JZQQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

JZQQ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2998 (29 August 2022)
Division:GENERAL DIVISION
File Number: 2022/4674
Re:JZQQ
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member C. J. Furnell
Date:29 August 2022
Place:Melbourne

The Tribunal affirms the decision under review.
.........................[SGD]...............................................
Senior Member C. J. Furnell
Catchwords
MIGRATION – mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa – Migration Act 1958 (Cth) ss 501(3A) and 501CA – New Zealand – Applicant does not pass character test – substantial criminal record – whether there is another reason why mandatory cancellation should be revoked – Direction 90 – primary and other considerations – decision under review affirmed
Legislation
Acts Interpretation Act 1901 (Cth)
Migration Act 1958 (Cth)
Cases
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
Frugtniet v Australian Securities and Investments Commission [2019] HCA 16
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
Hughes v R [2017] HCA 20
Kayo Rerekura and Minister for Home Affairs [2019] AATA 153
Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Home Affairs v Buadromo (2018) 267 FCR 320
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
PQSM v Minister for Home Affairs [2019] FCA 1540
Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409
Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545
Secondary Materials
Direction No 90 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
‘Family violence safety notices’, Victoria Legal Aid (Web Page, 12 April 2022) < FOR DECISION
Senior Member C. J. Furnell
29 August 2022

In this proceeding, the issue is whether a decision to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) visa ought to be revoked. Under the Migration Act 1958 (the Act), the Tribunal can only do this if it is satisfied of one of two things.
For the reasons which follow, I am not satisfied of either of those things. Hence, the Tribunal affirms the decision the subject of review.
Procedural Background
On 1 September 2021, the applicant was convicted of intentionally causing injury and making threats to kill and was sentenced to an aggregate term of imprisonment of 15 months.[1]
[1] G4, pp.34-73. References to “G” are references to documents provided by the Respondent under s 501G of the Act, known as “G”-Documents.
On 20 September 2021, the applicant’s visa was subject to mandatory cancellation[2] (the visa cancellation decision). The cancellation was mandatory because, under s 501(3A) of the Act:
(a)A delegate of the Minister was satisfied that the applicant did not pass the character test set out in s 501 of the Act because he had a substantial criminal record,[3] having been sentenced to a term of imprisonment of 12 months or more;[4] and
(b)The applicant was then serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of an Australian State.
[2] G5, pp.74-80.
[3] As defined in the Act, s 501(7).
[4] Act, s 501(7)(c).
The applicant sought to have the visa cancellation decision revoked, making representations about revocation in response to, and in accordance with, the requisite invitation to do so.[5]
[5] Act, s 501CA(3). See G8-G10, pp.85-95.
As a result, under s 501CA of the Act, the respondent became obliged (or became vested with a discretion)[6] to revoke that decision if satisfied either that the applicant passed the character test or that there was another reason why the visa cancellation decision should be revoked.[7]
[6] See Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338 at [38]; Minister for Home Affairs v Buadromo (2018) 267 FCR 320 at [21]. See also Derrington J in Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 but cf Katzmann J in the same case at [3]-[6]. Lastly, see Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125 at [55]-[61] per Derrington J but cf [82]-[96] per O’Sullivan J.
[7] Act, s 501CA(4).
On 1 June 2022, a delegate of the respondent decided not to revoke the visa cancellation decision (the non-revocation decision).[8]
[8] G2, p.12.
On 7 June 2022, the applicant applied to the Tribunal for review of the non-revocation decision.[9]
[9] G1, p.1.
In conducting that review, the Tribunal performs the same function and exercises the same power as the primary decision-maker.[10] As such, in this proceeding, the task for the Tribunal is to decide whether it is satisfied that the applicant passes the relevant character test or that there is another reason why the visa cancellation decision should be revoked.
[10] Frugtniet v Australian Securities and Investments Commission [2019] HCA 16 at [14], [15] and [51].
I am not satisfied of either of those things.
I will outline my reasons for not being so satisfied shortly. Before doing so, however, mention should be made of some aspects of the factual context and of the material which was before the Tribunal in this proceeding.
Aspects of factual context
The applicant was born in Somalia in October 1974. He fled a civil war, going to Kenya in 1991 where he remained for around 13 years. There he married his first wife (Wife A) who, in June 1999, gave birth to the applicant’s first son (Son A).
Wife A and Son A went to New Zealand where, in September 2000, Wife A gave birth to the applicant’s second son (Son B).
In 2004, the applicant was granted refugee status in New Zealand. He then re-joined wife A and his two sons, living with them for three or four months.
In 2005, the applicant and Wife A divorced.
Wife A, Son A and Son B moved to Australia in 2006, living in Brisbane.[11]
[11] In oral evidence, the applicant stated that Wife A and his sons moved to Brisbane in 2005 or 2006. Son B’s evidence was that the move took place in 2006.
In 2008, the applicant married his second wife (Wife B).
The applicant became a citizen of New Zealand.
In 2010, Wife B gave birth to a daughter (Daughter A).
In 2011, the applicant (aged 36) moved to Australia, living in Perth where Wife B and Daughter A subsequently joined him.
Shortly after arriving in Australia, the applicant spent several months working in Townsville and two or three days living with his sons in Brisbane, before returning to Perth.
In 2014, the applicant separated from Wife B after agreeing to look after his sons in Brisbane when Wife A went on holiday for around eight weeks.
The applicant has not seen Daughter A since 2015.
In 2015, the applicant spent some months in Kenya, visiting his father who was unwell.
On returning to Australia, the applicant lived primarily in Victoria, albeit he spent some time in a town in New South Wales near the border with Queensland. When working in that town he would, on weekends, visit Son A and Son B in Brisbane.
On the applicant’s behalf it is said that from 2016 he “… worked as a slaughter person at a Halal abattoir in [Victorian town]. After several years of this work, he attempted to gain employment as a heavy vehicle truck driver but failed and after two attempts started to drive Uber. After saving enough money, …[the applicant] purchased a taxi and obtained a taxi license to work as a taxi driver. He worked in this capacity from 2018-2020.”[12]
[12] G9, p.91.
In 2018, the applicant met a person called in these reasons Partner A. The applicant and Partner A commenced an intimate relationship in 2019 when they came to live under the one roof.
The year 2020 was, according to the applicant, the worst year of his life.[13] His father died, he injured a finger, he was having troubles earning a living given the Covid-19 pandemic restrictions which severely constrained travel in Melbourne and Partner A suffered a miscarriage.
[13] G11, p.101.
Consequent on certain offending in late December 2020 (which is described later), the applicant was placed on remand on or around 23 December 2020. He has been in prison or detention since then.
MATERIAL BEFORE THE TRIBUNAL
In endeavouring to undertake the task entrusted to the Tribunal in this proceeding, I have had regard to the submissions made at and before the hearing,[14] evidence adduced at the hearing,[15] and to certain documentary material lodged with the Tribunal prior to the hearing.
[14] In terms of submissions made before the hearing, reference is made to the Respondent’s Statement of Facts, Issues and Contentions of 29 July 2022 (R SFIC).
[15] As for evidence adduced at the hearing, the Tribunal heard from the applicant, Son A and Son B.
That documentary material comprised:
(a)Documents provided by the respondent under s 501G of the Act (which I refer to as the “G” documents);
(b)A compiled bundle of summons and other material lodged with the Tribunal by the respondent (which I refer to as the “TB” documents);
(c)An unsigned statement of 5 August 2022 of Son A (which Son A stated was from both him and Son B); and
(d)An email from the applicant of 6 August 2022.
Does APPLICANT Pass the Character Test?
The character test is set out in s 501(6) of the Act. Under that section, a person is considered not to pass the test if any of a number of circumstances applies in relation to the person. One such circumstance is when the person has a substantial criminal record.[16] The applicant has such a record. As will soon be seen, he has been sentenced to a term of imprisonment of 12 months or more.[17]
[16] Act, s 501(6)(a).
[17] Act, s 501(7)(c).
As I am not satisfied that the applicant passes the character test, the visa cancellation decision can only be revoked if I am satisfied that there is another reason why it should be revoked.
Is there another reason why the cancellation decision should be revoked?
As is clear from my decision in this proceeding, I am not satisfied that there is such a reason.
In arriving at that state of non-satisfaction, I have endeavoured to comply with (and am bound by s 499 of the Act to comply with) an instrument entitled “Direction No 90 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90).[18]
[18] Direction 90 imposes requirements that are a precondition for the making of a valid decision: PQSM v Minister for Home Affairs [2019] FCA 1540 at [22] per Colvin J. “Its role is to act as a guide to the exercise of the identified powers”: see BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 at [22]. As guidance, it is up to the Tribunal to determine what is relevant in the circumstances of the case: see Matthews v Minister for Home Affairs [2020] FCAFC 146 at [45].
Compliance with Direction 90 requires that I consider whether to revoke the visa cancellation decision “given the specific circumstances of the case.”[19] Direction 90 is not, however, “…an exhaustive universe; it refers to matters that a decision-maker must consider but does not confine what may be taken into account…”.[20]
[19] Direction 90, cl 5.1(3).
[20] Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104 at [45], citing Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 at [16]. See also BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 at [23] as to the position under Direction 90.
That consideration is to be undertaken informed by,[21] and in the context of a framework comprised of,[22] certain principles.
[21] Direction 90, cl 6.
[22] Direction 90, cl 5.2.
Those principles are set out in cl 5.2 of Direction 90. They are as follows:
“5.2      Principles
(1)      Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)       Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)       The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4)       Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age
(5)       Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.”
I turn now to the considerations which (to the extent that they are relevant) I am required by Direction 90 to take into account in deciding whether to revoke the visa cancellation decision.[23]
[23] Direction 90, cls 5.2, 5.2(5) and 6.
Considerations – Overview
The relevant considerations are those set out in clauses 8 and 9 of Direction 90. They are divided into primary considerations and other considerations.
The primary considerations are protection of the Australian community from criminal or other serious conduct; whether the conduct engaged in constituted family violence; the best interests of minor children in Australia; and expectations of the Australian community.[24]
[24] Direction 90, cl 8.
The other considerations include (but are not limited to) international non-refoulement obligations; extent of impediments if removed; impact on victims; and links to the Australian community (including strength, nature and duration of ties to Australia and impact on Australian business interests).[25]
[25] Direction 90, cl 9(1).
The primary considerations are generally to be given greater weight than the other considerations;[26] and one or more primary considerations may outweigh other primary considerations.[27]
[26] Direction 90, cl 7(2).
[27] Direction 90, cl 7(3).
While primary considerations are generally afforded more weight than the other considerations, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[28] However, in order for an “other consideration” to be afforded more weight than a primary consideration “…there must be some identified reason, in the particular circumstances, as to why it is appropriate for the particular ‘other consideration’ to be given greater weight than one or more of the three primary considerations.”[29]
[28] Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303 at [32].
[29] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [11].
In taking considerations into account, “appropriate weight” is to be given to information and evidence from independent and authoritative sources.[30]
Protection of the Australian community[31]
[30] Direction 90, cl 7(1).
[31] Direction 90, cl 8.1.
I turn now to the first of the primary considerations, the protection of the Australian community from criminal or other serious conduct.
This consideration is one that requires the Tribunal to keep in mind the Australian Government’s commitment to the protection of the Australian community from harm as a result of such conduct by non-citizens, with particular regard being required to be had to the first of the framework principles previously identified (i.e. the principle about how there is a particular expectation engendered when conferring on non-citizens the privilege of entering and remaining in Australia).[32]
[32] Direction 90, cl 8.1(1).
Taking this primary consideration into account requires that regard be had to two subsidiary considerations. They are, in the circumstances, the nature and seriousness of the applicant’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct.[33]
Nature and seriousness of conduct[34]
[33] Direction 90, cl 8.1(2).
[34] Direction 90, cl 8.1.1.
As for the nature of the applicant’s offending to date, it essentially comprises convictions for making threats to kill and intentionally causing injury for which the applicant was, on 1 September 2021, sentenced to an aggregate term of imprisonment of 15 months.[35]
[35] In 2011, the applicant was convicted in Western Australia of possessing a prohibited drug and fined $1000.That offence is said to have related to a substance called “Qat”, a product widely used in parts of Africa and one which the applicant is said not to have realised was, in Western Australia, an illicit substance (unlike, apparently, Victoria): see R SFIC [38].
Those convictions arise out of events that occurred in the evening of 22 December 2020 and on the following morning. Those events are described in a transcript of proceedings in the Melbourne Magistrates’ Court on 1 September 2021.

In that transcript, Partner A is said to have attended at the applicant’s address at around 5.30pm on 22 December 2020. The applicant had been drinking “…and became increasingly paranoid …[Partner A] was cheating on him…”. At around 8pm, the applicant:
“…was struggling with the victim on a bed located in his bedroom. He pushed the victim into the drywall next to his bed causing it to crack inwards. The offender then pushed the victim back into the bed and choked her with both hands. The victim struggled to breathe and nearly passed out. The victim pushed the offender off her and he fell due to his level of intoxication. The victim struggled free from the offender and grabbed a beer bottle in an attempt to defended herself. This angered the offender and he again wrestled with her. The offender then punched the victim multiple times to her right cheek, her eyes and her forehead causing bruising and swelling to the victim's face. The offender then lit a cigarette and placed it on the victim's head, causing the victim's hair to burn.”[36]
[36] G4, p.41.
At around midnight, the applicant:
“…bit the victim on her right forearm and her left ear causing bleeding and bruising… The offender continued to verbally abuse the victim until 6 am. The victim called the offender 'a pussy' and told him that they should take the fight outside if an effort to escape the bedroom. The victim then ran outside and the offender chased her, throwing footwear at her as she did. The victim ran behind a vehicle parked on the street, using it as a barrier between her and the offender. The offender chased the victim to the car and threatened to kill her, stating, ‘I'll kill you. I changed your faith, you're not beautiful.’"[37]
[37] G4, p.42.
A Victorian Forensic Medical Officer:
“…documented the victim's injuries as follows: a large circular bruise in the middle of her forehead; a linear abrasion at the right temple; a small abrasion to the right side of the forehead; blue-purple bruising below the right ear near the angle of the jaw; linear bruising on the right side of the neck behind the strap muscle; horizontally oriented linear bruise at the base of her neck; bruising throughout the right ear with dried blood at the beginning of the ear canal; right eye subconjunctival haemorrhage - which is bleeding into the white of the eye; swelling and bruising surrounding the white eye; swelling and bruising around the left; bruising to the left ear; horizontally orientated abrasion over the bridge of the nose; an abrasion swelling under the chin; an abrasion to the right side of the jaw; petechial bruises on the roof of her mouth; an area of swelling and tenderness over the back of her scalp; a circular purple bruise with lighter surrounding present on the left upper chest; small dot abrasions over the back of the right-hand; small dot abrasions over the back of the left-hand; a series of combinations of abrasions or laceration wounds with surrounding bruises; and bruising and swelling in an ovoid pattern around the right forearm.”[38]
[38] G4, pp.43-44.
That medical officer is said to have opined that:
“…the prevalence of injuries to the head when compared with the other regions of the body suggested that the injuries were caused by multiple blows to the head, and that the various bruises around the neck were the result of blunt force trauma. In addition to the right subconjunctival haemorrhage, these injuries were consistent with the victim having been choked.”[39]
[39] G4, p.44.
As for the seriousness of the applicant’s offending, I find it to have been very serious.
That the applicant’s offending was very serious has been acknowledged on behalf of the applicant. At his sentencing, counsel for the applicant said it is “…conceded that the level of seriousness of this offending is quite serious in grade….”[40] and that “…this one's obviously very very serious.”[41] In submissions made on behalf of the applicant, it is said to be “…acknowledged that the offences to which the …[applicant] pleaded guilty in the Magistrates Court are both serious. It is further agreed that the circumstances of the intentionally cause injury charge are a serious example of this type of offending.”[42] Further, it is said that the applicant “…has always accepted that his offending was serious”.[43]
[40] G4, pp.53-54.
[41] G4, p.64.
[42] G9, p.89.
[43] G10, p.94.
The seriousness of the offending is reflected in the sentencing remarks of the presiding Magistrate. His Honour characterised what was before him as “… significant violence… The seriousness of the offending … is very serious…”.[44]
[44] G4, p.66.
Finding the applicant’s offending to have been very serious is consistent with an assessment of that offending having regard to factors to which I am required by Direction 90 to have regard. I turn now to a consideration of those factors.
Without limiting the range of conduct that may be considered very serious, the Australian Government and the Australian community view as very serious certain crimes and conduct, including violent crimes, crimes of a violent nature against women and acts of family violence[45]
[45] Direction 90, cl 8.1.1(1)(a).
A finding that the applicant’s offending was very serious reflects the view which the Australian Government and the Australian community are said in Direction 90 to have. As is apparent from the description earlier of that offending, it involved crimes of violence, crimes of a violent nature against a woman and acts of family violence (a point to which I will return).
Without limiting the range of conduct that may be considered serious, the Australian government and the Australian community consider to be serious certain crimes and conduct[46]
[46] Direction 90, cl 8.1.1(1)(b).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
With the exception of certain crimes and conduct (such as crimes of a violent nature against women and acts of family violence), the sentence imposed by the courts for a crime or crimes[47]
[47] Direction 90, cl 8.1.1(1)(c).
As mentioned earlier, the applicant was sentenced to an aggregate term of imprisonment of 15 months.
In this regard, the imposition of any term of imprisonment reflects a view that the offence concerned was serious; “…[c]ustodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s)….”,[48] noting that sentences “…involving terms of imprisonment are the last resort in the sentencing hierarchy…”.[49]
[48] Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409 at [34].
[49] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
Nevertheless, I do not consider this factor to be of relevance in this proceeding given that the applicant’s offending (including his having made threats to kill) involved crimes of a violent nature against women and acts of family violence.
The frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness[50]
[50] Direction 90, cl 8.1.1(1)(d).
Given that the applicant’s offending involved, essentially, a one-off incident (albeit occurring over a sustained period of around 12 hours), it could not be considered to be frequent or reflective of any trend of increasing seriousness. This does not, however, detract from the conclusion that the applicant’s offending was very serious, given the circumstances of that particular incident (as earlier described).
The cumulative effect of repeated offending[51]
[51] Direction 90, cl 8.1.1(1)(e).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending[52]
[52] Direction 90, cl 8.1.1(1)(f).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour)[53]
[53] Direction 90, cl 8.1.1(1)(g).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
Risk to the Australian community should Applicant commit further offences or engage in other serious conduct[54]
[54] Direction 90, cl 8.1.2.
I turn now to the second matter to which consideration must be given in the context of the protection of the Australian community primary consideration: the risk to the community should the applicant commit further offences or engage in other serious conduct.
In considering that risk in that context, under Direction 90, regard should be had to the Government’s view that the tolerance for risk of future harm becomes lower as the seriousness of potential harm increases, so that some “…conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.”[55]
[55] Direction 90, cl 8.1.2(1).
In assessing that risk, I am required by Direction 90 to have regard, cumulatively, to:
(a)the nature of harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and
(b)the likelihood of him doing so (taking into account available information and evidence on the risk of the non-citizen re-offending and evidence of rehabilitation achieved).[56]
[56] Direction 90, cl 8.1.2(2).
Individuals and the Australian community are likely to suffer significant, potentially very significant, harm should the applicant engage in further criminal conduct.
Based on his history of offending, individual women associated with the applicant are likely to suffer severe physical and psychological harm, and possibly death,[57] consequent upon the infliction or threat of violence. Any witness to the applicant’s offending is likely to be traumatised by it, as would appear to have been the case in relation to witnesses to certain aspects of the applicant’s conduct on 22 and 23 December 2021. Furthermore, family members and others close to an individual directly harmed by the applicant are also likely to suffer some distress.
[57] Noting the seriousness of the choking engaged in by the applicant on 22 December 2021.
As to the nature of harm to the Australian community should the applicant engage in further criminal conduct, it would reflect the nature of the harm suffered by individual members of the community resulting from that conduct. In addition, the community would be harmed by having to devote scarce resources to meet the additional law enforcement, incarceration and healthcare costs resulting from the applicant’s conduct.
As for the likelihood of the applicant engaging in further criminal conduct, I find that it is not likely that he will do so. Indeed, I find that the risk of him doing so is low.
Before delving into my reasons for these findings, I mention that the mere fact that the applicant has engaged in certain conduct in the past is not probative of there being a material risk of him doing so again.[58]
[58] See Kayo Rerekura and Minister for Home Affairs [2019] AATA 153 at [65]: “the mere commission of offences or offending conduct in the past is not, of itself, sufficient.”
According to Mortimer J in Splendido,[59] a “bare recitation of what a person has done in the past” is an insufficient basis for a finding as to the person’s likely future conduct. While, in some circumstances, the past may constitute a reliable guide to the future,[60] for it to do so, more than a mere outline of past conduct needs to be shown if over-valuing personality-based explanations and under-valuing situational-based explanations for conduct are to be avoided.[61]
[59] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [77] per Mortimer J, Moshinsky J agreeing.
[60] See, for example, Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545 at [26], where the Court was dealing with an applicant who “had an extraordinarily lengthy criminal history which was characterised by relapses into drug use, crime and periods of imprisonment. Although there were some periods of abstinence, Mr Zyambo was prepared to engage in further criminal offending even after warnings that his visa might be revoked were he to do so.”
[61] See Hughes v R [2017] HCA 20 at [70]-[72] per Gageler J.
What that “more” includes is revealed by decisions in cases such as Guo Wei Rong.[62] There it was said that:
“The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.”
[62] Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 (Guo) at 574.
In Splendido,[63] Mortimer J stated that:
“The nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.”
[63] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [78].
In Hughes,[64] the High Court grappled with the application of tendency evidence in the context of an individual charged with sexual offences against minors. In that context, Nettle J (albeit in dissent) stated (at [154]) that:
“Evidence that an accused has committed an offence is not, of itself, significantly probative of the accused having committed another offence …To make evidence of previous offending or misconduct significantly probative of a subsequent offence there needs to be something more about the nature of the offences or the circumstances of the offending in each case, or about the victim of each offence, which rationally affects to some significant degree the assessment of the probability that the accused committed the offence.”
[64] Hughes v R [2017] HCA 20.
Hence, facts need to be identified about the applicant’s circumstances, or about the nature and circumstances of his past conduct, that rationally support the assessment of the risk of the applicant engaging in the relevant conduct. I now endeavour to do so.
In terms of the applicant’s past conduct, it reveals no regularity of offending. Rather, an examination of the applicant’s record reveals roughly 12 hours of offending in late 2022, a record consistent with a characterisation of his offending conduct as “an extreme aberration in” the applicant’s personal history.[65] It is not a record suggestive of a lifestyle dependent on, or reflective of, an ingrained habit of offending. According to Ian Mackinnon, psychologist, the applicant “…does not possess an inherently antisocial or criminal character.”[66] I note that the respondent appears to accept that the applicant’s offending is reflective of a “once-off” incident.[67]
[65] G11, p.101 (report of July 2021 prepared by Ian Mackinnon, a consultant psychologist, in the context of an upcoming bail application).
[66] Ibid.
[67] R SFIC [37], albeit immediately followed by a suggestion that the applicant had been engaging in aggressive and worsening behaviour for six months, a suggestion not elaborated upon at the hearing.
While not (at least expressly) seeking to detract from his professions of remorse, the applicant submits his aberrant behaviour in late 2022 was causally connected to his use of methamphetamine (Ice). I accept that submission.
Given this causal connection, an assessment of the applicant’s risk of recidivism is influenced by an assessment of the risk of him relapsing into illicit drug use. On the material before me, I do not consider that latter risk to be significant.
Contrary to what was said in the Ian Mackinnon report which was before the Magistrate who sentenced the applicant in September 2021, before the Tribunal, the applicant did not contend that he had, in 2020, developed a reasonably entrenched Ice habit. Rather, the applicant’s evidence was to the effect that he had used Ice only three times, the first time being on 18 December 2020 and the last time being on 22 December 2020 (the day the relevant his offending began). He said he combined that Ice use with a large amount of alcohol, and it resulted in him hardly sleeping for three or four days.
I accept that evidence. As such, I find that the applicant has not been a frequent user of Ice and his use occurred only over a few days. In these circumstances, that use was not reflective of an entrenched habit.
Moreover, the circumstances in which the applicant used Ice are not likely to be repeated in the future. The applicant’s evidence was that he only used Ice in the context of his relationship with Partner A, a relationship which no longer subsists and which the applicant is legally barred from seeking to re-establish.[68] Moreover, as noted earlier, the applicant’s father had recently died, he had injured a finger, he was having troubles earning a living given the Covid-19 pandemic restrictions which severely constrained travel in Melbourne and Partner A had suffered a miscarriage.
[68] The Tribunal understands a lengthy intervention order is in place prohibiting the applicant form seeking to contact Partner A: see G4, p.45.
The applicant has not tested positive to the use of illicit drugs in prison or detention.[69] His future employment as a taxi driver or slaughterman mitigates the risk of him again indulging in illicit drugs, given the testing regimes understood by the Tribunal to be applicable in relation to both occupations.[70] While in prison, he completed a drug and alcohol program[71] and attended meetings of Narcotics Anonymous.[72] Lastly, I accept that the applicant is strongly motivated to not again use Ice. Before the Tribunal, he was vehement in stating that he would not do so, apparently believing that he would not be in the position he is in (i.e., in detention and liable to removal from Australia) if he had not used drugs, and that drugs had ruined his life.
[69] See G19, p.114.
[70] I note, however, that the testing regimes applicable to those occupations did not prevent the applicant from using marijuana on weekends in the last six months of 2020 although the applicant’s evidence was that he was having difficulty in obtaining work in that period.
[71] G17, p.112.
[72] G18, p.113.
On release into the community the applicant will be supported. His intention is to live in Brisbane. This suggests that several of the supports outlined in the G documents are likely to be irrelevant, given their Victorian source.[73] Nevertheless, the applicant has friends in Brisbane. More significantly, both Son A (aged 23) and Son B (aged 21) live in Brisbane. Having heard from them at the hearing of this proceeding, I was impressed by their commitment to support their father.[74] They have said that they will bring the applicant “… to Brisbane where we study and live and provide him with a stable and safe home so he can have a secure transition back into society.”
[73] See G13, pp.107-108 (July 2021 letter under the letterhead of the Somali Australian Council of Victoria). See also G15, p.110 (July 2021 reference from the President of the Somali Community Inc, an organisation said to provide assistance to refugees and new immigrants in Victoria). See also G9, pp.91-92 [27]-[29].
[74] A commitment that the Sons should have some capacity to fulfil given that one of them is a support services worker engaged in the context of the National Disability Insurance Scheme.

The applicant has good prospects for full-time employment once released into the community. The material before me suggests that he found consistent employment prior to his arrest in late 2020 and that he has employable skills (in terms of being a taxi driver and a slaughterman, albeit subject to the effect of restrictions imposed in the context of the Covid-19 pandemic). A person fully employed is less likely to offend. Quite apart from its psychological benefits, employment reduces both financial pressures and the time available to transgress.
Contrary to the applicant’s submission, I have found his risk of recidivism risk to be low, not non-existent. As was said by Mathews J, sitting as a Deputy President of the Tribunal, in Lam: "Once a person has shown a disregard for the law, it can never be said that there is no risk of re-offending."[75]
[75] Lam and Minister for Immigration and Multicultural Affairs [1999] AATA 56 at [51].
Moreover, despite having frequently professed his remorse for what occurred, I harbor suspicions as to the applicant’s sincerity when doing so. On the applicant’s behalf, it was submitted that his plea of guilty to the charges with which he was convicted showed his remorse.[76] I disagree. He did not plead guilty to those charges until around seven months after his arrest, after he had once again been refused bail.[77] That plea occurred in the context of a reduction in the number of charges the applicant faced and, according to the Magistrate who sentenced the applicant, probably reflected the applicant’s resilience in staring down the prosecution’s case.[78] The applicant had initially denied matters consistent with the injuries suffered by Partner A. Indeed, he is said to have “…largely denied the offending, just admitted to some slapping.”[79] When taken, at the Tribunal hearing, to police material concerning the offending the applicant’s response was not to deny its accuracy but, rather, that he did not remember much of what had occurred as he was exhausted from hardly having slept for three days. Included in that material is a summary of circumstances prepared by police to aid in the applicant’s prosecution. In it, the perception of the police who had interviewed the applicant on 23 December 2020 is said to have been that the applicant had “…showed a complete lack of remorse for the victim and maintained it was ''her fault" that the incident occurred and that he was the victim.”[80] In discussions with prison case officers, the applicant is said to have maintained his innocence and to have stated that the charges against him were false and had ruined his life[81] (something which, at the hearing, the applicant denied, suggesting that the prison case officers concerned may have been racist or otherwise prejudiced against him).
[76] G9, p.90.
[77] G4, pp.58-60.
[78] G4, p.66.
[79] G4, p.48.
[80] TB, p.28.
[81] Denials of wrongdoing are recorded in February 2021 (TB, p.227), March 2021 (TB, p.229), July 2021 (TB, p.234) and August 2021 (TB, p.235).
Even if not fully remorseful for having done what he did to Partner A, I do find that the applicant has some insight into his offending, as reflected in his completion of a “Building Healthy Relationships Program” while in prison.[82] I also find that he has a sense of responsibility for his offending, albeit one tempered by a sense of grievance about what he perceives to be his unfair treatment and one possibly co-existing with a belief that Partner A shares some blame for the incidents in question.[83] The applicant’s insight and acceptance of responsibility is reflected in his evidence to the effect that, in acting as he did, he let down himself, his children and his community. While he claims not to remember much of what transpired at the time of his offending, he accepts that he “bashed” Partner A and that he was “very very wrong” to do so.
[82] G16, p.111.
[83] For example, the applicant repeatedly stated that it was Partner A who instigated the applicant’s use of Ice.
A conclusion that the applicant’s risk of recidivism is low is, as I see it, not inconsistent with the respondent’s contention that it is a “real, tangible” risk or with the opinion expressed by Ian Mackinnon in his July 2021 report that “in a sober state, … [the applicant] is not likely to offend in a violent manner” (despite the current context differing in material respects from that in which Mr Mackinnon provided his opinion).[84]
[84] For example, Mr Mackinnon’s opinion was expressed in a context in which the applicant was said to have available to him on release various supports in Victoria and to have had a reasonably entrenched illicit drug habit in 2020.
In terms of Direction 90, it might be that any risk of the applicant again engaging in conduct of the type engaged in by him in the past is “unacceptable”.[85] In this regard, as outlined later, the applicant has engaged in conduct of the type to which cl 8.4(2) of Direction 90 applies. In the context of conduct of that type and pursuant to one of Direction 90’s framework principles, in some circumstances, “revoking a mandatory cancellation” may not be justified despite strong countervailing considerations and the absence of any measurable risk of physical harm to the Australian community.[86]
[85] Direction 90, cl 8.1.2(1): 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.”
[86] Direction 90, cl 5.2(5).
The respondent seeks to engage that principle when having regard to the protection of the Australian community consideration, submitting that the circumstances of the applicant’s offending are such that any risk of him re-offending is unacceptable.[87] Were that submission to be accepted, my finding that the applicant’s risk of recidivism is low would not serve to ameliorate the weight to be attributed to this consideration.
[87] R SFIC [43]-[50].
As I see it, however, in having regard to the protection of the Australian community consideration, the circumstances of the applicant’s offending “…and the harm that would be caused, if it were to be repeated” are not such as to render any risk of repetition to be “unacceptable,” so as to deny the potential for any finding as to the level of that risk to have an ameliorating effect.
I have no wish to downplay the severity of the applicant’s offending (or, indeed, to categorise the type or circumstances of offending any risk of which is “unacceptable”). While (as already mentioned) it was offending of a type which it is suggested in Direction 90 may be unacceptable, not all offending of that type is inevitably unacceptable, at least when considered in the context of the protection of the Australian community consideration. This is apparent not only from the terms of the relevant framework principle[88] but also from the abbreviated form in which that principle is expressed in those provisions of Direction 90 that address the relevant consideration.[89] Here, the applicant’s offending, while seriously violent, did not result in anyone’s death. It did not involve the use of a firearm or other offensive weapon. It did not result in a conviction for intentionally causing serious injury or for a sexual assault. Lastly, as I see it, an expansive view of offending any risk of repetition of which would be unacceptable would not be consistent with a proper construction of the provisions of Direction 90 dealing with the protection of the Australian community consideration. The more expansive that view, the more otiose the requirement imposed by those provisions for an assessment of the likelihood of a person engaging in certain conduct.
[88] Direction 90, cl 5.2(5): “in some circumstances” – “may” be unacceptable.
[89] Direction 90, cl 8.1.2(1): any risk of repetition “may” be unacceptable.
Conclusion
I find that the protection of the Australian community consideration weighs against finding that there is another reason for revocation of the visa cancellation decision, to a moderate extent.
As a non-citizen who has been allowed to enter and remain in Australia, the applicant’s offending reflects a failure to have met the expectation of him that he be law-abiding and not cause or threaten harm to individuals or the Australian community.
The attribution of moderate weight to the consideration reflects a balance between the very serious nature of the applicant’s offending and the severe harm likely to flow from its repetition, on the one hand, and the risk of him re-offending being low, on the other hand.
FAMILY VIOLENCE[90]
[90] Direction 90, cl 8.2.
The second of the primary considerations concerns family violence. It is of relevance in this proceeding because the applicant has been found guilty of an offence that involved family violence. As described earlier, the conduct which led to him being convicted of making threats to kill and intentionally causing injury entailed violent and threatening behaviour that coerced or controlled Partner A, a person whom I find to have been a member of the applicant’s family.
The member of family concept is not defined in Direction 90. Hence, whether a person is a member of another person’s family for the purposes of the Direction is to be determined by reference to the text of the Direction, the context in which the concept is employed in the Direction and the purpose for having so employed it.[91]
[91] Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115 at [124].
When speaking of the applicant at the time of his offending, a finding that Partner A was a member of his family is, in the circumstances, consistent with that text, context and purpose. In this regard, at that time:
(a)The applicant and Partner A were in an intimate relationship and had been for at least a year (having become “involved with” her in late 2019[92] or, as the applicant stated at the hearing, in February 2019).
(b)The applicant was living with Partner A, which he had been doing, on and off, since having become involved with her, and her address being then used as his postal address.
(c)The applicant provided some financial support to Partner A[93] and, according to the applicant, Partner A “supported him a lot”.
(d)The applicant would appear to have seen their relationship as one which involved a mutual commitment to the exclusion of others, given that he was then said to have become “increasingly paranoid that the victim was cheating on him.”[94]
(e)Under the Act, the applicant and Partner A would likely have been considered in a de facto relationship[95] and, as such, a member of each other’s family.[96]
(f)When arrested, the applicant is said to have characterised Partner A as his wife.[97]
[92] G11, p.98.
[93] The applicant’s evidence was that he bought Partner A such things as a telephone and shoes.
[94] G4, p.41.
[95] Act, s 5CB(2).
[96] Act, s 5G(2).
[97] TB, p.23.
I note that Victorian police clearly perceived Partner A to be in a family relationship with the applicant, given service on the applicant of a family violence safety notice,[98] as did the Magistrate presiding at the sentencing of the applicant (who repeatedly characterised the matter as one of family violence,[99] a characterisation then accepted on the applicant’s behalf[100]).
[98] G4, p.45 and see ‘Family violence safety notices’, Victoria Legal Aid (Web Page, 12 April 2022) < generally in relation to family violence safety notices.
[99] G4, pp.55, 56, 62, 66.
[100] G4, p.63.
A finding that Partner A was a member of the applicant’s family at the time of the relevant offending is consistent with the need to avoid a narrow construction of the member of family concept.[101]
[101] Ibid.
In Direction 90, the Australian government is said to have serious concerns about conferring on a person who engages in family violence the privilege of remaining in Australia. The seriousness of that concern in this proceeding is proportionate to the seriousness of the family violence engaged in by the applicant.[102]
[102] Direction 90, cl 8.2(1).
In assessing the seriousness of that family violence, I am required by Direction 90 to consider, where relevant, certain factors.[103] I do so now.
Frequency of family violence engaged in by the Applicant's conduct and/or whether there is any trend of increasing seriousness.
[103] Direction 90, cl 8.2(3)(a)-(d).
As stated earlier, the applicant’s offending involved, essentially, a one-off incident (albeit occurring over a sustained period of around 12 hours). As such, it could not be considered to be frequent or reflective of any trend of increasing seriousness.
The cumulative effect of repeated acts of family violence
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
Rehabilitation achieved since last known act of family violence
Considering rehabilitation in this context also requires a consideration of the extent to which the applicant accepts responsibility for his family violence-related conduct, the extent to which the applicant understands the impact of his behaviour on Partner A, and any efforts to address factors which contributed to his conduct.
As indicated earlier, I am satisfied that the applicant has a sense of responsibility for the family violence he has perpetrated in relation to Partner A, albeit one tempered by a sense of grievance about what he perceives to be his unfair treatment and one possibly co-existing with a belief that Partner A shares some blame for the incidents in question. I also find that the applicant has some insight into his offending, as reflected in his completion of a “Building Healthy Relationships Program” while in prison and in his statements to the effect that Partner A did not deserve what he did to her. In this regard, I note the applicant’s evidence to the effect that he nearly cried when he saw photographs of Partner A which showed injuries he had inflicted, and that he had wanted to apologise directly to her but was precluded from doing so by reason of an intervention order.
Whether the applicant has re-offended since being formally warned, or since otherwise being made aware by a court, law enforcement or other authority, about the consequences of further acts of family violence
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
Conclusion
The family violence consideration weighs against me being satisfied that there is another reason to revoke the visa cancellation decision, to a moderate extent.
The attribution of moderate weight to this consideration again reflects a balance. On the one hand, the family violence in which the applicant engaged was very serious (as is evident from the description of what occurred outlined earlier). On the other hand, that violence involved conduct characterised as “an extreme aberration in” the applicant’s personal history, reflective (according to the respondent) of a “once-off” incident.
The best interests of minor children in Australia[104]
[104] Direction 90, cl 8.3.
The third primary consideration which I am required by Direction 90 to take into account is the best interests of minor children in Australia. In taking that consideration into account, I am obliged to determine in relation to each relevant child affected by the Tribunal’s decision whether non-revocation of the visa cancellation decision is, or is not, in the child’s best interests.
The applicant submits that Daughter A (the applicant’s daughter aged around 11) is a child whose best interests fall for consideration in the context of this primary consideration.
I have accepted that submission despite its having become apparent in the course of the August 2022 hearing that she was then absent from Australia and had been so absent for around six months. The applicant contended, and I accept, that this absence was temporary given that it was to attend her grandmother’s funeral (albeit that the applicant indicated that the funeral took place in March 2022, leaving Daughter A’s continued presence in Africa after March 2022 unexplained). According to the applicant, Daughter A was with Wife B and Wife B would return to Western Australia as she had other children living there.
In considering Daughter A’s best interests, I am required by Direction 90 to take into account certain factors, where relevant. I do so now.
The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact)[105]
[105] Direction 90, cl 8.3(4)(a).
The applicant is Daughter A’s father. As such, insofar as the existence of a parental relationship is determined by a biological connection, the applicant’s relationship with Daughter A may be said to be parental.
Insofar, however, as a parental relationship with a child is one that requires the undertaking of a parental role, there is little before me suggestive of the applicant having undertaken such a role in relation to Daughter A, at least since leaving Western Australia in 2014. Indeed, on the material before me, I find that since then the applicant has had limited meaningful contact with Daughter A and that his relationship with her is not one which may properly be characterised as close.
The applicant claims that he has a very strong connection with all his children. This may be so in relation to Son A and Son B (an issue discussed in more detail later). I am not satisfied, however, that this is the case in relation to Daughter A.
Third party suggestions to the effect that the applicant is a good father to all his children were made by a person who would not have been familiar with Daughter A[106] and also (indirectly) by Wife A, a person who the Tribunal has no reason to believe has any familiarity with Daughter A.[107]
[106] As submitted by the respondent, the supporting letter of Mr Dini refers to observations since the time the applicant resided in Victoria, and therefore to a time when the applicant no longer lived with Daughter A: G14, p.109.
[107] As submitted by the respondent, the supporting letter of Mr Warsame contains an account of what is said to have been told to Mr Warsame by the mother of the applicant’s children: G15, p.110. Given that Wife A lives in Victoria, the mother to which reference is made would appear to be the mother of Son A and Son B.
On his reception into prison the applicant made no mention of his daughter; all his children were said by the applicant to be adults,[108] a statement clearly inaccurate insofar as the applicant intended to include Daughter A as one of his children. I was unable to locate in the material before me any reference to Daughter A’s name. It was revealed only in response to a question on cross examination.
[108] TB, p.197.
The applicant he has not seen Daughter A since 2015. Given her age, this means that he has not seen her for more than half her life. The applicant claims that he maintains telephone contact with his daughter by ringing her mother, Wife B, regularly. It seems, however, that the applicant knows little of Wife B’s and, more importantly, of Daughter A’s circumstances. For instance, he said did not know whether Wife B had re-partnered and, hence, he would not have known whether anyone apart from Wife B was fulfilling a parental role in relation to Daughter A. In evidence given by Son A, it became apparent that Daughter A was, at the time of the hearing, in Africa with Wife B. As a result, questions were posed of the applicant concerning Daughter A’s location at various times. In particular, he was asked whether Daughter A was in Africa in 2021 (noting a suggestion in the material before me that she was “overseas” in July 2021[109]). Somewhat inconsistently with the claim of a strong connection, the applicant’s response to this was that he did not know where his daughter was in 2021.
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[110]
[109] G15, p.110.
[110] Direction 90, cl 8.3(4)(b).

It is not likely that the applicant would play a parental role of any significance in the future in relation to Daughter A.
The applicant intends to live in Brisbane, while Daughter A (when not in Africa) lives in Perth. The applicant would appear to have had limited meaningful contact with Daughter A since 2015 and I was unable to locate in the material before me any substantive proposal to effect a change in that level of contact.
Moreover, there is little information before me as to whether anyone, and if so who (apart from Wife B), might currently be fulfilling a parental role in relation to Daughter A.
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[111]
[111] Direction 90, cl 8.3(4)(c).
I do not consider the applicant’s offending and his subsequent incarceration to have had any impact on Daughter A. From her perspective, it did not affect the status quo. Insofar as the applicant maintained contact with her after 2015, it was by telephone. The applicant being in prison and detention would not have changed this.
As for the impact of the applicant’s likely future conduct on Daughter A were he to be released into the community, I suspect that there is the potential for it to be positive. Relative to him being in detention or removed from Australia, the applicant being free in the community enhances the prospect of the applicant and Daughter A being able to develop a closer relationship. I do not, however, attribute significance to this prospect. As indicated earlier, I was unable to locate in the material before me any substantive proposal to effect a change in the level of the applicant’s contact with Daughter A from that which he has maintained since 2015.
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[112]
[112] Direction 90, cl 8.3(4)(d).
I do not consider separation of the applicant from Daughter A would have any direct effect on her. Again, from her perspective, it would not affect the status quo. It would not effect any change to the way in which she and the applicant have maintained contact since 2015.
Removal of the applicant to New Zealand would, however, deprive Daughter A of the opportunity afforded by physical proximity to develop further a relationship with the applicant. Again, however, I do not attribute significance to this opportunity given the absence of any substantive proposal to effect a change in the level of the applicant’s contact with Daughter A from that which he has maintained since 2015.
Whether there are other persons who already fulfil a parental role[113]
[113] Direction 90, cl 8.3(4)(e).
There is little in the material before me concerning Daughter A’s circumstances other than that they suggest that a parental role in relation to her is fulfilled by Wife B. As to whether others also fulfil such a role is unclear, albeit it is clear that Wife B has other children not fathered by the applicant.
Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child)[114]
[114] Direction 90, cl 8.3(4)(f).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
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[115]
[115] Direction 90, cl 8.3(4)(g).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct[116]
[116] Direction 90, cl 8.3(4)(h).
It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.
Conclusion
As conceded by the respondent,[117] non-revocation of the visa cancellation decision is not in Daughter A’s best interests. This means that the consideration concerning the best interests of minor children in Australia weighs in favour of me being satisfied that there is another reason to revoke the decision to cancel the applicant’s visa.
[117] R SFIC [64].
The weight I attribute to this consideration, however, is only slight. The applicant’s relationship with Daughter A is not close and her separation from the applicant by way of his removal from Australia is likely to have no direct effect on her, when assessed in the context of their current relationship.
Expectations of the Australian community[118]
[118] Direction 90, cl 8.4.
The expectations of the Australian community consideration constitutes the fourth and last of the primary considerations.
The Australian Government’s views as to the nature of those expectations are outlined in
[119] Direction 90, cl 8.4(4).
cl 8.4 of Direction 90. Decision makers, including the Tribunal, are required to proceed on the basis of those views, without independently assessing community expectations.[119]
Hence, as was the case in relation to the analogous consideration outlined in the instrument replaced by Direction 90, the enquiry which the expectations of the Australian community consideration engenders does not concern what the Australian community expects in fact but, rather, concerns what the Government deems the community’s expectations to be. The content of any such deemed expectation is to be discerned by construing the relevant provisions of Direction 90.[120]
[120] FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [68].
A construction of cl 8.4 of Direction 90 gives rise to at least two potentially relevant community expectations.
The first is derived from cl 8.4(2) of Direction 90. It provides that:
“In addition, 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. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) Acts of family violence; or
…
(c) commission of serious crimes against women…; in this context, ‘serious crimes’ include crimes of a violent…nature…”.
The first part of cl 8.4(2) clearly addresses three situations, including non-revocation of the mandatory cancellation of a visa. The latter part of the clause outlining a community expectation where certain kinds of conduct have been engaged in is expressed to apply only in two situations: refusal of entry to Australia and visa cancellation. Given this apparent dichotomy, an issue arises as to whether that latter part applies in the context currently before the Tribunal, one concerned with the question of whether the mandatory cancellation of a visa ought to be revoked. As I see it, it does.
The latter part of cl 8.4(2) serves only to particularise the circumstances in which the Australian community expectation identified in the first part of the clause arises. Hence, and for instance, mandatory cancellation of a visa so that a person would not continue to hold a visa would be expected where the offences are of a such a nature as to raise serious character concerns through, say, acts of family violence or the commission of crimes of a violent nature against women.
This approach to particularising the expectation that arises by reason of the inherent nature of certain offending or conduct is reflected in the principles found in Direction 90, which both inform and comprise the framework within which considerations (such as the expectations of the Australian community consideration) are to be taken into account.
As identified earlier, one such principle provides that:
“In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.”[121]
[121] Direction 90, cl 5.2(5).
As expressed, the words of that principle reflect a clear intention that conduct mentioned in cl 8.4(2) be considered to be of such a nature that even strong countervailing factors “may be” insufficient to justify, amongst other things, revocation of a mandatory cancellation decision. That intention is expressed in the principle and given effect in cl 8.4(2). A construction of cl 8.4(2) which had the effect that the expectation provided for in it does not apply when considering whether to revoke a mandatory cancellation decision would be inconsistent with that intention and, as such, would be a construction that failed to achieve a purpose or object of Direction 90.[122]
[122] See Acts Interpretation Act 1901, s 15AA.
Given this conclusion, an expectation which the Australian community has (or is at least deemed to have) is, as mentioned and applied in the current context, that a person’s visa would be mandatorily cancelled so that the person would not continue to hold a visa where the person’s conduct has been of a such a nature as to raise serious character concerns through, amongst other things, acts of family violence or the commission of crimes of a violent nature against women.
As outlined earlier, the applicant has engaged in acts of family violence and committed crimes of a violent nature against a woman. Accordingly, he has engaged in conduct of the type which would enliven the expectation provided for in cl 8.4(2) if serious character concerns are raised “through” such conduct. It is not enough to engage in conduct of the relevant kind. If it were, there would be no need for the requirement that serious character concerns be raised.
There is no definition in Direction 90 of what constitutes a serious character concern. Given this, it would appear to be a concept tied to the character test found in s 501 of the Act. A person does not pass that test if, amongst other things, the person is considered to have a substantial criminal record. A person will have such a record if sentenced to a term of imprisonment of 12 months or more. The conduct now in question attracted a sentence to a term of imprisonment of 15 months. Hence, that conduct was sufficient of itself to result in a failure of the applicant to pass the character test. Given this, serious character concerns were raised “through” that conduct.
Accordingly, by reason of cl 8.4(2), the Australian community is taken to expect mandatory cancellation of the applicant’s visa so that he would not continue to hold a visa.
Another Australian community expectation reflected in cl 8.4 of Direction 90 is to similar effect. In particular, in cl 8.4(1), it is said that the Australian community expects non-citizens to obey Australian laws while in Australia and that, where a non-citizen has engaged in serious conduct in breach of this expectation or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow them to enter or remain in Australia.[123]
[123] Direction 90, cl 8.4(1).
In breach of the expectation that he, as a non-citizen, obey Australian laws, the applicant’s offending saw him engage in what constitutes serious conduct for the purposes of Direction 90.[124] Indeed, the Australian community is taken to view conduct of the type in which the applicant engaged as not only serious but very serious.[125] Hence, as a “norm”, the Australian community is taken to expect that the applicant not be allowed to remain in Australia. Whether that expectation applies in the circumstances, therefore, depends on whether the “norm” is displaced.
[124] Noting that the concept of “serious conduct” is simply defined in Direction 90 inclusively so as to include certain non-criminal conduct: cl 4(2).
[125] Noting that crimes of violence are said to be regarded as very serious by the Australian Government and the Australian community: Direction 90, cl 8.1.1(a).
I do not consider the “norm” to be displaced in the circumstances. For it to have been displaced much would be required to distinguish the applicant’s circumstances from those which might reasonably be expected to be encompassed within the “norm”. While everyone’s circumstances are to an extent unique, I am not satisfied that the applicant’s circumstances are such as to warrant a conclusion that the community’s normal expectation is inapplicable to him.
In the result, the Australian community is to be taken to expect mandatory cancellation of the applicant’s visa so that he would not continue to hold a visa and that he not be allowed to remain in Australia.
Hence, the Australian community expectations consideration weighs against revocation of the visa cancellation decision. The extent to which it does so, however, depends on what is appropriate in “the particular circumstances.”[126]
[126] FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [101]-[102], addressing the instrument which Direction 90 replaced.
In the context of offending that is very serious, the community’s expectations that the non-citizen not hold a visa and not be allowed to remain in Australia ought generally be attributed significant weight. Strong countervailing factors may, however, serve to lessen that weight (albeit that they might not always do so[127]). Hence, the weight to be attributed to the community expectations consideration may be affected by such things as the extent of the risk that the relevant non-citizen will re-offend[128] and the frequency of the non-citizen’s offending.
[127] Noting that one of the community expectations that applies in the circumstances arises out of a provision of Direction 90 which gives effect to a principle which suggests that, in the context of conduct of the type engaged in by the applicant, revocation of a visa cancellation decision may be refused despite “strong countervailing considerations”.
[128] This is so despite the community’s expectations being applicable regardless of whether the relevant non-citizen poses a measurable risk of causing physical harm to the community: Direction 90, cl 8.4(3).
In this case, the applicant’s risk of recidivism being low coupled with the relevant offending comprising a one-off incident does serve to moderate the weight I would otherwise have attributed to the community expectations consideration.
Conclusion
The consideration concerning the expectations of the Australian community weighs against me being satisfied that there is another reason to revoke the visa cancellation decision. I attribute moderate weight to this consideration.
OTHER CONSIDERATIONS[129]
[129] Direction 90, cl 9.
The considerations which I am required by Direction 90 to take into account are, as mentioned earlier, divided into primary and other considerations.
The other considerations are defined to include but not be limited to a consideration of international non-refoulement obligations; extent of impediments if removed; impact on victims; and links to the Australian community, including strength, nature and duration of the applicant’s ties to Australia and the impact on Australian business interests.[130]
International non-refoulement obligations[131]
[130] Direction 90, cl 9(1).
[131] Direction 90, cl 9.1.
It has not been contended, and the material before me does not suggest, that Australia’s international non-refoulement obligations are engaged in the circumstances. Hence, the consideration directed to those obligations is not of relevance in this proceeding.
Extent of impediments if removed[132]
[132] Direction 90, cl 9.2.
In the circumstances, Direction 90 requires that consideration be given to the extent of any impediments that the applicant may face if removed from Australia to New Zealand, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of New Zealand), taking into account his age and health, whether there are substantial language or cultural barriers, and any social, medical and/or economic support available to him in New Zealand.
Neither the applicant’s age nor his health would constitute a material impediment to him establishing himself and maintaining basic living standards in New Zealand. He is 47 years old and, as such, young enough to be able to continue to work in the areas in which he had continued to find work prior to his incarceration in late 2020 (taxi driving and halal slaughtering). Moreover, subject to later comments concerning a mental health condition, the applicant appears generally to be in good health.
Similarly, there are no substantial language or cultural barriers which would impede the applicant in establishing himself and maintaining basic living standards in New Zealand. No such barriers prevented him from maintaining himself, and, on his evidence, being always able to obtain employment, in New Zealand for seven years, before coming to Australia. Indeed, given that he has now spent 18 years in New Zealand and Australia (countries not markedly dissimilar, linguistically and culturally), any language and cultural barriers that the applicant would confront on removal now to New Zealand ought to be relatively mild when compared to those he would have confronted, and overcome, after his arrival in New Zealand in 2004. Since then, the applicant has acquired at least two employable skills (taxi driving and halal slaughtering) and he has come to possess “well-developed English literacy skills,” as well as English language skills “effective enough for him to engage at a conversational level”.[133]
[133] G11, p.100.
As for social, medical and/or economic support available to the applicant in New Zealand, it would be that which is generally available to other citizens of New Zealand. He would not, however, have the support which friends and family provide.[134]
[134] The applicant’s family resides in Australia or, at least, not in New Zealand: G8, p.86.
As for friends, he is said now to know no-one in New Zealand, having not been there since 2011 and with a number of friends he did have in New Zealand having, like him, moved to Australia.[135] I was not taken to and nor was able to locate in the material before me, however, any reference to the applicant having a friendship group available to him when he moved to New Zealand in 2004 or Perth in 2011 and yet he was then able to establish himself and maintain basic living standards.
[135] That the applicant no longer has any contacts in New Zealand is supported by the evidence of both Son A and Son B.
As for family, the applicant says he moved to Australia in 2011 to be with his family and that he will be greatly distressed if separated from his family consequent on his removal from Australia. Indeed, on a couple of occasions in the course of the hearing of this proceeding, the applicant implicitly suggested that he might commit suicide if removed from Australia. Clearly, extreme distress would impede the applicant in establishing himself and maintaining basic living standards in New Zealand.
I do not accept that the applicant will suffer the level of distress he says he will suffer by reason of being separated from his family consequent on removal from Australia. That level of distress seems out of proportion to what might reasonably be expected given, in particular, the applicant’s history of living separately from, and in places geographically remote from, his family members. Indeed, the applicant has lived separately from his children for most of their lives. In the 2000 to 2004 period, the applicant was in Kenya while Son A and Son B were in New Zealand. In 2005, the applicant separated from Wife A and lived apart from his sons. In the 2006 to 2011 period, the applicant lived in New Zealand while Son A and Son B were in Australia. After 2011, the applicant lived mostly in Perth and Victoria while Son A and Son B spent most of their time in Brisbane. As for Daughter A, the applicant has not seen her since 2015, more than half of her life.

The applicant stated in the course of the hearing that he needed to be in Australia to defend his children were Australia to be invaded. What the applicant would be able to do in such a situation was unidentified.
Nevertheless, it would appear, and I accept, that the applicant places significance on retaining a capacity to visit Son A and Son B, such as on birthdays and religious holidays, a capacity which the evidence suggests he exercised while in Australia. This capacity to occasionally visit his sons would be lost or at least severely impaired were the applicant to be removed from Australia, noting financial constraints are likely to limit opportunities for Son A and Son B to visit their father in New Zealand.
Given the significance accorded by the applicant to his retention of a capacity to occasionally visit his sons, the loss of that capacity (or its severe impairment) might trigger a worsening of the mental health disorder from which the applicant suffers (reflecting the fear expressed by the applicant that his mental health may suffer if removed from Australia[136]). I note in this regard that, in July 2021, the applicant was diagnosed as suffering from a mixed anxiety and depression disorder,[137] one which was then being successfully treated with anti-depressant medication.[138]
[136] G8, p.86.
[137] G11, p.100.
[138] G11, p.102.
I was not taken to and unable to locate in the material before me any medical evidence addressing the effect on the applicant’s mental health of his removal from Australia. I do infer, however, that there is a risk that his removal would trigger a worsening of his mental health disorder. While recognising that any such worsening might affect adversely the capacity of the applicant to establish himself and maintain basic living standards in New Zealand, on the material before me, I do not speculate on the extent of that adverse impact. I do note, however, that, at least in July 2021, the applicant was denying that he had ever engaged in “suicidal/deliberate self harming behaviour”.[139]
[139] G11, p.99.
The applicant is likely to face difficulties in establishing himself and maintaining basic living standards were he to be removed to New Zealand. He would need to find a place to live, seek employment and gain access to governmental services and supports (for example, in order to obtain access to medication for his mental health disorder). Those likely difficulties are, however, likely to be transitional. The applicant has a history of being able to address similar difficulties when moving to a new environment. That any such difficulties are likely to be only transitional is reinforced when regard is had to the applicant’s employable skills, age and general health, an absence of significant language and cultural barriers and his capacity to access services and supports generally available to citizens of New Zealand. While the applicant might face a worsening of his mental health on removal to New Zealand, I am not satisfied that any such worsening is likely to impede materially the applicant in settling into life in New Zealand.
Conclusion
This consideration concerning impediments to be faced by the applicant on removal to New Zealand weighs in favour of there being another reason to revoke the visa cancellation decision. It does so, however, only to a slight extent.
Impact on victims[140]
[140] Direction 90, cl 9.3.
In the circumstances, Direction 90 requires that consideration be given to the impact of a decision to revoke the decision to cancel the applicant’s visa, or a decision to not revoke it,[141] on members of the Australian community, including victims of his criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the applicant has been afforded procedural fairness.
[141] In cl 9.3 of Direction 90, the concept employed is of a “s 501CA decision”. That section in fact only provides for one decision, a decision to revoke a visa cancellation decision. In its terms, it does not encompass a decision to not revoke a visa cancellation decision. Nevertheless, that would seem to be the intent underlying use of the concept, especially in the context of cl 9.4.2 of Direction 90 where the reference to a decision under s 501CA is clearly intended to encompass a decision not to revoke a visa cancellation decision but cf CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 at [23], where the analogous provision in the predecessor of Direction 90 was construed in a way that directed consideration only to a decision to revoke a visa cancellation decision.
Neither party contended and nor was it apparent on the material before me that this consideration was of relevance in this proceeding.
I find the consideration not to be of relevance in this proceeding.
Links to the Australian community, including strength, nature and duration of the Applicant’s ties to Australia and the impact on Australian business interests[142]
[142] Direction 90, cls 9.4, 9.4.1 and 9.4.2.
In the circumstances, Direction 90 requires that this “other consideration” be addressed by reference to two subsidiary considerations.
The first concerns the strength, nature and duration of ties to Australia. The second concerns the impact on Australian business interests.
Strength, nature and duration of ties[143]
[143] Direction 90, cl 9.4.1.
As to this first subsidiary consideration, in the circumstances, it requires that regard be had to:
(a)Any impact of a decision to revoke or not revoke the visa cancellation decision on those of the applicant’s immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.[144]
(b)The strength, duration and nature of any other ties that the applicant has to the Australian community, having regard to how long he has resided in Australia and the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.[145]
[144] Direction 90, cl 9.4.1(1).
[145] Direction 90, cl 9.4.1(2).
Insofar as the applicant’s immediate family members in Australia includes Daughter A, I have considered the impact on her of a decision not to revoke the visa cancellation decision and concluded that such a decision would not be in her interests. Put simply, such a decision would have an adverse impact on her but (for reasons previously outlined) not one which is significantly adverse. In the context of her current relationship with the applicant, Daughter A is not likely to be directly affected by the applicant’s removal from Australia consequent upon a decision not to revoke the visa cancellation decision. She would, however, miss out on the opportunity afforded by physical proximity to develop further a relationship with the applicant, albeit I have not attributed any significance to that opportunity.
Insofar as the applicant’s immediate family members in Australia includes Son A and Son B, I accept that the impact on each of them of a decision not to revoke the visa cancellation decision would be adverse.
Both sons gave impressive evidence to the effect that they had a close relationship with the applicant, one which they appeared to value highly.
In an unsigned statement said to have been made on behalf of both sons in August 2022, the applicant was characterised as “…our backbone growing up.” The applicant being in prison and detention was said by the sons to have “…been extremely hard on us both mentally and emotionally. Whenever we used to find ourselves in a difficult situation we immediately called our father for advice but we didn’t have that privilege for the majority of the past 590 days.”
While no medical evidence was before me suggestive of either Son A’s or Son B’s mental health being adversely impacted by the applicant’s removal to New Zealand, I accept that it would leave them somewhat distraught. I have difficulty in accepting, however, that any distress they would so suffer is significant.
As outlined earlier, the applicant has lived in places geographically remote from his sons for almost all their lives. I accept that the applicant and his sons nevertheless remained in regular contact, presumably by telephone or via the internet. While it might be, as contended by Son A, that maintaining contact in this way is not a substitute for a relationship nurtured by physical proximity, in fact, this is the principal way in which the applicant has maintained his relationship with his sons. The applicant’s removal to New Zealand would not change this and do nothing to prevent the applicant and his sons from continuing to maintain their relationship in this way.
Like their father, it would appear, and I accept, that both Son A and Son B place significance on the applicant retaining a capacity to visit them, such as on birthdays and religious holidays, and stay with them, as he currently intends to do on his release into the community. This capacity of their father to occasionally visit and stay with them would, as mentioned earlier, be lost or at least severely impaired were the applicant to be removed from Australia.
As for the strength, nature and duration of any other ties that the applicant has to the Australian community, he has lived in Australia ever since arriving here in 2011, aged 36. For much of that time he contributed positively to the Australian community, working primarily as a taxi driver and halal slaughterman.
Other than through his children, the applicant has no familial ties to the Australian community.
There is evidence of some non-familial ties and social links, but the material before me suggests that they are not extensive. The applicant says that he remains friends with his former wives, Wife A and Wife B, both of whom reside in Australia. I note, however, that neither of them provided any direct material in support of the applicant’s case. A director of the Australian Somali Football Association – United through football Inc. stated that the applicant had a long involvement with Somali Australian communities “…culminating as a leader and volunteer community programs in…” a number of Melbourne suburbs.[146]
Impact on Australian business interests[147]
[146] G14, p.109.
[147] Direction 90, cl 9.4.2.
As to the second subsidiary consideration, in the circumstances, it requires that consideration be given to the impact on Australian business interests of not allowing the applicant to remain in Australia.
The applicant’s evidence is that he has worked in Australia in a number of jobs but predominantly as a taxi driver and halal slaughterman.
In light of this evidence, as I see it, there is nothing to displace the general position found in Direction 90 to the effect than an employment link is given weight only where the decision to revoke or to not revoke the visa cancelation decision would significantly compromise the delivery of a major project or delivery of an important service in Australia (which is not the case here).
Conclusion
I find that the links to the Australian community consideration weighs in favour of me being satisfied that there is another reason to revoke the visa cancellation decision.
The applicant has strong familial ties to Australia. The weight to be attributed to the consideration by reason of these strong ties is, however, offset by an absence of extensive non-familial ties. In the result, I attribute moderate weight to the consideration.
CONCLUSION AS TO OTHER REASON FOR REVOCATION
In considering whether there is another reason for revocation of the decision to cancel the applicant’s visa, my conclusions in relation to the various considerations to which I have had regard (including those to which Direction 90 requires that I have regard) do not point in a uniform direction.
In particular, in the circumstances of this matter, and ignoring those considerations which I have found not to be relevant or in relation to which I have not made findings:
(a)Weighing in favour of a conclusion that there is not another reason for revocation of the visa cancellation decision are three of the primary considerations, being the considerations concerning protection of the Australian community from criminal or other serious conduct, family violence and expectations of the Australian community (with the weight attributed to each such consideration being moderate).
(b)Weighing in favour of a conclusion that there is another reason for revocation of the visa cancellation decision are the primary consideration as to the best interests of minor children in Australia (to a slight extent) and the other considerations concerning impediments to be faced by the applicant should he be removed from Australia (to a slight extent) and the applicant’s links to the Australian community (to a moderate extent).
Overall, I am not satisfied that there is another reason to revoke the visa cancellation decision. In this regard, the general position under Direction 90, which has the primary considerations being given greater weight than the other considerations, is not displaced in the circumstances of this proceeding. Here, we have three of the four relevant primary considerations weighing in favour of deciding that there is not another reason to revoke the visa cancellation decision, each to a moderate extent.
Decision
As I stated at the beginning of these reasons, in this proceeding, the task for the Tribunal is to decide whether it is satisfied that the applicant passes the relevant character test or that there is another reason why the visa cancellation decision should be revoked.
I am not satisfied that the applicant passes the character test.
I am also not satisfied that that there is another reason why the visa cancellation should be revoked.
Accordingly, for these reasons, I affirm the decision under review.

I certify that the preceding 203 (two hundred and three) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell

.....................[SGD]...................................................
Associate
Dated: 29 August 2022

Dates of hearing: 12 and 15 August 2022

Applicant: Self-represented

Advocate for the Respondent: Arran Gerrard

Solicitors for the Respondent: The Australian Government Solicitor

[2022] AATA 2998

29 August 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies

Dates of hearing:	12 and 15 August 2022
Applicant:	Self-represented
Advocate for the Respondent:	Arran Gerrard
Solicitors for the Respondent:	The Australian Government Solicitor