JTHL and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 1502

JTHL and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 1502 (22 August 2025)
Applicant/s:  JTHL
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2025/3863
Tribunal:Senior Member Clues
Place:Hobart
Date:22 August 2025

Decision:The Tribunal affirms the decision under review.

Senior Member Clues
Catchwords
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – fail character test – another reason to revoke cancellation decision -Direction No 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the applicant commit further offences or engage in other serious conduct – family violence – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – legal consequences – protection visa previously refused – extent of impediments if removed – applicant is a 33 year old citizen of New Zealand – cancellation decision is affirmed
Legislation
Migration Act 1958 (Cth)
Cases
CRNL v Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 138
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
FYBR v Minister for Home Affairs [2019] FCAFC 185
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 27; (2022) 275 CLR 582
PLCP v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 398
Secondary Materials
Direction 110, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA.
Statement of Reasons
Background

The applicant was born on 19 January 1990. He is now 35 years old, and he is citizen of Papua New Guinea (PNG). He has been living continuously in Australia since 24 August 2016.[1]
[1] HB287 and HB1094.
On 15 November 2022 the applicant was convicted in the Magistrates Court of Queensland in Cairns of the following offences that occurred on 19 June 2022 (the index offending)[2]
·assaults occasioning bodily harm -12 months imprisonment - suspended for 30 months – concurrent.
·contravention of domestic violence order (aggravated offence) - 6 months imprisonment - suspended for 30 months – concurrent.
·burglary and commit indictable offence domestic violence offence - probation 30 months.
[2] HB59 and HB59.
On 6 March 2024, the applicant was convicted of the following offences that occurred on 29 June 2023:[3]
·breach of probation order
·assaults occasioning bodily harm -domestic violence offence.
·contravention of domestic violence order (aggravated offence).
·common assault - domestic violence offence.
[3] HB75-76
On 6 March 2024, the applicant was convicted of the following offences that occurred on 7 February 2024:
·contravention of domestic violence order (aggravated offence)
·wilful damage - domestic violence offence.
·breach of bail condition - domestic violence offence.[4]
[4] HB75.
On 6 March 2024, the court convicted the applicant of offences punishable by imprisonment, during the operational period of the suspended sentence. The court ordered that the applicant serve the whole of the suspended imprisonment, being a period of 12 months. The court ordered that the applicant be sentenced to imprisonment with respect to the other offences but ordered that all sentences to be concurrent with each other, to be served cumulatively with all the suspended sentence imposed on 15 November 2022. The court stated that the applicant had been held in pre-sentence custody for 27 days between 8 February 2024 and 5 March 2024. The court declared that the 27 days of pre-sentence custody be imprisonment already served under the sentence and ordered that date the applicant been released on parole fixed on 8 May 2024.[5]
[5] HB76.
On 30 April 2024, the applicant’s Class WC Subclass 030 Bridging C visa (visa) was mandatorily cancelled under s501(3A) of the Migration Act 1958 (Cth) (The Act). This was because the applicant had a ‘substantial criminal record’ of having been sentenced to a term of imprisonment of 12 months or more[6] (the cancellation decision).
[6] ss 501(6)(a) and 501(7)(c) of the Act and HB1095
On 2 May 2024, the applicant made representations to have the cancellation decision revoked pursuant to s501CA of the Act.[7] On 31 May 2025, a delegate of the Minister determined that the applicant did not pass the character test nor was there another reason why the cancellation decision should be revoked. Accordingly, the power in s501CA(4) was not enlivened and the applicant’s visa remained cancelled (the non-revocation decision).[8]
[7] HB82-HB93.
[8] HB 37-HB57.
On 2 June 2025 the applicant made an application to the Tribunal to review the non-revocation decision.
The hearing
The hearing of the application was held on 7 and 8 August 2025, via Microsoft Teams video. The applicant was in immigration detention and was self-represented. The respondent was legally represented by Ms Black. The applicant gave oral evidence with the assistance of a Tok Pisin interpreter. No other witnesses were called to give evidence, a hearing book was prepared by the respondent and documents numbered HB1 to HB1155 contained in that hearing book were accepted into evidence by consent. It was agreed that the respondent’s statement of facts, issues and contentions, which was contained in the hearing book was not evidence.
THE LEGISLATIVE FRAMEWORK
Under s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test, because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of 12 months or more, and the person must be serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth or a State or Territory.
If a visa is cancelled under s 501(3A), then pursuant to s 501CA(3), the Minister must give the person a written notice inviting them to make representations about the cancellation decision. If the person makes representations in accordance with that invitation, then under s 501CA(4), the Minister may revoke the cancellation decision if satisfied that the person passes the character test (s 501CA(4)(b)(i)) or that there is another reason why the cancellation decision should be revoked (s 501CA(4)(b)(ii)).
S 500(1)(ba) of the Act, provides that applications may be made to the Tribunal for review of decisions made by the Minister under s 501CA(4) not to revoke a cancellation decision. S 500(6B) of the Act, states that an application to the Tribunal must be lodged within nine days after the date on which the person was notified of the non-revocation decision.
Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or power under the Act, and such person or body must comply with any direction given by the Minister (s 499(2A)). In this case, Direction 110, Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA (the Direction), dated 7 June 2024, is applicable.
ISSUES
The evidence supports the following findings which are made by the Tribunal:
i.The application for review was lodged with the Tribunal within the time prescribed by s 500(6B).
ii.The applicant made representations in accordance with s 501CA(4)(a).
iii.The applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more and therefore has a substantial criminal record as defined by s 501(7)(c). As a result, the applicant cannot rely on s 501CA(4)(b)(i) in order to have the mandatory cancellation of his visa revoked.
Therefore, the issue for the Tribunal to determine is whether pursuant to s 501CA(4)(b)(ii) there is another reason why the cancellation decision should be revoked.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION DECISION?
When determining this issue, the Tribunal is bound by the Direction.
Paragraph 5.2 of the Direction sets out guiding principles that the Tribunal must apply when determining whether or not to revoke a visa cancellation. Those principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non‑citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerationsmay be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that, informed by the principles in paragraph 5.2, a decision-maker must take into account the primary and other considerations identified in sections 8 and 9 of the Direction, where relevant to the decision.
Paragraph 8 of the Direction sets out five primary considerations that the Tribunal must take into account, and they are:
1protection of the Australian community from criminal or other serious conduct;
2whether the conduct engaged in constituted family violence;
3the strength, nature and duration of ties to Australia;
4the best interests of minor children in Australia; and
5expectations of the Australian community.
Paragraph 9 of the Direction sets out three other considerations which must be taken into account. These considerations are:
1legal consequences of the decision;
2extent of impediments if removed; and
3impact on Australian business interests.
Paragraph 7(1) of the Direction requires the Tribunal to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) of the Direction requires the Tribunal to give greater weight generally to the protection of the Australian community over the other primary considerations and to give greater weight generally to primary considerations over other considerations.
As submitted by the respondent, the role of Tribunal is to undertake a process of balancing different considerations, or evaluating them against, and in comparison to, each other in order to arrive at a decision whether there is “another reason” to revoke the cancellation; that is to say, the Tribunal is required to conduct a “weighing and balancing” exercise, weighing up the relevant considerations and the applicant’s representations against one another to come to the correct and preferable decision.[9]
[9] CRNL v Minister for immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 138
The applicant’s evidence
The applicant has four minor children in Australia and two minor children in PNG. Details of those children are as follows:
·C - biological son, now 15, resides in PNG with his mother, Ms C.
·L - biological son, now 7, resides in PNG with his mother, Ms C.
·M - biological son, now 7, resides in Australia, with his mother, Ms L.
·X - biological son, now 4, in Child protection, resides in Australia, with his foster mother. X’s biological mother, Ms V, is unable to properly care for him due to an intellectual disability.
·A - biological son, now 2, resides in Australia, with his mother, Ms A.
·B - biological son, now 11 months, resides in Australia, with his mother, Ms A.
The applicant has never met his youngest child, B, because he has been in prison or immigration detention since February 2024 (prior to B’s birth). He is pursuing an application for custody of X. That application has been adjourned as a result of the applicant being in custody then detention.
The applicant admits to all of the crimes he has been convicted of. He says that since being in prison/detention he has changed his brain and his life. He has recovered from his mental health problems as well as his problems with alcohol. He now wants to spend quality time with his children and put them as his first priority in his life.
He has two children in PNG. He wants to work hard and sponsor them and their mother to travel to Australia. The children will attend school, and their mother will study aged care.
He has been offered a job in Cairns and he can commence that as soon as he is released from detention. He also has a plan to start his own business involving providing labour to farms because he has experience working as a subsistence farmer in PNG.[10]
[10] HB184-186.
There is currently a DVO against him in relation to Ms B and his child, A. He also has taken out a DVO against Ms B. The DVO that was in place with respect to Ms M has recently expired.
He says that he speaks to his child, M, daily and he speaks to his child, X, every Sunday. He sometimes speaks to A. He has had no engagement with B.
The applicant accepts he has committed crimes, but he has now done his time in prison/detention, and he has changed. He wants to be with his children, contribute to the community, go back to the gym and train youth there.
He claims that most of his offending occurred whilst he was drunk. Whilst he has been in custody/detention he has forgotten about alcohol and will not drink again. He wants to stay away from trouble. He has given his life to God. He wants to go to Church, follow people who have good lives and stay away from drama and negative people. He wants to respect the law, his children and women. He did say that he believes God will help him find a way back to his children. God will bring him a better woman. He said that because he does not speak good English, his ex-partners took advantage of him. He was verbally abused, they demanded money from him and threatened to report him to ‘Immigration’. The women put DVOs on him, but they were the ones exploiting and threatening him. When the applicant was asked to clarify this evidence, he did admit that he was violent towards women and that is why the DVOs were put on him.
The applicant said that during his upbringing he witnessed and experienced a lot of violence. He said that whilst in prison/detention he learnt how to stay away from that. He said that prior to being in prison/detention he did do some programs to help his problems, but they were “small” and the programs he has done in prison/detention were “bigger” and they a more positive impact on him and opened his eyes. He is very sorry for the violence he has committed against women, but he has now undertaken courses and has had a change of heart. He wants to be a good man and a good role model. He will now put his children first and not commit the same crimes again. He wants to take his children to the park, on holidays and give them Christmas presents. He wants to bring all of his children together and show them love and support. He wants to be present in their lives and show them love. He wants to get custody of X who is currently in child protection. He wants X to know him and his family.
Domestic Violence Orders
In relation to Ms L, 3 DVOs were issued against the applicant for domestic violence incidents that occurred in 2020. The last one expired on 22 July 2025.
In relation to Ms V, 2 DVOs were issued against the applicant for domestic violence incidents that occurred in 2020. The last one expired on 25 June 2025.
In relation to Ms A, 7 DVOs were issued against the applicant for domestic violence incidents that occurred in 2021, 2023 and 2024. There is a current DVO in place with respect to Ms A and his son, A, that does not expire until 2 August 2028.
The applicant’s offending
The applicant admitted to all of the offences recorded against him in the Australian Criminal Intelligence Commission Check Results Report dated 21 May 2024.[11]
[11] HB58-60.
In addition to the offences referred to above that the applicant was convicted of on 15 November 2022 and 6 March 2024, on 22 October 2020 the court convicted the applicant of the following offences:
·assaults occasioning bodily harm, domestic violence offence on 13 June 2020.
·contravention of domestic violence order on 18 March 2020.
·dangerous operation of a vehicle, domestic violence offence on 18 March 2020.
·wilful damage, domestic violence offence on 18 March 2020.
At the sentencing hearing on 22 October 2020, the Magistrate noted that the full particulars of the offending were set out in the sentencing schedule, which was an agreed set of facts.[12]
[12] HB 69.
In relation to the offending on 18 March 2020, the sentencing schedule states:
On the 20^th day of February 2020, in the Tully Magistrates Court, a temporary order was made naming the aggrieved as [Ms L] and [the applicant] as the respondent.
Conditions on the order are:
1) [the applicant] must be of good behaviour and not commit domestic violence against the aggrieved.
2) [the applicant] is prohibited from entering or attempting to enter, approaching to within 50 m of the premises where the agreed lives.
[The applicant] was present in court that day the order was served.
At about 2:45 am on Wednesday, 18 March 2020 at … [the applicant] turned up and started banging on the window. [The applicant] then went to the rear door where he was yelling at the aggrieved saying she had another man inside the house.
[The applicant] has pulled the screen door off its hinges and entered the house.
[The applicant] has walked inside the house and picked up [M] (2-year-old child) who is [the applicant’s] child. The victim asked for [the applicant] to hand back [M] and [the applicant] has done this and left the premise, the victim has driven to away from the address and called police.
Approximately half an hour later the victim has driven home to collect a blanket. The defendant was parked on the north side of the house on…
At approximately 3:30 am on…[the applicant] was in his parked car. [The applicant] reversed his car down … upon seeing the victim.
The victim has driven away on… and turned east into…[The applicant] has followed the victim and overtaken her. [The applicant] has then slammed on his brakes causing the victim to have to break to avoid crashing into [the applicant]. The victim reversed the car then put it into drive and overtook [the applicant]. The victim drove to the… Police Station…
[The applicant] followed her and stopped beside her. [The applicant] has done a forward burnout and then come to a quick stop. Then [the applicant] has done a reverse burnout towards them and scraped her car across the right side. The victim has sounded her horn. [The applicant] has driven the car forward and turned it around to face the victim who has wound down the window and yelled to [the applicant] to stop as she had their child in the car. [The applicant] has driven away south along… Then east into…
The victim has taken her child out of the car, phoned Police and run across… to a house. The victim has hidden behind the large hedge in the front yard of the house with her child. [The applicant] has driven back around and done another burnout near the victim’s car. The occupant of the house has seen the victim hiding and offered for her to come inside and wait for Police.
Police have attended spoken to the victim and escorted her to a safe location.[13]
[13] HB380-381.

This offending relates to Ms L and their son M. In the sentencing remarks the Magistrate noted that the incident would have been a scary situation for Ms L, particularly as she had their child in the vehicle at the time. The Magistrate noted that the offending resulted in damage to the victim’s vehicle and then did not appear to be any alcohol or drugs involved.[14]
[14] HB69.
In relation to the offending on 13 June 2020, the sentencing schedule states:
The victim and [the applicant] are known to each other and have been in a relationship and living together for 3 months. The victim is pregnant with [the applicant’s] child.
At approximately 11 pm on the 12^th of June 2020, at … [the applicant] returned home, the victim initially did not open the door as she was afraid of him. The victim eventually opened the door because of the noise he was making.
The victim went to the lounge room and the defendant followed. He pushed her from behind onto the table in the living room. The victim put her hands onto the table in an attempt to stop [the applicant] pushing her.
[The applicant] has pushed the victim onto the couch. The victim has got up and gone into the bedroom where [the applicant] following her. The victim has sat down on the bed and while sitting there [the applicant] has picked up a basket of clothes and put it on top of the victim’s head.
[The applicant] has asked the victim to call his mother. When she has refused [the applicant] has become angry and punched her two to three times in the head when his right closed fist with the victim attempting to protect herself. This has caused a large laceration to the middle of the victim’s forehead.
The victim has gone to the toilet to wipe the blood off her forehead. [The applicant] has gone to bed.
The victim has gone to bed to wait until [the applicant] fell asleep and called police.
Police attended and located the victim on the corner of …and … Police have spoken to the victim and called QAS to assess the injuries. The victim was taken to hospital for treatment by QAS due to the head wound and being pregnant.[15]
[15] HB385.
This offending relates to Ms V, the mother of their son X, who is in child protection. Ms V has an intellectual impairment.
In the sentencing remarks the Magistrate noted that there were aggravating factors associated with the offending, including the fact that the victim was pregnant, and the applicant punched her two to three times in the head with a right closed fist, as a result of which she was taken by ambulance and treated at the hospital for her head injury.[16]
[16] HB69.
The offending that occurred on 2 June 2022, 19 June 2022, 29 June 2023 and 7 February 2024 involve Ms A and their son A.
The offending of 2 June 2022 is summarised as follows:
A DVO was made on 6 January 2022 naming Ms A as the aggrieved and the applicant as the respondent. The DVO was valid until 18 November 2026. On 2 June 2022 at 5:35 am police were called to attend the victim’s premises who advised she was lying in her bed in her bedroom at the back of her unit. She heard a smash on the window above her bed. The victim was scared as she believed the person outside her unit was her ex-partner [the applicant]. The victim ran outside and hid behind a vehicle near the entrance gate to the unit complex and saw [the applicant]. The victim went back to her unit to obtain her keys and phone to call the police, however she was unable to locate her mobile phone. The police attended the applicant’s address and located him asleep. He was in possession of the victim’s mobile phone.[17]
[17] HB368.
The offending of 19 June 2022 is summarised as follows:
A DVO was made on 6 January 2022 naming Ms A as the aggrieved and the applicant as the respondent. On 19 June 2022 in the early hours of the morning, the aggrieved was home asleep at her residential address. She was woken up by a knock at the back door she looked outside and identified the applicant standing at the door. She did not let him in, so he pulled on the fly screen sliding door, ripping it out of its tracks and entered the home. The aggrieved immediately decamped out the front door and hid between two cars in the car park of the complex. The applicant followed and located the aggrieved. At this time the victim was walking from his unit to his car that was parked in the car park. The aggrieved ran to the victim and attempted to get help. The victim did not notice the aggrieved and she ran to the other end of the unit complex. The victim got into his car. The applicant approached him. The victim thought the applicant must have needed help and opened the door. The applicant grabbed the victim by the collar and head-butted him. The victim begged the applicant to leave. The applicant walked away. The victim attempted to exit the complex to go to work by driving to the gate and pressing the buzzer to open it. The applicant returned to the victim’s car, assaulted him again by punching him and slapping him in the mouth before decamping. The victim exited his vehicle leaving it in the middle of the exit driveway and ran back to his residence where his wife called the police. The police attended and spoke to the aggrieved. They located the applicant asleep in a bush approximately 10 – 15m from her residence. The police located the keys in the bush where the applicant was asleep. The aggrieved confirmed that those items were inside her residence, and she did not give permission to the applicant to enter her home or steal her keys.[18]
[18] HB360.
With respect to the offending that occurred on 29 June 2023 the sentencing Magistrate noted that at the time of this offending he was on probation for previous offending, and he was on “a really hefty, suspended sentence of 12 months for 30 months.” And had breached those orders.[19] he noted that:
the victim was home when the applicant arrived there after being out all night and he was drunk. There was an argument because the applicant had gone to the pokies and he had $700, which was meant to be sent back to family and to pay bills. He only had $200 left. During the argument the applicant packed a suitcase and a bag and then victim put them outside for him to leave. The applicant got angry. The victim went out the back door, the applicant grabbed her by the jawbone and also by the arms. He dragged her back inside the unit and he locked the screen and glass doors, as well as the front door, which must have been very very scary to the victim because she was locked inside with the applicant. The applicant grabbed her by the jaw so hard that caused her pain and also red marks on her jaw. There were also marks and scratches on her arms. After being dragged back inside the unit by the applicant she was sitting down on the couch and the applicant went up to her and punched her in the forehead with a clenched left fist and he punched her so hard that it caused pain and swelling and there was a contusion on her forehead. The victim was frightened and so she picked up their three month old baby, because she thought that if she was holding the baby, the applicant would stop hurting her and she would be safe. But, while sitting on the couch holding the baby, the applicant threatened to kick her in the face. While threatening her, he had his foot about 30 cm from her face. She was hiding, she then tried to hide the baby beside her because she was very scared not only for herself but for the baby. The baby is also upset and crying a lot. After threatening to kick her, the applicant took the baby and went into the kitchen. While holding the baby, the applicant armed himself with a black handled knife which was about 20 cm long. The applicant went back to the lounge where the victim was sitting and he threatened to throw the knife at her. While making those threats, he held the knife in the air and could have carried out that threat. The victim was frightened, she went to the police and was very distressed. She was taken to the hospital and given pain relief. The applicant is later located, arrested and charged. The police objected to the applicant’s bail but after a night in custody the Magistrate decided to release him on bail with conditions including not to go within 50 m of where the victim lived.[20]
[19] HB64.
[20] HB64-65.
With respect to the offending that occurred on 7 February 2024, the sentencing Magistrate noted that it was in contravention of a DVO and involved wilful damage. The circumstances were:
At 8 pm, the applicant approached the victim’s residence. He went to the rear glass sliding door and punched the glass and damaged it. The applicant was not at home. When she got home at 10 pm, a neighbour approached her and said that the applicant had broken some glass and might be inside. The victim was scared and decided not to go inside. She went to the police. The police found the applicant asleep on the rear porch of her unit. They observed the damaged glass door and an injury to the applicant’s right hand consisting of several lacerations around his right knuckles.
PRIMARY CONSIDERATION 1: Protection of the Australian community
Paragraph 8.1(1) of the Direction compels the Tribunal to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Direction further provides that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity and other serious conduct by non-citizens. The Tribunal should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.
In determining the weight to be allocated to primary consideration 1, paragraph 8.1(2) of the Direction requires the Tribunal to consider; the nature and seriousness of the non‑citizen’s conduct to date and the risk to the Australian community should the non‑citizen commit further offences and engage in other serious conduct.
The nature and seriousness of the conduct
Paragraph 8.1.1(1)(a) of the Direction sets out the three categories of offences which are viewed “very seriously” by the Australian Government and the Australian community. They are:
i.violent and/or sexual crimes;
ii.crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed.
Considering the applicant’s offending history and the findings made by the Tribunal in relation to that, the Tribunal further finds that the applicant committed crimes of a violent nature against a woman in the presence of children including acts of family violence. Accordingly, these acts are viewed as very serious.
Paragraph 8.1.1(1)(b) of the Direction states that crimes committed against vulnerable members of the community, such as the disabled, are considered by the Australian government and the Australian community to be serious. The Tribunal notes that the offending on 13 June 2020 involved Ms X, who has an intellectual disability. This conduct is serious.
Paragraph 8.1.1(1)(c) of the Direction requires the Tribunal to consider the sentence imposed on the applicant for his crimes. The respondent contends and the Tribunal agrees that the imposition of custodial sentences by the courts must be viewed as a reflection of the objective seriousness of the offences. The Tribunal finds that the applicant’s custodial sentences are indicative of the seriousness of the applicant’s offending.[21]
[21] HB1097.
Paragraph 8.1.1(1)(d) of the Direction requires the Tribunal to consider the impact of the applicant’s offending on any of his victims. There is no direct evidence in relation to the applicant’s offending on his victims. However, with respect to the offending that occurred on 18 March 2020, 29 June 2023 and 7 February 2024, the sentencing Magistrate observed that the applicant’s victims would have found that offending to be “very very scary”, “very frightening” and “scary”.[22] He also noted that the incidents that occurred on 13 June 2020 and 29 June 2023 involved physical injuries for which the victims attended hospital.
[22] HB64, 65,66, 69.
Paragraph 8.1.1(1)(e) of the Direction requires a consideration of the frequency of the applicant’s offending and/or whether there is any trend of increasing seriousness. The respondent contends and the Tribunal finds that the applicant’s criminal history demonstrates a trend of increasing seriousness and that his offending has been frequent since 2020.[23]
[23] HB1097,
Paragraph 8.1.1(1)(f) of the Direction requires the Tribunal to take into account the cumulative effect of repeated offending. The applicant’s offending has caused harm to his victims and is likely to have had a negative impact on some of his children. Further his repeated offending has resulted in significant use of public money and resources associated with law enforcement.
There is no evidence that is relevant to paragraphs 8.1.1(1)(g), (h) or (i) of the Direction.
Taking into account the above, the Tribunal finds that the applicant’s offending is very serious and weighs heavily against revocation of the cancellation decision.
The risk to the Australian community should the applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction states:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non‑citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). ...
(c) where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
This paragraph requires an assessment of the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct. It also requires an assessment of the risk or likelihood of the applicant reoffending. There is no statutory constraint on the way that this risk is assessed save that whatever is taken into account must be logical and rational.[24]
[24] BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68]
As the Tribunal is not considering whether to refuse to grant a visa to a non-citizen, paragraph 8.1.2(2)(c) is not relevant to this case.
Paragraph 8.1.2(2)(a) requires an assessment of the nature of the harm to individuals or the Australian community should the applicant engage in further or other serious conduct. If the applicant was to re-offend the potential for significant harm is substantial. If he was to repeat similar family violence, such conduct could result in physical and psychological harm or worse to his victim. Further reoffending will consume law enforcement and health care resources. Accordingly, the Tribunal finds the nature of the harm resulting from the applicant reoffending is so serious that it would be unacceptable to the Australian community.
Paragraph 8.1.2(2)(b) relates to the risk or likelihood of the applicant reoffending. In relation to the applicant’s rehabilitation and efforts made to prevent reoffending. There are a number of documents in the hearing book that are relevant.
Throughout the hearing the applicant was adamant that he wished to get his child, X, out of Child Protection so that X can live with him. He gave evidence that he speaks to X by telephone every Sunday.
In an application for a Child Protection Order filed with the Magistrates Court in Cairns on 9 August 2024 the Director of Child Protection sought an order granting long term guardianship of X, to the Chief Executive (Child Safety) until the end of the day before he turns 18 years of age.[25]
[25] HB1078-1082.
Under the heading “Reasons for seeking the orders” it asserts that X is at an unacceptable risk of suffering significant harm and he does not have a parent able and willing to protect him from the harm. During the period of a previous order made on 25 August 2022, neither parent had achieved reunification with X and had not resolved the child protection concerns. It was noted that Ms V has an intellectual disability which affects her ability to meet X’s daily care and protection needs. Ms V has an adult guardian appointed and a support worker. In relation to the applicant the following submissions are made:
·X is at an unacceptable risk of suffering physical and emotional harm and neglect as a result of exposure to domestic and family violence.
·[The applicant] has a history of coercive, controlling and violent behaviour towards intimate partners.
·In June 2020 [the applicant] physically assaulted Ms V when she was pregnant by pushing her, causing her to fall over, and hitting her which resulted in a laceration to Ms V’s forehead.
·[The applicant] is named as a respondent to a current Protection Order (DVO) naming a previous partner as an aggrieved, with the Queensland Police Service (QPS) as the applicant. The DVO includes no contact conditions for the aggrieved and her child, was made on 6 March 2024 and is set to expire on 2 August 2028.
·[The applicant] is also the respondent to another QPS filed Protection order with no contact conditions and is set to expire on 22 July 2025.
·[The applicant] is the respondent to two QPS filed Protection orders with no contact conditions, which names Ms V as the aggrieved, expiring 22 July 2025 and 25 June 2025.
·[The applicant] has completed the Stopping Family Violence Program in December 2022 but has not implemented the skills and knowledge from the program. It is understood that as late as February 2024 [the applicant] has perpetrated domestic violence against a previous partner.
·[The applicant] has been sentenced to imprisonment as a result of breach of domestic violence orders.
·Since his release on parole on 8 May 2024, [the applicant] has been in immigration detention, as his Visa has been cancelled, and his deportation ordered.[26]
[26] HB 1080-1081.
The affidavit in support of that application states that on 30 May 2024, the applicant attended a phone meeting in relation to the upcoming Child Protection Assessment. The applicant was advised of the assessment that had been made. The applicant said the following:
·“No, I don’t like that, I want my kids with me, I have done 16 courses.”
·“I’m not the problem” and “you’s always listen to the mother”. [27]
[27] HB920
The affidavit also makes the following observations in relation to the applicant:
·he has a history of alcohol misuse which impacts on his parenting ability.
·He has a history of criminal offending resulting in incarceration which impacts on his parenting ability.
·He has a history of perpetrating domestic violence and family violence towards his intimate partners including Ms V.
·He has completed the Stopping Family Violence Program in December 2022. However, he did not implement the skills and knowledge that he learnt from the program into his intimate relationships. This is evidenced by his recent breach of DVO in March 2024.
·The applicant has previously engaged with Queensland Injectors Health Network (QuIHN) between June 2022 and February 2023, when he completed the Relapse Prevention Plans and Psycho-educational sessions (for alcohol misuse). He commenced QuIHN again May 2023, however, this Episodes of Care was closed due to inconsistent engagement.
·His family time with X commenced on 3 June 2023, however, the attendance was inconsistent. As a result, his family time when X was suspended on 19 July 2023. [As at the date the affidavit was sworn on 15 August 2024] the applicant had not engaged with the Department to discuss the support of having meaningful family time with X.[28]
[28] HB918-919.

There are records in the hearing book of the applicant completing the following courses:
·QuIHN, 7 sessions between 23 June 2022 and 25 October 2022, 12 sessions between 16 May 2023 and 20 September 2024 and 9 sessions between 28 January 2025 and 8 July 2025, including a relapse prevention plan completed on 25 February 2025.[29]
[29] HB149-155 and HB1120.
·stopping family violence program - 16 sessions (approximately two hours per session) between 11 July 2022 and 15 December 2022.[30]
[30] HB176-177.
·positive futures program, 4 sessions between 3 and 12 October 2023.[31]
[31] HB156.
·smart recovery program, 5 sessions between 5 August 2024 and 9 September 2024 (presented by the IHMS drug and alcohol team).[32]
[32] HB157-158.
·group therapy, presented by the HCA drug and alcohol team, 5 sessions between 18 November 2024 and 10 December 2024.[33]
[33] HB159-160.
·stress management - 4 hours on 18 May 2024.[34]
[34] HB135.
·single parenting - 3 hours on 13 December 2024.[35]
[35] HB136.
·emotional intelligence - 5 hours on 15 December 2024.[36]
·drug and alcohol abuse 101 - 7 hours on 18 May 2024.[37]
·domestic violence awareness - 8 hours on 24 May 2024.[38]
·depression management - 5 hours on 14 December 2024.[39]
·basic parenting skills - 5 hours on 13 December 2024.[40]
·child safety for parents – 5 hours on 13 December 2024.[41]
·healthy relationships – 7 hours on 18 May 2024.[42]
·circuit breaker course -10 sessions between 13 September 2024 and 9 December 2024.[43]
·psychological treatment - six sessions between 10 June 2024 and 19 August 2024.[44]
·unshackled reset program.[45]
[36] HB137.
[37] HB138.
[38] HB139.
[39] HB104.
[40] HB141.
[41] HB142.
[42] HB143.
[43] HB178-179.
[44] HB144-148.
[45] HB 1128.
The applicant has committed a number of domestic violence offences according to his criminal record on 18 March 2020, 13 June 2020, 2 June 2022, 19 June 2022, 29 June 2023 and 7 February 2024. The applicant was imprisoned from 8 February 2024 and when he was released on bail he went straight into immigration detention.
As submitted by the respondent the applicant has attributed a significant proportion of his offending to alcohol.[46] In the sentencing remarks dated 6 March 2024 the Magistrate agreed that alcohol was causing problems for the applicant.[47] However, the sentencing Magistrate did note with respect to the domestic violence offending that occurred on 18 March 2020, that there did not appear to be any alcohol or drugs involved in that offending.[48] The applicant gave evidence that he was sober at the time his domestic violence that involved the dangerous operation of a vehicle.
[46] HB124-125. t
[47] HB66.
[48] HB69.
The applicant did attend some counselling in relation to managing alcohol abuse with QuIHN in 2022 and 2023. He also attended a Stopping Family Violence Program in 2022. However, this did not stop him from committing further serious domestic violence offending associated with excessive intake of alcohol on 29 June 2023 and 7 February 2024. Accordingly, the treatment he received in relation to alcohol and family violence prior to those dates did not address the risk of reoffending on those dates. Further as submitted by the respondent, Child Protection Services repeatedly advised the applicant of the importance of dealing with his alcohol abuse in the context of being a better parent for X and his children generally. However, he continued to drink excessively even though he was aware that this would adversely affect his chances of gaining custody of X and he continued to offend.
After the applicant’s visa was cancelled in April 2024, the applicant has engaged in a number of courses, some of which were a few hours and some of which were more extensive. The impact upon the applicant of these additional courses remains untested. He has not been in the community since he has undergone those courses. In his personal circumstances form dated 22 May 2024, the applicant states that he knows that he won’t be reoffending, but believes he still has room for improvement by continuing to attend counselling in the community, other rehabilitation programs and continuing his sports programs involving boxing and kickboxing.[49] In the past the applicant has shown a reluctance to participate in rehabilitation courses when he is in the community.
[49] HB104.
The applicant participated in a Positive Futures Program (PFP) from 3 – 12 October 2023. In a report dated 18 January 2024 the recommendations noted that the applicant’s:
… participation in the PFP demonstrated ongoing needs in his domestic violence patterns of behaviour and attitudes. It was highly recommended [that] his supervising officer monitor and appropriately respond to any attempts of contact [the applicant] may potentially make towards his ex-partners (aggrieved on Domestic Violence Order/s with non-contact conditions), alongside considering a referral to a service provider that would support [the applicant’s] capacity to form a healthy and safe intimate relationship when appropriate. [The applicant] should be encouraged to consider strategies to manage his mood and relevant responses should he find himself ‘frustrated’ particularly relating to his children, or when experiencing conflict with an intimate or sexual partner or attempting to co-parent. Additional practices would be regularly participating in skills practice (role-play) with his supervising officer, with a view to provide him scope to utilise prosocial, assertive communication with a partner/woman that supports equitable partnerships. It was highly recommended he be supported in engaging with a counsellor such as through relationships Australia, which could also assist with mood management, conflict resolution and communication. Finally, facilitators recommend it be encouraged to continue to attend Queensland Injectors Health Network (QuIHN), for further support relating to his substance abuse.[50]
[50] HB406
In that report facilitators did note that he continued to harbour “victim blaming attitudes.”[51] This was also evident from the oral evidence that the applicant gave at the hearing. In his evidence he indicated that his victims had ‘triggered him’, ‘talked too much’, were ‘controlling’ and ‘exploited him because of his poor English’ and they ‘made threats to report him to the police’. In his oral evidence, the applicant showed little insight into the causes of his offending and the seriousness of his offending. He sought to minimise his offending. During cross-examination the applicant said that in his recent courses he had learnt about anger and stress management, respecting women and not to yell and get angry in front of his kids. He had learnt that if he was in an argument with a partner he should walk away and cool off and be with other people who support him and are positive with him. He said that if he was in an argument with a partner, they should both sit down and talk about the problem and come to a compromise. He also said that he has now given his life to God, he is a very changed man and the offending will not happen again. He said that God will help him find a way back to his children and that God will bring him a better woman who will not ‘trigger’ him again.
[51] HB405.
The Tribunal has evidence about a number of courses that the applicant has participated in since his visa was cancelled and he should be commended for that. Through his attendance at these courses the applicant has demonstrated a willingness to change and he says that being in prison and detention has made him realise that he wants to remain in Australia and be with his children. However, there is no evidence that the courses he has completed have addressed his ongoing needs in his domestic violence patterns of behaviour and attitudes as identified by the facilitators of PFP that he participated in from 3 – 12 October 2023, after which he reoffended.
Having regard to all of the evidence, the Tribunal finds the applicant does have ongoing needs with respect to his domestic violence patterns of behaviour and attitudes. The applicant’s future conduct in relation to alcohol abuse and domestic violence conduct remains untested. He has not displayed a good understanding about domestic violence and he minimised his responsibility with respect to his domestic violence offending. In the circumstances the Tribunal finds that the applicant proposes a real risk of committing further domestic violence offending if he was returned to the Australian community, whose safety is regarded by the Direction as ‘the highest priority of the Australian Government.’ The Tribunal finds that there is a real risk that the applicant will reoffend and if he does the risk of injury or worse to the Australian community is significant.
Conclusion for primary consideration 1
As a result of the Tribunal’s analysis and evaluation of the evidence that relates to primary consideration 1, particularly the protection of the Australian community, the very serious nature of the applicant’s conduct and the risk to the Australian community should the applicant reoffend, the Tribunal finds that the evidence weighs heavily against the Tribunal revoking the cancellation decision.
PRIMARY CONSIDERATION 2: Family violence
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)   a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)   there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:
a)   the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b)   the cumulative effect of repeated acts of family violence;
c)   rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)   Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non‑citizen's migration status, should the non‑citizen engage in further acts of family violence.
Paragraph 4(1) of the Direction defines ‘family violence’ and ‘member of a person’s family’. A family member “includes a person who has, or has had, and intimate personal relationship with the relevant person” The Tribunal finds that the applicant has committed acts of family violence involving three different women with whom he has had an intimate personal relationship with. In this case paragraphs 8.2(2)(a) and (b) of the Direction are engaged. The applicant has been convicted of 16 offences between March 2020 and February 2024 involving family violence. The Tribunal has not taken into account any evidence relating to allegations of family violence where the applicant has not been afforded procedural fairness. Numerous DVOs have been taken out against the applicant in relation to his family violence offending, one of which remains in place until 2 August 2028 against Ms A and his 2 year old son, A. The DVO relating to Ms V and Ms L expired in June and July 2025 respectively whilst the applicant has been in detention.
The Tribunal has already discussed the very serious nature of the family violence committed by the applicant. The respondent contends, and the Tribunal agrees that the applicant’s offending should be treated by the Tribunal as especially serious because:
·two of his victims were pregnant at the time of two of the violent offences
·a child was present at most of the violent offences;
·the applicant is a professional kickboxer, which arguably means that his punches can cause more serious damage than maybe usual, and he understands the potential harm from punches more than the ordinary person might.[52]
[52] HB1102.
The applicant did give evidence that he regrets the crimes that he committed, however regretting family violence does not amount to accepting responsibility for that conduct and as stated, the Tribunal is not satisfied that the applicant has accepted responsibility for his conduct, he has limited insight into the causes of his offending. He continues to victim blame and minimise the seriousness of his conduct. The applicant commented to child safety that he has been surprised to learn that “Australia takes domestic violence very seriously”.[53] He also told Child Protective Services on 30 May 2024 that he was not the problem, “youse always listen to the mother” and that he was in jail because of “an argument”. Child Protective Services noted that the applicant has continued to deny domestic violence is occurring and he blames the victim or his actions.[54]
[53] HB610.
[54] HB619.
Paragraph 8.2(3)(a) requires an analysis of the frequency of the applicant’s family violence conduct and whether there is any trend of increasing seriousness. The evidence supports a finding that the applicant’s acts of family violence have been frequent and increasingly serious since 2020.
Paragraph 8.2(3)(b) calls for a consideration of the cumulative effects of repeated acts of family violence. As stated above, the applicant’s offending has caused harm to his victims and is likely to have had a negative impact on some of his children. Further his repeated offending has resulted in significant use of public money and resources associated with law enforcement.
Paragraph 8.2(3)(c) requires the Tribunal to consider any rehabilitation achieved by the applicant at the time of his decision since his last known act of family violence. As stated above the applicant regrets his family violence offending but does not accept full responsibility for it, nor does he understand the impact of his behaviour on his victims and witnesses to that violence, particularly his children. The applicant has participated in a number of courses to address the factors which contributed to his family violence offending. However, the courses that the applicant participated in prior to his visa being cancelled in May 2024, did not stop that offending. The evidence that he gave at the hearing did not satisfy the Tribunal that the additional courses he has participated in since May 2024 have in fact addressed the factors which contributed to his conduct and as he has been in prison or detention since he completed those courses whether or not they have had a marked effect or influence upon the applicant remains untested in the community.
Paragraph 8.2(3)(d) instructs the Tribunal to look at whether the applicant has reoffended since being formally warned about the consequences of further acts of family violence, including warnings in relation to his migration status. The initial DVO was served on the applicant as early as February 2020, since then a significant number of DVOs have been served on the applicant which would have contained a warning in relation to the penalties he may receive if he contravened the order. Further in the sentencing remarks of the Magistrate made on 22 October 2020 the applicant was advised that violence in any form, whether it be personal violence, property violence or otherwise is not an acceptable response to any disagreement that he may have. He was advised that he needed some assistance and guidance to ensure that this sort of behaviour did not happen again and that he did not end up back in custody.[55] Accordingly, the Tribunal is satisfied that the applicant committed offences of family violence after being made aware of some of the consequences of further acts of family violence. However, the Tribunal further finds that he received no formal warnings about the impact on his migration status should he engage in further acts of family violence.
[55] HB69-70.
Conclusion for primary consideration 2
As a result of the above analysis and evaluation of the evidence relating to primary consideration 2, the Tribunal finds that the applicant’s family violence considered overall, involving his 3 ex-partner’s and on occasions involving his children is at the high end of seriousness for conduct contemplated by paragraph 8.2 of the Direction. His conduct is objectively serious and the Tribunal has significant doubts about the extent of the applicant’s rehabilitation. Consequently, the Tribunal finds the evidence weighs heavily against revoking the cancellation decision.
Primary consideration 3: the strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Clause 8.3 of the Direction provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non‑citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
With respect to paragraph 8.3(1), the evidence establishes that the applicant’s immediate living family members who are Australian citizens, Australian permanent residents or people who have a right to remain Australia indefinitely are his 4 biological sons referred to above namely; M aged 7, X aged 4, A aged 2 and B aged 11 months.
In the request for revocation form completed by the applicant he names the 5 person L family as family members and he also lists his grandmother as residing in Australia.[56] In his oral evidence the applicant accepted that the McDonald family were close family friends rather than biological relatives. In his personal circumstances form the applicant lists 4 siblings, three with the surname K and 1 with the surname S. He also referred to a number of other relatives in Australia (22 uncles/aunts, 15 nieces/nephews, 16 cousins and 1 grandparent).[57] No evidence was given in relation to the applicant’s grandmother who is purportedly in Australia. The respondent contends and the Tribunal finds that the other people referred to by the applicant are not immediate family members in the accepted sense of that term.
[56] HB91.
[57] HB103.

Paragraph 8.3(2)(a) requires consideration of how long the applicant has resided in Australia, when the applicant began offending and any positive contributions the applicant has made to the Australian community. The applicant has resided in Australia continuously for 9 years, since 24 August 2016.[58] In the applicant’s Request for Revocation form he lists his employment history as; washing operator, banana picking, laundry, cleaning and labouring. He provides no employer details or the period during which he performed that work in his Personal Circumstances Form he lists his employment history as “support duty - South Pacific Country Cairns”, “washer operator” and “support duty - Peace Street Country Cairns”. Again, the applicant does not state the period during which he performed that employment. The evidence does not contain any character references from these employers. There is a character reference from the promoter of Thai boxing and kickboxing events that the applicant has been involved in. He describes the applicant as ‘an integral part of these events, consistently captivating audiences with his exceptional skills and sportsmanship’. He also states that the applicant ‘generously shares his extensive knowledge and experience, inspiring and guiding young athletes’.[59] The applicant gave evidence that he has been coming to Australia to participate in these types of events since 2009.
[58] HB287.
[59] HB131.
The applicant has resided in Australia since August 2016, when he was 26 years of age. He commenced offending soon after arriving in Australia in early 2020, and apart from his periods of employment (which are not clear) he has spent little time contributing positively to the Australian community.
The Tribunal notes that the evidence contains a job offer letter for a senior warehouse operative dated 18 July 2025. The letter states that the applicant has until 14 September 2025 to accept the offer of employment.
Paragraph 8.3(2)(b) refers to the strength, duration and nature of any family or social links with people in Australia and paragraph 8.3(1) requires consideration of the impact upon them should the cancellation decision be affirmed.
The Tribunal accepts that the applicant has some links with at least two of his sons in Australia, M and X. He currently communicates with his sons by telephone and video. He could continue to do that if he was removed to PNG. However, the Tribunal accepts that it may be more difficult for him to do that from PNG, and he would lose the opportunity to strengthen his ties with and have physical contact with those and his other sons in Australia. The Tribunal also accepts that the applicant has made a number of close friends in Australia and there would be some adverse impact upon them should the cancellation decision be affirmed
Conclusion for primary consideration 3
With respect to consideration 3, the following factors weigh against the applicant:
·He did not arrive in Australia as a young child.
·He began offending soon after arriving in Australia.
·He has not spent a lot of time contributing positively to the Australian community.
The following factors weigh in favour of the applicant:
·He has had paid employment, and he has a firm offer of employment if the cancellation decision is revoked.
·He has provided some character references from friends and associates vouching for his dedication to the church and his good character.
·He has some links with some members of his immediate family and some close friends who on the evidence are either Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Tribunal finds that on balance consideration 3 weighs moderately in favour of revoking the cancellation decision.
Primary consideration 4: best interests of the minor children in Australia affected by the decision
Paragraph 8.4 of the Direction requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under paragraph 8.4, the Tribunal must make a determination about whether cancellation or refusal under s 501 of the Act is or is not in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.
Paragraph 8.4(4) of the Direction outlines the factors that a decision‑maker must consider when determining the best interests of a child affected by the decision where relevant. Those factors include:
·the nature and duration of the relationship between the child and the non-citizen, noting less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;
·the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any court orders relating to parental access and care arrangements;
·the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have, a negative impact on the child;
·the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·whether there are other persons who already fulfil a parental role in relation to the child;
·any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
·evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.[60]
[60] The Direction, paragraph 8.4(4)(a)–(h)
The evidence is that there are 4 minor children in Australia that relevant to this consideration, namely:
·the applicant’s son, M, 7 years old.
·The applicant’s son, X, 4 years old.
·the applicant’s son, A, 2 years old.
·the applicant’s son, B, 11 months old.
M, 7 years old
The applicant has put his son, M, at serious risk of harm on at least one occasion (in March 2020). M was in the car that his mother, Ms L, was driving whilst the applicant was driving in a reckless and intimidatory manner towards them. There have been 3 DVOs put in place against the applicant preventing him from contacting Ms L or M (without her consent). The most recent DVO expired on 22 July 2025 whilst the applicant was in detention. M has always resided with his mother and continues to do so. She has 100% care of him. The applicant does not currently play any significant parental role in M’s life. Prior to his incarceration, the applicant did not reside with or near M. The applicant gave evidence that he currently speaks to M on a regular basis which he could continue to do if he was returned to PNG. He could also provide financial support to M if he returned to PNG and obtained employment. The Tribunal does accept that if the cancellation decision is not revoked this will adversely affect the opportunity for the applicant to have physical contact with M and he will lose the opportunity to develop a closer and more positive parental relationship with the applicant in the future. However the Minister contends, and the Tribunal agrees that when considering the best interests of M, this consideration weighs only slightly in favour of revocation.[61]
[61] HB1104.
X, 4 years old
The applicant also put his son, X, at serious risk of harm on at least one occasion (in June 2020). The applicant committed serious domestic violence against Ms V whilst she was pregnant with X. When X was born, X was placed into state care because both Ms V and the applicant were considered to be not willing and able to protect X from harm due to Ms V’s intellectual disability and due to the applicant’s history of domestic violence perpetration. The respondent submits and the Tribunal agrees that the materials summonsed from Child Protective Services demonstrates that:
·X was taken into state care from birth.
·The applicant was afforded with the opportunity to have supervised access visits with X but was apathetic towards this opportunity.
·The applicant was initially afforded access for two hours on a weekly basis. The applicant then asked for this to be reduced to one hour of access on a weekly basis. The applicant then asked for this to be reduced to one hour of access on a fortnightly basis.
·The applicant regularly cancelled or failed to show up to scheduled access visits.
·The applicant continued to abuse alcohol and commit domestic violence offending, despite warnings from Child Protective Services that this would adversely affect any reunification plans with X.
·The applicant was suspended from having access to X in 2023.
·The applicant did not have any contact with X for long periods whilst he was in the community (i.e. not in prison or detention).
·Child Protective Services have applied for a ‘long term care order’ in respect of X, which would place him in the care of his foster parents until the age of 18, because Child Protective Services are of the view that it is extremely unlikely that the applicant will ever be in a position of being an appropriate person to have custody of X due to his propensity to family domestic violence.[62]
[62] HB1104-1105.
The applicant provided a letter from Legal Aid Queensland dated 3 June 2025.[63] That letter confirms the applicant’s instructions to oppose the applicant made by the Director of Child Protection Litigation for a child protection order granting long-term guardianship to the Chief Executive of Child Protective Services in relation to X. The letter also states that the matter had been adjourned for mention on 25 July 2025. The applicant gave evidence that the application has been further adjourned pending his release from detention.
[63] HB1131-1132.
The evidence is that X has been placed in the care of the same foster mother he has had since birth and that he continues to see his biological mother Ms V, who has a NDIS support worker, on a reasonably regular basis. The applicant gave evidence that he speaks to X every Sunday. The applicant has not in the past and does not currently play a significant parental role in X’s life and the Tribunal accepts the respondent’s submission that it is unlikely he will do so in the future. If he is removed to PNG, the applicant can continue to have regular phone and/or video contact with X. However, the Tribunal does accept that a refusal to revoke the cancellation decision would adversely affect the opportunity for X to develop a closer relationship with the applicant in the future. The respondent contends and the Tribunal finds that when considering the best interests of X, this consideration weighs slightly in favour of revocation of the cancellation decision.[64]
[64] HB1105.
A, 2 years old
Once again, the applicant has put his son a at an extreme risk of harm on at least one occasion (in June 2023). The respondent submits and Tribunal agrees that the applicant has committed serious domestic violence against A’s mother, Ms A whilst I was present and in the ‘firing line’ of the violence.[65]
[65] HB1105.
There have been a number of DVOs put in place preventing the applicant from contacting Ms A and his son, A. There is a current DVO in place that does not expire until 2 August 2028.
The applicant gave evidence that his contact with A is limited due to the existence of the current DVO. A has always resided with his mother and continues to do so. The applicant does not currently play any significant parental role in A’s life, and it will be very difficult to do so given the presence of the DVO. The respondent submits and the Tribunal finds that a non-revocation decision would adversely affect the opportunity for the applicant to develop a relationship with A in the future, but when considering the best interests of A, this consideration weighs only slightly in favour of revocation.[66]
[66] HB1105.
B, 11 months old
B was born whilst the applicant was in prison for domestic violence offences against B’s mother, Ms A. Ms A was pregnant with B at the time of the applicant’s domestic violence offending in February 2024. The applicant gave evidence that he has never met B. He has never had the opportunity to play a parental role in B’s life. B has always resided with his mother, Ms A. This is likely to continue given the DVO is in place with respect to Ms A and B’s brother A. Once again, the respondent submits and the Tribunal finds that a refusal to revoke the cancellation decision will adversely affect the opportunity for B to develop a relationship with his father in the future, but when considering the best interests of B, this consideration weighs only slightly in favour of revocation.[67]
[67] HB1105.
Conclusion for primary consideration 4
The Tribunal finds that the applicant does not currently have a close relationship with any of his children but that he would like to be more involved in their lives and support them. Whilst a non-revocation decision will affect the applicant’s ability to have any physical contact with his children, he does have the ability to maintain contact with them via telephone or video call. All children have been subjected to family violence perpetrated by the applicant in some way and all of them have other persons who already fulfil a parental role for them. Overall, the best interests of the applicant’s minor children in Australia weighs slightly in favour of the cancellation decision being revoked.
Primary consideration 5: expectations of the Australian community
This consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state 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 would not allow them to enter or remain in Australia.
Paragraph 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. This includes an expectation that a visa should be cancelled if they raise serious character concerns because of acts of family violence.
Paragraph 8.5(3) of the Direction further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future. The Tribunal has found that the applicant has committed offences acts of family violence and serious crimes against women, including one who was a vulnerable member of the community due to her intellectual disability and further that his children have been exposed to the family violence he has committed against their mothers. This raises serious character concerns of conduct referred to in this paragraph 8.5(2)(a) and (c) of the Direction. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision-makers are required to consider are those set out in the Direction.[68] It is the Tribunal’s role to determine what weight is to be attached to the expectations set out in the Direction.
[68] See FYBR v Minister for Home Affairs [2019] FCAFC 185
The Tribunal finds that the applicant’s family violence offending raises serious character concerns. He arrived in Australia in 2016, at the age of 26 and commenced offending in 2020. Further the inherent nature of the applicant’s family violence offending is very serious, and the Tribunal finds that he presents a measurable risk of causing further physical harm. As a result, the Australian community, expects the Government not to allow him to remain in Australia.[69]
Conclusion for consideration 5
116.Overall, the Tribunal finds that primary consideration 5, relating to the expectations of the Australian community, weighs heavily against the Tribunal revoking the cancellation decision.
OTHER CONSIDERATIONS
[69] See paragraph 5.2 of the Direction.
Other consideration 1: legal consequences of the decision
Paragraph 9.1(1) of the Direction requires the Tribunal to be mindful that unlawful non-citizens are liable to removal from Australia as soon as reasonably practicable and in the meantime, they are in detention.
In the applicant’s Personal Circumstances Form he says that due to tribal fighting which resulted in the deaths of his biological mother in 2016 he fears that his life is in danger of death and harm.[70]
[70] HB107.
On 29 July 2024 a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa under s 65 of the Act. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations. The applicant applied to the Tribunal for review on 30 August 2024. On 1 October 2024, the Tribunal found that the applicant does not face a real chance of persecution in PNG in the reasonably foreseeable future on account of his mother’s death or from any rival tribe. The Tribunal was not satisfied that the applicant is a person in respect of whom Australia has protection obligations and it affirmed the decision not to grant the applicant a protection visa.[71]
[71] See BCC2019/6953458.
The applicant appealed the Tribunal’s decision to the Federal Circuit and Family Court of Australia (Division 2). That application was dismissed on 11 June 2025.[72]
[72] See BRG77//2024.
In the case of Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 27; (2022) 275 CLR 582 (Plaintiff M1). The High Court relevantly held at [9] that, while the delegate was required to read, identify, understand and evaluate the plaintiff’s representations raising a potential breach of Australia’s international non-refoulement obligations, it was open to the delegate to defer assessment of those obligations (to the extent that they were given effect in the Act) on the basis that the plaintiff was able to make an application for a protection visa.[73]
[73] PLCP v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 398 at [42].
In Plaintiff M1, the applicant claimed that he would face persecution torture or death if he were returned to South Sudan. The majority of the High Court held that the delegate had read and understood those claims, and that there was a “reasonable and rational justification” for not giving weight to potential non-refoulement obligations on the basis that they could subsequently be assessed “in accordance with the specific mechanism chosen by Parliament for responding to protection claims in the form of protection visa applications”: Plaintiff M1 at [38] (Kiefel CJ, Keane, Gordon and Steward JJ); see also at [43], [47] (Gageler J). The plurality also expressly disapproved a number of prior decisions of the Federal Court in which it had been held that the decision-maker had acted unreasonably by deferring an assessment of non-refoulement obligations to a potential protection visa application.[74]
[74] Ibid at [53]

In the case of PLCP v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCA 398, Horan J said that in his view:
the decision in Plaintiff M1 is authority for the proposition that a decision-maker under s 501CA(4) of the Migration Act can consider representations made by a former visa holder raising a potential breach of international non-refoulement obligations by adopting an approach of deferring the assessment of those obligations to a subsequent protection visa application process, at least in circumstances where it is possible for the former visa holder to make an application for a protection visa. However, although the existence of international non-refoulement obligations is not itself a mandatory relevant consideration in the exercise of power under s 501CA(4), the decision-maker may still be required to address whether the underlying facts (that is, the claimed harm or hardship that would be faced by the person on his or her return to the country in question) provide a reason to revoke the cancellation decision.
The Tribunal has considered the issues of fact raised by the applicant’s representations relating to his fear of harm or death upon return to PNG because of tribal fighting in the high lands in which his family has been implicated and as a result of which his mother was killed. Those protection claims have already been fully considered in separate judicial proceedings. The Tribunal is of the view that the claimed harm or hardship that the applicant says he will face upon his return to PNG has already been considered in accordance with the specific mechanism chosen by Parliament for responding to protection claims in the form of protection visa applications. The evidence the applicant relies upon in support of his claim that he returns to PNG he will face a real chance of serious harm from rival tribes or clans on account of his mother’s death was critically analysed by the Tribunal in the application for review of the Minister’s decision to refuse to grant him a protection visa. That decision was affirmed by the Tribunal and his appeal to the Federal Circuit and Family Court of Australia (Division 2) was dismissed. If the applicant seeks to take the matter further, he should consider any forms of appeal that may be available to him.
At the hearing, the applicant raised an additional claim with respect to fear of harm from the family of the mother of his 2 children in PNG because they are angry that he left them in 2016. Apart from the applicant’s oral evidence about this, there was no evidence in support of those allegations. The evidence contains a statement dated 13 June 2024 from the mother of his two children who reside in PNG and although she refers to the potential harm to the applicant as a result of tribal fighting, she makes no mention of any potential harm to him from her family. In her letter she states:
So I strongly requested for him not to return yet because I don’t want my sons to grow up without a dad. They missed him for 8 years now, only they see on video calls, but his presences is greatly missed. Also he supports them in whatever way he can do best while living in Australia. Because of this conflict and my sons grow up without a father but his safety is important. One day when my sons hope to see their father again.[75]
[75] HB226
That letter expresses no anger from the mother of the applicant’s 2 children in PNG, in fact she says that the applicant supports them, she does not want her sons to grow up without a father and she hopes they will see him again. She says that she and her sons are living with her brother and makes no mention of him or any other member of her family wishing to harm the applicant.
In closing, the respondent submitted that the Tribunal should give no weight to the applicant’s claim that he returned to PNG he what be harmed by the family of the mother of his two children residing in PNG. The respondent submitted that the applicant failed to make any mention of this potential harm in his application for a protection visa made on 31 December 2019, that was reviewed by the Tribunal at a hearing that took place on 12 September 2024. The respondent also submitted that this evidence was inconsistent with other evidence before the Tribunal which indicated that the applicant had frequent contact when his children and their mother in PNG. He had been sending them money and if he remained in Australia, he was seeking to sponsor them to travel to Australia so that his children could attend school on the Gold Coast and their mother could enrol at TAFE to study Aged Care to enable her to obtain employment in that sector. The respondent submitted that this new claim of fear of harm from the family of the mother of his 2 children in PNG was fabricated to bolster his case that there is another reason why he should not return to PNG.
Applying the decision in PlaintiffM1, the Tribunal has read, identified, understood and evaluated the plaintiff’s limited representations raising a potential breach of Australia’s international non-refoulement obligations. The Tribunal has significant doubts about the veracity of this new claim and defers the assessment of those obligations on the basis that the plaintiff is able to make an application for a protection visa in which this new claim may be raised.
The Tribunal accepts that if the decision to cancel the applicant’s visa is not revoked, the applicant will be liable to be removed from Australia as soon as reasonably practicable, returned to PNG, prohibited from applying for another visa or subjected to periods of exclusion and special return criteria.[76] While that is the intended consequence of s 501 of the Act, the effect of the decision on the applicant is significant.
[76] ss 189,196,197C,198, 501E, 501F of the Act.
Conclusion: other consideration 1
Other consideration 1, attracts moderate weight in favour of revoking the cancellation decision.
Other consideration 2: Extent of impediments if removed
Paragraph 9.2 of the Direction provides that taking into account the matters identified in 9.2(1)(a), (b) and (c) of the Direction, the Tribunal must consider the extent to which the applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters to be identified are:
·the applicant’s age and health;
·whether there are substantial language or cultural barriers; and
·any social, medical and/or economic support available to the applicant in their country.
The applicant is 35 years of age, and he has no diagnosed medical or psychological conditions. Accordingly, the applicant’s age and state of mental and physical health are not impediments to his return to and re-settlement in PNG. He would be eligible for healthcare in PNG in line with general citizenry.[77]
[77] HB1107.
The applicant was born in PNG. He went to school until grade 9 and worked there as a subsistence farmer and in security. He was also involved in professional kickboxing. As he grew up in PNG, he is familiar with the culture there. He has no problems with the language, he speaks fluent Tok Pisin and reasonable English. The applicant has a history of engagement with employment in both Australia and PNG. Given his age and work experience, he should be able to find work in PNG.
The respondent acknowledges, and the Tribunal agrees, that the applicant may face some short-term practical, financial and emotional hardship upon his return to PNG, due to his period of absence of 9 years and due to his mother having passed away during that time.[78]
[78] HB1107.
The applicant appears to have a good relationship with his two children and their mother who live in PNG. He apparently has 2 siblings that continue to reside in PNG. Accordingly, the applicant does have some family ties in PNG. If removed to PNG, he should be able to re-establish his ties and contacts in that country. The respondent contends and the Tribunal agrees that there may be some benefit to the applicant’s 2 eldest children if he returned to PNG as they would be given the opportunity to be reunited with their father.
Conclusion: other consideration 2
Whilst there are no substantial language, cultural, medical, social or economic barriers impeding the applicant’s return to and re-settlement in PNG, the Tribunal accepts nonetheless that this other consideration does attract slight weight in favour of revoking the cancellation decision.
Other consideration 3: Impact on Australian business interests
Paragraph 9.3 of the Direction provides that the Tribunal must consider any impact on Australian business interests if the applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under s 501CA of the Act would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The only business interests which could be affected by the applicant’s removal would be those of his kickboxing promoters, as he will not be able to participate in any promoted fights and he would not be able to take up the employment that has been offered to him as a senior warehouse operative based in Queensland. The applicant has been unable to participate in any kickboxing events since he has been in prison and detention since February 2024. Further, neither that work or the job that the applicant has been offered would significantly compromise the delivery of a major project or an important service in Australia.
Conclusion: other consideration 3
As there is no impact on Australian business interests as described by the direction, other consideration 3 should be afforded neutral weight.
CONCLUSION
The applicant does not pass the character test under s 501 of the Act. The Tribunal has therefore considered whether there is ‘another reason’ why the cancellation decision should be revoked, having regard to the primary and relevant other considerations in the Direction.
Paragraph 7 of the Direction sets out the way in which the relevant considerations are to be taken into account and weighed.
There has been extensive judicial consideration of how the exercise of weighing and evaluating the considerations contained in the relevant Ministerial Directions is to be undertaken. Recently, the Full Court of the Federal Court considered the operation of Direction 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[79] While the court considered a different Direction, the observations apply to the Direction. The court found that the Tribunal must weigh the various primary and other relevant considerations outlined in the Direction against each other and undertake an evaluation of whether there was ‘another reason’ why the cancellation should be revoked.[80]
[79] [2023] FCAFC 138.
[80] At [35].
In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by the Direction. The Tribunal has ascribed weight to each of the primary and other relevant considerations under the Direction and explained the basis upon which it has assessed the weight to be given to each consideration. The Tribunal has gone on to compare and balance all the considerations to determine whether the cancellation decision should be revoked.
The Tribunal has considered all the primary considerations, including the protection of the Australian community. The Tribunal finds that:
·the protection of the Australian community weighs heavily against revocation of the cancellation decision.
·the consideration of family violence also weighs heavily against revocation of the cancellation decision
·the strength, nature and duration of the applicant’s ties to Australia weighs slightly in favour of revoking the cancellation decision.
·the best interests of the children identified as being impacted by the decision weighs slightly in favour of revocation of the cancellation decision.
·the expectations of the Australian community weighs heavily against revocation of the cancellation decision.
·the legal consequences of the decision weigh moderately in favour of revocation of the cancellation decision.
·the extent of impediments if removed weighs slightly in favour of revocation of the cancellation decision.
·the impact on Australian businesses weighs neutrally in the applicant’s case.
The Tribunal has placed very heavy weight on the first, second and fifth primary considerations. The Tribunal is satisfied that the heavy weight afforded to the first, second and fifth primary considerations against revocation carries much greater weight than the weight given to the remaining primary and other considerations in favour of revocation.
In summary, having regard to all the primary considerations and other considerations in the Direction, the Tribunal is not satisfied that there is another reason why the cancellation decision should be revoked. As a result, the correct or preferable decision is to affirm the reviewable decision.
Decision
The decision not to revoke the cancellation of the applicant’s visa is affirmed.