in Australia ever since arriving here aged eight. Now aged 34, he has been living in Australia for around 26 years, almost all his life.
In that 26 years, the Applicant has established strong family and social links in Australia.
As is apparent from the discussion concerning the impact of a decision to revoke or not to revoke the visa cancellation decision, the Applicant’s familial links in Australia are extensive. While the absence of material in support from the Applicant’s siblings might suggest that his links with them are not particularly strong, the support from Ms F, his parents, two sisters-in-law[215] and a brother in-law[216] speak to strong familial support, generally.
[215] G14, p.80 (submission of [Relative 2]); Exhibit A4 (letter of [Relative 1]).
[216] Exhibit A2 (letter of [Employer 2]).
That the Applicant also has strong social links in Australia is borne out by a number of submissions in the material before me, submissions which speak to long term friendships in Australia and involvement in the community.[217]
[217] G19, p.87 (submission from [Acquaintance/Character Referee 1]); G17, p.83 (submission of [Acquaintance/Character Referee 2]); G16, p.82 (submission of [Acquaintance/Character Referee 3]); G15, p.81 (submission of [Acquaintance/Character Referee 4]); Exhibit A4 (letter of [Relative 1].
I note that the Applicant provided no response when asked, in a personal circumstances form he completed in May 2021, to list the positive contributions he has made to Australia.[218] This is not to say, however, that he has made no such contributions. Indeed, it is clear that he has made some positive contributions through being a “provider” for his immediate family,[219] his participation in several “church youth and community activities,”[220] and his employment. As mentioned earlier, the Applicant’s conduct while employed was such as to establish ties with at least two employers and one supervisor, ties of sufficient strength as to motivate their provision of favourable, if not glowing, references about the Applicant.[221]
Impact on Australian business interests[222]
[218] G11, p.74.
[219] G16, p.82.
[220] G17, p.83.
[221] [Employer 1] (Exhibit A1); [Employer2] (Exhibit A2); [Supervisor] (Exhibit A3).
[222] Direction 90, cl 9.4.2.
As to the second subsidiary consideration, in the circumstances, it requires that consideration be given to the impact of not allowing the Applicant to remain in Australia on Australian business interests.
It has not been contended, and nor does the material before me suggest, that this subsidiary consideration is of relevance in this proceeding.
While the Applicant has clearly impressed at least two of his employers in Australia, there is nothing to displace the general position found in Direction 90 to the effect than an employment link only be given weight where the decision to revoke or to not revoke the visa cancelation decision would significantly compromise the delivery of a major project or delivery of an important service in Australia (which is not the case here).
Conclusion
I find that the links to the Australian community consideration weighs in favour of me being satisfied that there is another reason to revoke the visa cancellation decision to a significant extent. It does so because of the strength, nature and duration of the Applicant’s ties to Australia.
CONCLUSION AS TO OTHER REASON FOR REVOCATION
In considering whether there is another reason for revocation of the decision to cancel the Applicant’s visa, my conclusions in relation to the various considerations to which I have had regard (including those to which Direction 90 requires that I have regard) do not point in a uniform direction.
In particular, in the circumstances of this matter and ignoring those considerations which I have found not to be relevant:
(a)weighing in favour of a conclusion that there is not another reason for revocation of the visa cancellation decision are three of the primary considerations, being the considerations concerning protection of the Australian community from criminal or other serious conduct, family violence, and expectations of the Australian community (with the weight attributed to each such consideration being significant).
(b)weighing in favour of a conclusion that there is another reason for revocation of the visa cancellation decision are the primary consideration as to the best interests of minor children in Australia (to a moderate extent), and the other considerations concerning the extent of impediments to be faced by the Applicant should he be removed from Australia (to a moderate extent), the impact on victims (to a slight extent), and the Applicant’s links to the Australian community (to a significant extent).
The overall balance of these considerations is such that I am not satisfied that there is another reason to revoke the visa cancellation decision. This state of non-satisfaction is consistent with my findings in relation to three of the four primary considerations. In this regard, the general position under Direction 90 which has the primary considerations being given greater weight than the other considerations is not displaced in the circumstances of this proceeding. Further, this proceeding is not one in which the one primary consideration supportive of there being another reason for revocation of the visa cancellation decision (the best interests of minor children in Australia) outweighs the other primary considerations. The weight which the primary consideration supportive of the Applicant’s case carries is moderate, while the weight which I attribute to each of the other primary considerations which do not support his case is significant.
DECISION
As I stated at the beginning of these reasons, in this proceeding, the task for the Tribunal is to decide whether it is satisfied that the Applicant passes the relevant character test or that there is another reason why the decision to cancel his visa should be revoked.
I am not satisfied that the Applicant passes the character test.
I am also not satisfied that that there is another reason why the decision to cancel his visa should be revoked.
Accordingly, for these reasons, the decision under review is affirmed.

I certify that the preceding 239 (two hundred and thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member
C. J. Furnell

............................[SGD]............................................
Associate
Dated: 12 January 2022

Date of hearing: 20 and 21 December 2021

Advocate for the Applicant: Mr Joel McComber

Solicitors for the Applicant: Sentry Law

Advocate for the Respondent: Ms Claire Laizans

Solicitors for the Respondent: MinterEllison

Date of hearing:	20 and 21 December 2021
Advocate for the Applicant:	Mr Joel McComber
Solicitors for the Applicant:	Sentry Law
Advocate for the Respondent:	Ms Claire Laizans
Solicitors for the Respondent:	MinterEllison