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

Kalolo and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2780 (31 August 2023)
Division:GENERAL DIVISION
File Number(s): 2023/4216
Re:Etoma Kalolo
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:31 August 2023
Place:Adelaide

Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision, dated 6 June 2023, and substitutes a decision revoking the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa granted on 1 February 2010.
.....................[Sgnd].........................................
Senior Member B J Illingworth

CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – temporary visa – New Zealand citizen – where Applicant does not pass the character test – serious criminal record – Applicant has substantial criminal record – whether “another reason” to revoke visa cancellation – Ministerial Direction 99 – s 501CA(4) – s 501(3A) – discretion to revoke the mandatory cancellation – decision under review set aside
LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Children (Criminal Proceedings) Act 1987 (NSW)
Migration Act 1958 (Cth)
CASES

Afu v Minister for Home Affairs [2018] FCA 1311
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138.
FYBR v Minister for Home Affairs [2019] FCAFC 185
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION

Senior Member B J Illingworth
31 August 2023

The Applicant seeks a review of the decision by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (“the Respondent”) made under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) on 6 June 2023 not to revoke the mandatory cancellation the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (“Visa”). The Applicant’s Visa was cancelled on 3 August 2022 under s 501(3A) of the Act on the basis that he did not pass the character test.[1]
[1] Exhibit A, p 75–80.
The hearing was held on 8 & 9 August 2023. The Applicant was represented by Mr Fardin Nikjoo of Nikjoo Lawyers, and the Respondent was represented by Ms Madisen Scott of Australian Government Solicitor.
The Applicant gave evidence, by video, from Yongah Hill Immigration Detention Centre. The Tribunal received evidence, by telephone, from both the Applicant’s parents, his sister and C (the mother of one of his children), all of whom also provided statements which were received into evidence. The Tribunal also received statements of the Applicant’s two brothers and nephew who were not required for cross-examination and their statements were received into evidence, unchallenged. The Tribunal also received into evidence the documents as listed in the exhibit list, held on the Tribunal file.
BACKGROUND
The Applicant was born on 19 May 1993 on the island of Tokelau, New Zealand (“NZ”). His parents are both NZ citizens. He has four children under the age of 18 years.
The Applicant detailed his family, and extended family members, in the Personal Circumstances Form, which was, in part, inaccurate or unclear.[2] He has one sister and six brothers.[3] The Applicant’s evidence about the number of nieces and nephews was also unclear. His extended family includes approximately; 20 aunts and uncles, 22 nieces and nephews (two of whom are over the age of 18 years), 17 cousins and four grandparents, all of whom live in Australia. He has no family in NZ.
[2] Exhibit A, p 60–74.
[3] Note: Two brothers were omitted from the list of family details in [9].
In the Applicant’s mothers’ evidence, she said her eldest son, his wife, and five children (all of whom are under 18 years of age), have moved to Samoa, where they now reside permanently. Hence, the Applicant’s eldest brother, his wife and five children are not permanent residents in Australia, and therefore the Direction does not apply to them. Thus, the Applicant has 17 nieces and nephews under 18 years of age currently residing in Australia.
The Applicant arrived in Australia on 14 July 2005, aged 12 years, and has remained in Australia since then, apart from a brief period overseas from 4 December 2009 to 1 February 2010.[4] He completed his schooling in Australia to halfway through year 10.
[4] Exhibit A, p 81.
The Respondent’s Statement of Facts, Issues and Contentions (“SoFICs”) informs the Tribunal that between the age of 14 and 16 years old, “the Applicant had multiple interactions with New South Wales Police including:
[1.] Multiple transport infringements
[2.] various incidents of anti-social behaviour resulting in move-on notices; and
[3.] disrespectful conduct towards authority resulting in cautions.”[5]
[5] Respondent’s SoFICs p 1–2 [6]; Exhibit B p 48–73.
The Respondent has also referred the Tribunal to an incident, in 2010, when the Applicant and three other youths gained unauthorised entry into a home in which the residents were asleep. The occupants awoke, and the Applicant and the youths fled the home. The Applicant was charged with Aggravated Breaking and Entering & Commit Serious Indictable Offence–In Company, and on 26 August 2011, the Applicant was placed on a nine-month probation order.[6]
[6] Exhibit A, 31–33 at p 33.
The Respondent submits that because the Applicant was over 16 years of age, at the time of the commission of the offence, and the offence charged was an indictable offence, a conviction was open to be recorded against the Applicant.[7] The Respondent accepts it is unclear from the materials if a conviction was recorded, or that only a finding of guilt was made. Nonetheless, the Respondent argues that as the Applicant was placed on probationary service, the Tribunal can treat that offence as if the Applicant was convicted of the offence.
[7] see s 14 of the Children (Criminal Proceedings) Act 1987 (NSW).
In the absence of material clearly detailing the Applicant’s alleged offence of Aggravated Breaking and Entering & Commit Serious Indictable Offence–In Company; and the records of the Parramatta Children’s Court dated 26 August 2011 on sentencing, and noting the concession properly made by the Respondent that it is unclear from the material before the Tribunal the role of the Applicant in that offence, the Tribunal has decided not to have regard to this offending as a youth. The Tribunal expressly excludes that offending from the Tribunal’s consideration in weighing the Primary and Other Considerations, and in particular those matters referred to in the Respondent’s SoFICs, including the charge of Aggravated Breaking and Entering & Commit Serious Indictable Offence–In Company.[8] Those matters will be relevant only to the extent of providing some history about the Applicant during his teenage years, and before turning 18 years of age.
[8] Note: Matters referred to in Respondent’s SoFICs p 1–2 [6].
That history is consistent with the evidence of the Applicant’s mother that he started getting into trouble when he was hanging around with the wrong crowd, from about 14 years of age.
The Applicant turned 18 years of age on 19 May 2011.
The Applicant’s Offender History as an adult
The New South Wales (“NSW”) Police Force Criminal History (NSW Police Record) of the Applicant details his contact with NSW Police, after he attained the age of 18 years, on 19 May 2011.[9]
[9] Exhibit B.
AVO Involving A
On 2 June 2011, police were contacted by an alleged victim’s mother who alleged, amongst other things, that her daughter (“A”) had been assaulted by her boyfriend, the Applicant. NSW Police attended the Applicant’s home, but no one was there. NSW Police subsequently located A and the Applicant. They spoke with A. She said she and the Applicant had an argument. She would not make any further statement and asked to go home. NSW Police asked if she was scared of the Applicant. She said she was because he had hit her on previous occasions and harassed her, but A would not provide a statement and had no visible injuries.
After checking text messages on A’s telephone, NSW Police formed the view the Applicant was harassing A, and she required an apprehended violence order (“AVO”). While NSW Police determined none of the text messages disclosed any form of offence, or assault, it was determined that due to the number and nature of text messages from the Applicant, and A’s demeanour, that she was in need of protection and NSW Police arrested the Applicant to prevent further breach of the peace. NSW Police also applied for an urgent AVO before releasing the Applicant.[10]
[10] Exhibit B, p 50.
On 15 June 2011, NSW Police received a telephone call from the A’s mother. They attended the Applicant’s home on 16 June 2011. A and the Applicant were together, in contravention of the AVO. NSW Police spoke to A. She said she wanted the AVO dropped.[11]
[11] Exhibit B, p 49–50.
The Respondent, in the SoFICs, submitted that a AVO was issued on 9 August 2011 to protect A. This is consistent with the NSW Police Record.[12]
[12] Respondent’s SoFICs, p 2 [8.1]; Exhibit B, p 49.
Anti-social Behaviour
The NSW Police Record also refers to the Applicant’s anti-social behaviour, including being “directed to move on”, and on 27 January 2012, the Applicant was issued with a Criminal Infringement Notice for an attempt to steal two bags of potato chips, and a bag of skittles.[13] He was reported to be intoxicated.
[13] Exhibit B, p 48.
AVO involving B (Offence, dated 15 July 2015)
On 17 July 2013, the Applicant’s then partner, (“B”), gave birth to their first child (“Child 1”), a son. On 28 February 2015, she gave birth to their second child (“Child 2”), a son.
The NSW Police Record reports, on 15 July 2015, B had ended the relationship with the Applicant due to ongoing trust issues, and she was residing at her parents’ home with both Child 1 and Child 2. The Applicant arrived at B’s home. B went outside with Child 1. Child 2 then woke and was crying. The Applicant went into the house with B. The Applicant, B, and the two children were together in the bedroom. He subsequently grabbed B’s mobile telephone and tried to access her Facebook Account. They walked from the bedroom to the lounge room. B demanded the Applicant return the mobile telephone. She threatened to call the police. The Applicant placed both hands on the mobile telephone and bent it downwards, until it broke, and the screen shattered. The Applicant said, “there you go” and returned the mobile telephone to B and left the house.
B locked the front door and telephoned the police. The Applicant retuned a short time later and sat on the front porch. He continued to argue with B. After 10 minutes, he left. NSW Police attended the Applicant’s home, where he was cautioned, and arrested. He made full admissions to breaking the mobile telephone, said he was jealous, and “she tried to grab it off me and that’s when I snapped.” B feared for her safety and said the Applicant was becoming unpredictable and more aggressive following their breakup. An AVO was issued.[14]
[14] Exhibit B, p 39–41.
The NSW Police Facts Sheet,[15] reports the Applicant was unemployed at the time of the offence, and not in receipt of government payments; he had several Domestic Violence incidents between 2011 and 2015 and referred to a one-year AVO between August 2011 and August 2012 relating to a former girlfriend, whom the Tribunal infers was A.
[15] Exhibit A, p 51–54.
On 18 August 2015, the Applicant was convicted of Destroy or Damage Property less than $2000 and placed on bond for 12 months.[16]
[16] Exhibit A, p 33.
On 2 April 2018, the Applicant and B had a third child (“Child 3”), a son.
The Tribunal also notes that on 20 April 2019, the Applicant and C had a child (“Child 4”), a daughter. C gave evidence before the Tribunal. She is no longer in a relationship with the Applicant, but said she had no violence issues with the Applicant, he has a close and loving relationship with Child 4, and she will continue to support and assist the Applicant should he return to the Australian community. The Tribunal will refer to her evidence later.
AVO involving Applicant’s parents (Offence, dated 8 December 2019)
At about 4:00AM on 8 December 2019, the Applicant arrived at his parents’ home, where he was living.[17] He was intoxicated. The Applicant tried to enter the home, but the front door was locked. The Applicant was told by his parents to leave. He refused and kicked the front door off its hinges. The Applicant and his father argued. His father had also consumed a large amount of alcohol. The Applicant began throwing items around the house. The Applicant’s father left the house and flagged down a member of the public to call for assistance because no one in the house had a telephone.[18]
[17] Note: The Respondent’s SoFICs incorrectly states Applicant was living with D at parents’ home. NSW Police Record does not mention D in record. D is first mentioned on 22 November 2020 record which states D and Applicant had only been in a relationship for about four months: Exhibit B, p 25, 27–28.
[18] Exhibit B, p 238–240.
NSW Police arrived at 8:25AM and spoke to the Applicant’s mother, who explained what happened. The Applicant and the Applicant’s father were both asleep. NSW Police saw the broken door. The house was in disarray, but they could not determine to what extent that was the consequence of the Applicant’s actions. The Applicant was taken into custody. He claimed to have no memory of damaging the door. He was smiling and laughed when police put the allegation to him. A Provisional AVO was issued to protect the Applicant’s mother and father.
On 10 December 2019, in the Penrith Local Court, the Applicant was convicted of Destroy or Damage Property (DV). A final AVO was issued to protect the Applicant’s mother and father from physical harm which prohibitions were for two years.[19]
[19] Exhibit A, p 33; also see Exhibit B, p 230–351.
AVO involving D (Offence, dated 21–22 November 2020)
The Penrith Local Court dealt with this offending on 2 March 2021,[20] and sentenced the Applicant on the basis of agreed facts.[21] The Tribunal will have regard to the agreed facts as the factual basis of this offending.
[20] Exhibit A, p 42–45.
[21] Exhibit B, p 265–267.
At this time, the Applicant still resided at his parent’s home. He was unemployed and had no source of income. He had three separate AVO’s in place at the time, two of which were issued by the Penrith Local Court, on 10 December 2019, in relation to his parents.
The Applicant had been in a domestic relationship with D for the preceding four months and at the time of the offence she was his girlfriend.
On 21 November 2020, D attended the Applicant’s home. They left and purchased some alcohol and returned home, where they drank and listened to music. By about 10:00PM–10:30PM, D said she had consumed two alcoholic beverages and the Applicant had consumed about 15 alcoholic beverages.
They were in the Applicant’ bedroom, which was downstairs, and lying on the bed. An argument developed and the Applicant hit D in the nose causing her pain. Her nose was bleeding. D screamed which could be heard upstairs by the Applicant’s parents. The Applicant’s father went downstairs to the Applicant’s bedroom. The Applicant said words to the effect of, “go back upstairs” which he did. The Applicant then threw D’s brand new mobile telephone against the wall. It was smashed and destroyed beyond repair.
D left the bedroom and went into the lounge room. She was on the lounge. The Applicant was heavily intoxicated and made nasty remarks directed at D as he approached her.
D feared for her safety, screamed, and started to run upstairs. The Applicant’s father heard someone running upstairs, walked from his bedroom and saw the Applicant running after D. The Applicant’s father stood between the Applicant and D, to protect D. The Applicant pushed his father to the ground causing his father pain to his left elbow. The Applicant’s mother was on her mobile telephone calling the police. The Applicant took her mobile telephone and threw it against a wall, smashing it beyond repair.
The Applicant left the property and got into D’s car, started the engine, but did not drive it. D got into the driver’s seat, and the Applicant was in the passenger seat. D drove from the house. The Applicant was yelling at her to get out of the car. When they were near a shopping centre and the car was stationary, the Applicant got out of the car, slammed the door and ran off. D returned to the Applicant’s home, but he did not return. He was apprehended by NSW Police in the early hours of 22 November 2020. He smelt of alcohol, was unsteady on his feet, and sweating heavily.
On 22 November 2020, a Provisional AVO was issued to protect D. The AVO included that the Applicant was not to approach or contact D in person, or through electronic communication, including by text message or email.[22]
[22] Exhibit B, p 259–261; 262–264.
On 28 January 2021, the Applicant contacted, and attempted to further contact, D by mobile telephone 47 times, including by text messages, which was in breach of the Provisional AVO.[23] The Applicant was spoken to, and taken into custody on, 29 January 2021.
[23] Exhibit B, p 277 280.
A final AVO to protect D was issued on 2 February 2021.[24]
[24] Exhibit B, p 256–258.
On 2 March 2021, in the Local Penrith Court, the Applicant was convicted of:
(a)Common Assault (DV);
(b)Assault Occasioning Actual Bodily Harm (DV);
(c)Destroy or damage property–two counts;
(d)Contravene prohibition/restriction in AVO (Domestic)–in relation to his parents; and
(e)Contravene prohibition/restriction in AVO (Domestic)–in relation to D.[25]
[25] Exhibit A, p 32.
In regards (a)–(d), the Applicant was sentenced to concurrent, Intensive Community Correction Orders, totalling eight months, commencing on 2 March 2021, concluding on 1 November 2021. In regards (e) he was sentenced to imprisonment for one month and two days, commencing on 29 January 2021 when he was taken into custody, and concluding on 2 March 2023, when he was sentenced.
Breach of AVO involving D (Offence, dated 6 February 2022–The Sentence that enlivened the Mandatory Cancellation)
The NSW Police Record,[26] and a ‘Draft’ Facts Sheet,[27] refer to the events that gave rise to the offences.
[26] Exhibit B, p 14.
[27] Exhibit B, p 294–298.
The Applicant was sentenced in the Local Court of Penrith, on 22 April 2022,[28] to imprisonment for 18 months, commencing on 7 February 2022 with a non-parole period of 12 months for:
(a)Contravene prohibition/restriction in AVO (Domestic); and
(b)Threaten to distribute intimate image without consent (DV).
[28] Exhibit A, p 33, 36–38.
The Sentencing Remarks of the Penrith Local Court do not adequately detail the factual circumstances that were relied on for the purpose of sentencing. There was no statement of agreed facts before the Tribunal as was the case with the earlier sentence on 2 March 2021. In response to the Tribunal, the Applicant denied that his threats to release explicit videos and images of D were to encourage her to engage in sexual intercourse as contained in the NSW Police Record.[29] That was not challenged by the Respondent, and the NSW Police Record and the ‘Draft’ Facts Sheet were not put to the Applicant.
[29]Exhibit B, p 14.
The Tribunal notes the Applicant’s evidence is consistent with the comments of the Learned Sentencing Magistrate, D maintained contact with the Applicant after the AVO was made. The Tribunal notes the NSW Police Record refers to contact, including of an intimate and sexual nature.

The Applicant said he did not threaten to send the videos (or images) to D’s father but did threaten to send them to her brother’s friend, who had been contacting her. The Applicant said he sent the videos, but then recalled them before they were opened by the recipient.
The Tribunal is not reasonably satisfied the Applicant tried to persuade D to have sexual intercourse with him but is otherwise reasonably satisfied about the factual circumstances as contained in the Respondent’s SoFICs,[30] and the factual circumstances as referred to by the Learned Sentencing Magistrate, namely:
“On 6 February 2022, the Applicant began calling and texting D ‘non-stop’. D attended the Applicant’s house, where he threatened to send explicit videos (taken without her consent)...The Applicant then sent the video to D’s father. On, 22 April 2022, the Applicant was convicted of 1 count of Contravene prohibition/restriction in AVO and 1 count of Threaten to distribute intimate image w/o consent, and sentenced to 18 months imprisonment, with a non-parole period of 12 months.” [31]
[30] Respondent’s SoFICs, p 4 [16].
[31] Respondent’s SoFICs, p 4 [16]; Note: The NSW Police Record mentions videos and images.
The Learned Sentencing Magistrate said it was a concern that the offence involved the same victim, that the Applicant had no regard for the AVO and continued to contact D but accepted that she did likewise; but the AVO applied to the Applicant. Having noted the Applicant committed the offence shortly after completing the Intensive Community Corrections Order concerning the same victim, Her Honour said that Intensive Community Corrections Order had no deterrent effect and said:
“If anything, your behaviour is escalating. In relation to the matter, your continual breach of our orders gives me concern that you would not comply with the very basics of being of good behaviour and therefore the community safety aspect cannot be addressed. According, I do not believe it would be appropriate for you to serve any term of custody in the community.
I need to send you a message this behaviour is not acceptable. That also needs to be sent to the rest of the community. There needs to be the appropriate penalty to fit the crime. This is all weighed up together with your prospects of rehabilitation which, given the attitude expressed to Community Corrections, I do not hold much hope.
I accept you have concerns about your mental health. I will ask the warrant to be marked for Justice Health to give you a full psych assessment and afford you treatment for any health issues as diagnosed.”[32]
[32] Exhibit A, p 37–38.
Her Honour also said:
“I accept that there may well be consequences for you with Border Force in the event of a full-time custodial sentence, but you would have known that…and you chose to reoffend anyway (emphasis added)”.[33]
[33] Ibid, p 38.
That Applicant said in evidence that it was not until he received the cancellation of his Visa, when serving his sentence for this offending, that he first understood the seriousness of his offending and the consequence it had on his Visa. He had never read the various AVO’s that he received. The Tribunal notes the Applicant had difficulty reading. Albeit D continued to maintain contact with the Applicant, he now realises the seriousness of what he has done, and that it was his responsibility not to maintain or encourage contact with D, irrespective of whether she tried to maintained contact with him.
There was no evidence before the Tribunal that the Applicant was ever warned about the consequences of his offending, or that he was aware of the impact a custodial sentence may have on his Visa, including the possibility of mandatory cancellation. The remark by Her Honour that the Applicant would have known that, is not supported by the evidence before the Tribunal, nor is there any evidence to suggest there was a basis for that comment in the Sentencing Remarks.
The Tribunal accepts the evidence of the Applicant that he was not warned, and he was not aware of the consequences of his offending in relation to his Visa.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act, which relevantly provides that:
“4. The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.”
The Tribunal is satisfied the Applicant made the representations required by s 501CA(4)(a) of the Act. Accordingly, there are two issues before the Tribunal, namely:
(a)whether the Applicant passes the character test; and
(b)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.
Sections 501(6)(a) and 501(7)(c) of the Act provide that a person does not pass the character test if they have been sentenced to a term of imprisonment of 12 months or more. On 22 April 2022, the Applicant was sentenced in the Penrith Local Court to 18 months imprisonment, commencing on 7 February 2022, with a non-parole period of 12 months. This was as a result of having been convicted for Contravene prohibition/restriction in AVO (Domestic); and Threaten to distribute intimate image w/o consent (DV).[34]
[34] Exhibit A, p 32.
It is conceded by the Applicant that he does not pass the character test.
Having considered the offences for which the Applicant was dealt with in the Penrith Local Court, on 22 April 2022, and the sentence imposed, the Tribunal is satisfied the Applicant does not pass the character test. He has “a substantial criminal record”, within the meaning of s 501(7)(c) of the Act, and therefore does not pass the character test on account of s 501(6)(a).
The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his Visa to be revoked. Hence, the question for the Tribunal is whether pursuant to s 501CA(4)(b)(ii) of the Act there is another reason why the original decision should be revoked.
WHETHER THERE IS ANOTHER REASON WHY THE DECISION TO CANCEL THE APPLICANT’S VISA SHOULD BE REVOKED
When considering the exercise of the discretion in s 501CA(4)(b)(ii) of the Act, the Tribunal is bound by sub-ss 499(2A) of the Act, and therefore is to comply with any direction made under the Act. In this case, Direction No. 99–Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a Visa under s 501CA (“the Direction”) applies.[35]
[35] Note: On 3 March 2023, the former applicable direction, Direction No. 90, was revoked and replaced by Direction No. 99.
In deciding whether to refuse or cancel a non-citizen’s visa, or whether not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform the decision-maker’s application of the considerations identified in Part 2 where relevant to the decision. Those principles may be briefly stated as follows:
(1) “Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel and revoke cancellations of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) 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 8.5(2)[36] (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 measurable risk of causing physical harm to the Australian community.”
[36] Note: The direction states paragraph 8.55(2) but the Tribunal infers this is a typographical error.
Paragraph 6 of the Direction provides that:
“Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account, and they are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia; and
(5) expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
(a) legal consequences of the decision;
(b) extent of impediments if removed;
(c) impact on victims; and
(d) impact on Australian business interests.
I will now deal with each of those Primary and Other Considerations in turn.
Primary Consideration 1–Protection of the Australian Community
Paragraph 8.1 of the Direction requires decision-makers keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of the direction requires decision-makers give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
I will deal with each of those considerations in turn.
The Nature and Seriousness of the non-citizens conduct
There is no evidence before the Tribunal the Applicant had been formally warned, or was otherwise made aware, of the consequences should he engage in further acts of family (or domestic) violence. The Tribunal is satisfied the Applicant was not formally warned, or otherwise made aware, of the consequences should he engage in further acts of family (or domestic) violence.
The Applicant was born on the island of Tokelau, NZ, in May 1993 and came to Australia as a 12-year-old child with his parents, and younger brother. Two of his older brothers were already in Australia and they had obtained a house. The Applicant, his parents and brother came to Australia to join them.
The Applicant said, in Tokelau, it was normal to see acts of family (or domestic) violence. They did not have a police force on the island. The Tribunal infers the Applicant was saying they did not have an effective police force. He said he witnessed his mother being abused by his father. “It was always there”. He never looked at it as ‘wrong’. He said police watched his mother get beaten up.
He was educated in Australia until mid-way through year 10. He then had some employment in Australia, including at a chicken factory and a glass recycling business, where his brother worked.
The Tribunal formed the view the Applicant had a limited education and was not competent at reading. This was evident when asked by the Tribunal to consider the content of the Tribunal documents. The Tribunal accepts the Applicant never read the AVO’s initially imposed upon him, and there is no evidence that they were ever read to him or that he satisfactorily understood their content when they were imposed and served upon him.
He said his offending occurred because he was young, stupid, and “hung around” with the wrong people. The Applicant’s mother gave similar evidence. The Applicant’s mother and father both said they did not ask police for an AVO to be imposed against the Applicant. They said they did not fear him and that he would never hurt them. It was only when he was affected by alcohol that he changed. They wanted help to stop the Applicant’s use of alcohol and that is why they called the police for assistance. The Tribunal accepts the evidence of the Applicant’s parents.
The Tribunal formed the view the Applicant was not well educated or a worldly young man, and he and his family came from a difficult and less privileged background to the life they now enjoy in Australia.
The Applicant said his offending was usually the consequence of alcohol and drug use. He said in evidence he started taking “ice” in 2014 or 2015, about the time he left school. He also used “cocaine”. He could not afford the drugs; they were supplied to him by his cousins. He had drunk alcohol since he left school. He was also addicted to “weed”, which he used regularly. Albeit, the Applicant had never admitted to drug use, other than cannabis, the Tribunal accepts his evidence about use of other drugs as described.
The Applicant said A was his first girlfriend. He described her as a very toxic person who got him into trouble. He said the police accepted her story. They took drugs together, namely cannabis and ecstasy. He was asked if he was violent. He said, “it was not like that, it was a slap. She hit me and I said I had enough.”
The Applicant said in cross-examination that he could not recall what led to the incident with A. He again described her as toxic, and he did not know about cheating until he met her. He said she got him into drugs. He confirmed he did slap her, but he did not think it was right to hit anybody. The Tribunal notes the Applicant was 18 years of age at the time the AVO was imposed.
The Applicant’s Counsel submitted he was emotionally immature at the time. The Tribunal agrees with that submission.
The Tribunal notes police informed themselves about the relationship by viewing text message communications, between the Applicant and A, in forming the view an AVO was required to protect A.
The Applicant said his former partner B, the mother of three of his children, did not drink much, but his alcohol consumption increased after he met D.
There was a nine-year gap of offending, during which time he did not perform any act of violence. He said between 2011 and 2020 he was not drinking to the same level and was concentrating on his children.
The AVO involving B, in 2015, was because he had jealousy issues. He was not under the influence of drugs or alcohol at the time. He agreed his conduct was wrong when he broke her mobile telephone. He gave her a new mobile telephone.
The Applicant said they had a good relationship for nine years, with no violence. After about six years, he had been at her place, and she called it off. After that, it was an on and off relationship. The incident when he broke her mobile telephone occurred when he went to see the children. He said he should have left her house, rather than allow himself to get angry and react the way he did. This demonstrates the Applicant understands the gravamen of his offence.
The next event was when he broke the front door of his parent’s house. This occurred after he had been drinking. He also used drugs but did not tell police about the drug use. He described himself as “shy” and the only drug he ever admitted using was cannabis. The Tribunal accepts that he only disclosed at this time the use of cannabis but has not reached a level of satisfaction as to why the Applicant did not disclose the use of other drugs to police.
The Applicant said he had no memory of this incident. He was “really drunk” and was always on drugs after the breakdown of his relationship with B, which was in or about 2017. He could not remember what he said to police, and insofar as he was described as smiling and laughing when he spoke to them, he said he was still intoxicated when interviewed. He did not regard the conduct as funny. The Tribunal accepts the Applicant’s evidence.
He said his parents know the person, he depicted when drunk, “is not the real me”. He agreed any violence is serious. He also said that after this incident he tried to stop drinking and reduced his drug use. However, when he met D, they both drank and used drugs.
The incident with D, on 21–22 November 2020, occurred when they had been drinking, the Applicant was drunk and had used drugs. The Respondent’s Counsel referred the Applicant to the NSW Police Records which did not reference the use of drugs. The Applicant said he told them he was on drugs. The Respondent’s Counsel then suggested the only reference to drugs was cannabis. The Applicant said his drug use was embarrassing. The Tribunal is not satisfied that he did disclose the full extent of his drug use to police at this time.
The Tribunal is satisfied the Applicant only told police about his use of cannabis and not methylamphetamine or cocaine. The Applicant did explain to the Tribunal that he used methylamphetamine by smoking with a small glass pipe, which is a common form of using the drug, and gave some credibility to the Applicant’s evidence about his drug use. The Tribunal accepts the Applicant’s evidence that he was using methylamphetamine at this time.
The Applicant said on the night of 21 November 2020, he and D had smoked cannabis and he had smoked a pipe (of methylamphetamine) a couple of days before. He did not blame the alcohol, but he did not remember the offending. His first memory of that night was walking on the highway wearing no T-shirt. He did not remember pushing his father, and he did not remember the incidents with the mobile telephones. The Tribunal accepts the Applicant’s evidence including that he has no memory of the offending.
The Applicant said he was taken into custody, refused bail and was in jail for about a month. He was subsequently given intensive corrective orders, which he completed. He said they “placed an AVO on me and D, between me and her”. He did not read the AVO that was served upon him. It was only after the second offence, involving D, that he read the AVO.
The Applicant said D kept contacting him. He knew there was and AVO in place, but he did not know that he was not permitted to see her.

However, this is to be contrasted with the NSW Police Facts Sheet, dated 29 January 2021,[37] which records the Applicant agreeing that by contacting D he was breaching his AVO. The Tribunal does not accept the Applicant’s evidence that he did not know he was not permitted to contact D. The statement to NSW Police indicates he knew that contacting her was in breach of the AVO.
[37] Exhibit B, p 277–280 at p 280.
The Applicant’s evidence then became unclear, and he appeared to be confusing the two offences involving D. After further questions, the Tribunal understood him to be saying that following the first AVO, it was D who first breached the order, and they kept calling each other and maintained contact. The second AVO occurred after he had been drinking and smoking with his cousin. He agreed he started threatening her and had some memory of demanding she provide him with “a smoke or he would release the video”.
He said he attempted to give the impression he sent the message to someone, screenshotting the video had been sent, but then ‘unsent it’ through a function of Facebook Messenger. In response to the Tribunal, he was adamant he did not try to send it to her father, and he did not make the threat to induce D to have sexual intercourse with him. He said she left him. In the absence of any challenge to this evidence about the demand for sexual intercourse, the Tribunal accepts the Applicant’s evidence about that allegation. The Tribunal prefers the factual findings of the Learned Sentencing Magistrate that he did threaten to send the video to D’s father. The circumstances of the offending were serious.
The Applicant said in cross-examination it was when he was placed in immigration detention that he came to the realisation about the seriousness of his offending, and this pushed him to be the person he is today. He said he did not look for trouble in the immigration detention centre or prison.
The Tribunal referred the Applicant to inmate discipline action forms.[38] He was there reported for breaches, including failure to attend work. He said the prison was much stricter that other institutions in which he had been detained and he did not appreciate the non-compliance would enliven a report.
[38] Exhibit B, p 140–155.
The Tribunal read to the Applicant the South Coast Correctional Centre report, dated 25 January 2023, in which he was advised he was to receive a new cell mate and told staff “I’m not getting a cell mate, don’t put him in here”. The officer explained they were at capacity, and he would be getting a cell mate. The Applicant was reported to say, “don't bother I'll tell them to get out, whatever why I won't be getting a cell mate”. the officer then said, “if you threaten another inmate you will be charged with a Correctional Centre offence”. The Applicant’s reply, “I don't give a fuck I go home on the 6^th, what can you do, you'll have to put me in seg then”. The Applicant was described as speaking in a threatening manner.[39]
[39] Exhibit B, p 136.
The Applicant explained he had been told his new cell mate was a convicted rapist and he was upset and did not want that person to share his cell.
This evidence was unchallenged by the Respondent. This was not violent offending and insofar as he did not appreciate that failure to comply with prison procedures would attract a report, it is indicative of his unsophisticated personality with limited life’s experience and education.
The Risk to the Australian Community should the Applicant commit further offences of engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. 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.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen–whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the Applicant’s offending, including any escalation in offending, properly informs the assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct. The Direction that the Australian community’s tolerance of harm becomes lower as the seriousness of the potential harm increases is also a relevant consideration.
The Applicant’s offending is mainly domestic violence, and related to his demeanour in:
(a)creating or intending to create fear in others as a consequence of his conduct, such as breaking B’s mobile telephone, smashing D and his mother’s mobile telephone, harassing or threatening former girlfriends by his conduct as evidenced in the text messages observed by police in relation to A, the large volume of text messages sent to D, and the threat to send pornographic videos and images to other people,[40] and
(b)violence related conduct such as the admissions that he slapped A, punched D’s face, pushed his father, and the broke the front door to his parents’ home.
[40] Note: The Learned Sentencing Magistrate refers to “image”, but NSW Police refer to “explicit videos and images”, Exhibit A, p 37 and Exhibit B page 14 respectively.
As referred to earlier, the Learned Sentencing Magistrate, in respect of the last offence, said, “If anything, your behaviour is escalating.” The Magistrate noted that, shortly after completing the Intensive Corrections Order imposed following his offending on 21–22 November 2020, the Applicant re-offended, which involved the same victim.[41] The Tribunal respectfully agrees with that observation with the caveat that it appears from the evidence before the Tribunal, that despite the record indicating his response to supervision was deemed satisfactory, being compliant with instructions and attending all interviews, he did not, for various reasons, complete the rehabilitation and other support programs that were contemplated in that procedure. It is not apparent whether that was ever made clear to the Learned Sentencing Magistrate prior to sentencing. I will detail this in a moment in paragraph 108.
[41] Exhibit A, p 37 lines 37–42.
The Learned Sentencing Magistrate also said, “I accept you may have concerns about your mental health. I will ask the warrant to be marked for Justice Health to give you a full psych assessment and afford you treatment for any mental health issues as diagnosed.”[42] The Tribunal notes the Applicant refers to mental health issues including “PTS”[43] and “depression”.[44] Unfortunately, there was no evidence or report before the Tribunal from a psychiatrist, or psychologist, which reported on the Applicant’s mental health, or any opinion about his mental health condition save for the two notes contained in the Form 2A: Psychology Participation Information and Consent.[45]
[42] Exhibit A, p 38 lines 4–6.
[43] Note: The Tribunal infers to Applicant is referring to PTSD, being Post-Traumatic Stress Disorder.
[44] Exhibit B.
[45] Exhibit B, p 156–161.
The Psychological Programmes Progress Notes refer to two assessments, on 25 November 2020 and 28 January 2021.[46] The two NSW Government Justice Corrective Services, Form 2A: Psychology Participant Information Statement and Consent forms are dated 25 November 2020 and 1 March 2021. The latter is dated one day before the Applicant was sentenced in the Penrith Local Court, on 2nd March 2021.[47] The assessments made a number of observations. On 25 November 2020, a Psychologist wrote under a number of headings:
[46] Exhibit B, p 158–161.
[47] Note: The latter consent form is dated 1 March 2021, namely 31 days after the 28 January 2021 assessment.
Family: the Applicant was a second youngest child of 8 children; his father was always aggressive towards his family. He states, “my father physically abused my mother and siblings … my father is Diabetic Type 1 and that may be why he has anger issues”.
In referring to his three boys, the Applicant said he separated two years ago from B when the youngest child was a baby… it took him two years to get over their relationship breakdown. He has been in a new relationship for about four months (with D) and since that relationship his “ex” doesn't let him see their children. The Applicant said, “my grief and frustration forcing me to drink more and then became more agitated and aggressive like my father”. The Applicant became emotional and said, “but I don't want to be an aggressive man and I don't wish to come back to prison again.”
Impression: “Inmate appeared anxious and worried. There was also evidence he is suffering from situational depression and grief which may end up to be clinical depression (due to missing his children, childhood bully/abuse and trauma by his parents, and always felt powerless, useless and hopeless). Drinking became his coping for years. His past traumatic experiences seem to have left him more vulnerable/fragile to heightened stress levels. His protective factor at this stage is his faith and children. There were no signs of suicidal and/or self-harm ideation, intentions or plans at this time.
Action taken:
1–Discussed important of identifying triggers and signs of worsening mood/increasing anxiety/lack of managing anger and having proper Psychological treatment.

2–Psychoeducation about his role modelling his children. How to take responsibility and managing strong emotions like frustration, anger and grief.

3–F/up in 2–3 wks to monitor his MH, coping, vulnerability as priority + access allows. Inmate is informed about self-referral if need it.”
On 28 January 2021, a Senior Psychologist undertook an assessment and noted the Applicant denied any issues with his mental health and any prior history or diagnosis of mental health issues. It was not clear whether the Applicant fully comprehended or understood his relationship issues. His referral was closed, and the Applicant agreed to self-refer if necessary.
In the Sentencing Assessment Report, dated 25 February 2021, for the Penrith Local Court sentencing on 2 March 2021,[48] it is reported:
(a)the Applicant reported he proposed to reside with his sister upon his release. He described his relationship with D as mostly good, but with issues related to jealousy, which caused strain between them. He referred to binge drinking on occasions to deal with underlying and unaddressed mental health concerns, however he had not been diagnosed or treated for mental health issues. He did indicate symptoms of depression for which he used alcohol to help.
(b)assessment recommendations included a risk assessment in which the Applicant was assessed of medium risk of re-offending.
(c)if the Court made a Supervision Order, Community Corrections will supervise the Applicant and implement the following supervision plans namely referral to Alcohol and Other service; referral to EQUIPS: Family and Domestic Violence Program; direction to obtain a Mental Health Care Plan and referral to mental health service for assessment and anger intervention.
[48] Exhibit B, p 95–99.
In the Sentencing Assessment Report, dated 12 April 2022, for the Penrith Local Court sentencing on 22 April 2022, it is reported:
(a)he was previously supervised by Community Corrections in 2021 and his response to supervision was deemed satisfactory being compliant with instructions and attending all interviews. However, upon reviewing the various material relating to that previous assessment and having heard from the Applicant it is apparent that:
(i)he attended when requested for assessment, but the various programs and referrals were not completed;
(ii)he did not remember receiving reminders about attending…and his enrolment ceased;
(iii)he had difficulty engaging in group sessions because he was overly shy, embarrassed, found the process confronting and he did not like talking in a group environment;
(iv)he did not receive a Mental Health Care Plan. He went to a doctor to get signed up to see a psychologist, but he thought he could do it on his own, but he could not;
(b)The Applicant referred to issues with contacting his “parole officer”. That officer tried to get him into a Domestic Violence Program, and he started to do the recovery program for drugs and alcohol which included five video meetings, but his parole finished, and he did not seek further support after that;
(c)The Applicant also said that COVID–19 impacted upon his ability to engage with services.
It is plain the Applicant never received the level of treatment that was anticipated in that first Community Correction’s Supervision Plan. The Applicant said that he treated the plan seriously which the Tribunal accepts. Had it been otherwise, the Tribunal would expect the Community Corrections report to have expressly said so.
The Community Corrections Report did say:
(a)the Applicant maintained a positive relationship with his children;
(b)he intended to reside with the sister and her four children upon his release;
(c)he enjoyed a positive relationship with his elderly parents and siblings;
(d)he displayed a lack of insight into his actions and the severity of his offending behaviour with regard to D; he and D continued their relationship after the AVO and his offending with respect to the threat to distribute intimate videos and images was a consequence of him becoming angry when D declined to purchase cigarettes for him (which the Tribunal notes is generally consistent with his evidence); and that he “unsent” the videos;
(e)his drinking was to manage his emotions; he accepted that alcohol can make him act aggressively and his high level of intoxication affected his behaviour;
(f)the Applicant’s sister reported his relationship with D was quite toxic and it was common for the pair to have drunken arguments resulting in loud verbal abuse and assaults from both parties;
(g)he felt he had undiagnosed depression and anxiety but had no psychological intervention in the community;
(h)the Applicant was assessed as Medium/High risk of re-offending and Community Corrections said if placed on supervision Community Corrections would implement similar services as previously recommended.
The Applicant said he tried to get into a Domestic Violence Program, but it was full. He has commenced drug and alcohol class since being in Detention at Yongah Hill Immigration Detention Centre. The class is once a week for two months and he will receive a certificate upon completion. He has been in the course for two to three weeks. It is a group form of attendance. He said when asked how he was coping with that group environment he answered, “if you’re going to change you have to”. That comment gives the Tribunal some encouragement that the Applicant understands the seriousness of his offending, that he needs help, that he has, at least to some extent, sought help and is pursuing it, albeit he is at a very early stage in this process.
The Applicant’s parents, and sister, have confirmed their determination to continue to support the Applicant. His parents have moved to Queensland (“QLD”), and they expect he will live with them and thereby not return to the peer group that previously led him astray. There is also the suggestion that he may return to live with his sister. She has confirmed that arrangement, but his sister also said the whole of the family intend to move to QLD to join their parents.
The Applicant said he intends to continue with his rehabilitation programs should he be released back into the community. He is aware of a programme in Sydney that he intends to pursue, albeit he could not at the time recall the name of that service. The Tribunal accepts the Applicant’s expression of intent was genuine and that he could not remember the name of the service.
His former partner, mother of Child 4 (C) also said in evidence she has never had any issue with the Applicant during the period of their relationship or following. He was never violent towards her. She did not witness any issue with those with whom they associated. She continues to support him. She lives in Sydney and will assist him to attend any rehabilitation program in which he is enrolled and will encourage him to pursue such program as may be appropriate, to ensure he does not re-offend. She will also support him should he need to attend a mental health practitioner.
The Tribunal notes the Applicant has the continued support of his parents, siblings, and nephew to assist him to deal with his issues. His brothers have also offered the Applicant employment should he be released back into the community.
The Applicant’s offending involved relationship issues and related alcohol and drug consumption. The alcohol consumption was so significant that, in respect of his offending on 8 December 2019 and 21–22 November 2020, he has little or no memory of the events.
The Applicant’s offending involving A occurred when the Applicant was 18 years of age, including associated drug and alcohol issues involving both the Applicant and A. As is often the case, despite AVO’s being put in place to protect the alleged victim, the relationship continues. This occurred with A, but with no further allegations of violence. The Tribunal notes this continued relationship post an AVO being issued was also the case with D, to whom I will refer in a moment.
The Applicant’s offending, on 15 July 2015, was related to jealousy issues and the breaking of B’s mobile telephone, which caused B to fear the Applicant. B described the Applicant becoming unpredictable and more aggressive following the relationship breakdown. The Tribunal notes there is no further allegations of domestic violence involving B, and it was after the Destroy or Damage Property offence their third son, Child 3, was born in 2018. In cross-examination, the Applicant said B declined to provide a statement of support for the Applicant because he refused to “get back with her”.
The Tribunal accepts the relationship with D was dysfunctional, and the Tribunal is satisfied that both the Applicant and D abused alcohol and drugs, which is referred to in the Community Corrections Report. The Applicant’s sister described their relationship as “toxic”, with the pair engaging in drunken arguments, loud verbal abuse, and said assaults from both parties was common. Further, after the AVO was imposed, following the offending on 21–22 November 2020, the relationship continued.
The AVO’s involving the Applicant’s parents were put in place by NSW Police to protect the parents from physical harm by the Applicant. His offending, and breach of such AVO’s, both involved significant alcohol abuse, occurring 12 months apart, namely 8 December 2019, and 21–22 November 2020.
The background to the Applicant’s offending does not reduce the seriousness of the domestic violence offending. Such offending is abhorrent and must be viewed seriously. The fact the Applicant received a sentence of imprisonment of 18 months, with a non-parole period of 12 months, clearly indicates the Learned Sentencing Magistrate regarded the offending as serious, noting it occurred shortly after the conclusion of his Intensive Correction Order imposed on 2 March 2021. Any risk that such offending re-occur is unacceptable.

Nonetheless, the background and personal circumstances of the Applicant do give context to the offending. His engagement with rehabilitation services is also relevant. Applicant’s Counsel reminds the Tribunal the Applicant has had a significant realisation about the seriousness of his offending and its consequence after serving his sentence of imprisonment, having had his Visa cancelled, and having been in immigration detention.
The Applicant has been separated from his four children, which has impacted upon him mentally and the Tribunal infers will be a significant deterrence from further offending. He has been separated from his large immediate and extended family.
There is no evidence from a mental health practitioner, and the Applicant’s Counsel accepts the Tribunal has no evidence upon which a finding of a mental health diagnosis can be made. However, having regard to the evidence, the Tribunal accepts the Applicant's separation from his family has had a significant impact on him.
Respondent’s Counsel referred the Tribunal to the two Sentencing Assessment Reports in which the first assessed the Applicant at a medium risk of re-offending, and the second, dated 12 April 2022, at a medium/high risk. The Respondent submits the Applicant’s significant risk of re-offending is unacceptable.
Since the sentencing, on 22 April 2022, the Tribunal accepts the Applicant now has a far greater appreciation of the seriousness of his offending and the consequences. His separation from his children and family will have a significant deterrent effect upon him. He has the support of a large family, and a former partner, who will encourage him to engage in rehabilitation services and with a mental health practitioner, if appropriate. He has recognised the need to engage in ongoing support programs to address his violence, drug and alcohol issues and had commenced doing so, albeit none yet have been completed. The fact that he has engaged in group therapy is encouraging. He has abstained from alcohol and drugs since being in prison and immigration detention. He has recognised the circumstances of his personal relationships, the affect that the mutual use of drugs and alcohol had on both him and his relationship, and the fact these have been significant contributors to his offending. He is no longer in a relationship with D.
Given those factors, the Tribunal is satisfied the risk of re-offending is substantially reduced from the medium/high risk that was assessed in 2022, albeit any risk is unacceptable. The Tribunal agrees with Applicant’s Counsel that the Applicant has demonstrated, to some extent, a level of maturity since his period of offending. This gives the Tribunal further confidence that the risk of re-offending is significantly reduced.
Finding on Primary Consideration 1
When balancing all of the considerations in the Direction, and the evidence before the Tribunal, the Tribunal is satisfied that Primary Consideration 1 still weighs in favour of the Respondent and the non-revocation of the Applicant’s Visa cancellation.
Despite the Applicant not yet having engaged in the programs expected as part of the Intensive Corrections Order, there are some positive matters contained in the Community Corrections Report. Having particular regard to those personal matters of the Applicant, the circumstances of his dysfunctional relationships, in particular his relationship with D, and the degree of confidence that the risk of re-offending is significantly reduced, this Primary Consideration should be given medium weight in favour of the Respondent and the non-revocation of the Applicant’s Visa cancellation.
Primary Consideration 2–Family Violence committed by the non-citizen
Paragraph 8.2(1) of the Direction informs the Tribunal of the Government’s serious concern about conferring on non-citizens who have engaged in family violence. That concern is proportionate to the seriousness of the family violence engaged in by the non-citizen as referred to in paragraph 8.2(3).
Paragraph 8.2(3) provides that when having regard to the seriousness of the family violence, the following factors must be considered, where relevant:
(a)the frequency of the non-citizen’s conduct and whether there is a trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence; and
(c)rehabilitation achieved at the time of the decision, including the extent to which the person accepts responsibility for the family violence and related conduct; the extent to which the non-citizen understands the impact of his or her behaviour on the abused and witnesses; and efforts to address factors which contributed to that conduct.
Paragraph 8.2(3)(d) also requires the Tribunal to have regard to whether the non-citizen has re-offended since formally been warned or made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence; including warnings about the non-citizen’s migration status should he or she engage in further acts of family violence.
The circumstances of the Applicant’s family (or domestic) violence, and the Applicant’s background and personal circumstances is detailed above, and the Tribunal will not repeat it.
Each act of family (or domestic) violence considered alone might not reflect the more serious type of offending of its type, but when considered as a course of conduct over a period of time, and the increasing level of seriousness demonstrated in the Applicant’s last two offences, in 2020 and 2021, the Direction informs the Tribunal of the serious concerns of the Government in extending to the Applicant the privilege of remaining in Australia.
The level of rehabilitation undertaken to date is minimal. The Applicant is yet to complete a program. The Tribunal is satisfied the failure to engage in rehabilitative programs is not wholly the fault of the Applicant. The inability when in custody to enrol due to the program being full, or the fact that his sentence was to end, which meant he could not commence the program were unavoidable impediments. The Tribunal also accepts that the COVID–19 pandemic impacted upon the Applicant’s ability to engage in rehabilitation programs.
The failure of the Applicant to respond to contacts by Odyssey House in 2021 and the Applicant’s evidence he did not receive follow up contacts may be explained because the documents before the Tribunal suggest Odyssey House may have had the wrong contact telephone number. Nonetheless, the Tribunal is to have regard to the rehabilitation received at the time of decision.
The Tribunal is satisfied the Applicant was not formally warned or been made aware of by a Court, law enforcement or other authority about the consequence of further acts of family (or domestic) violence.
As previously referred, when sentenced, on 22 April 2022, the Learned Sentencing Magistrate said, “I accept that there may well be consequences for you with Border Force in the event of a full-time custodial sentence, but you would have known that…and you chose to continue to reoffend anyway”. As the Tribunal has said, there is no evidence before the Tribunal to that effect and the Respondent has not alleged or referred to evidence that identifies any warning was given, or that the Applicant was made aware about the consequence of further acts a family (or domestic) violence. The Tribunal accepts the Applicant’s evidence that he did not appreciate the seriousness of this offending and was not aware of the consequences of further acts of family (or domestic) violence until he was last before the Court and sentenced to a period of imprisonment to be served, where he was subsequently given notice of his Visa cancellation.
The Tribunal is satisfied the Applicant is now fully aware of the consequences of his offending, and if he is returned to the community, the consequences of such offending in the future. The Respondent submits the Applicant blames others for his family violence, which submission the Tribunal accepts; for example, he was critical of A and described her as “toxic”. He was critical of D and their mutual use of drugs and alcohol, and that she too was violent towards him. But those factors do not mean the Applicant does not have an understanding of his behaviour and its impact upon the victims. He expressed his regret and apologised for the impact his offending had on D. He understands his inappropriate behaviour is underpinned particularly by alcohol abuse. He has expressed his determination to abstain from abuse drugs and alcohol in the future. His resolve to do so has not yet been tested in the community but the Tribunal accepts that expression of intent was genuine.
The Respondent relies on the Respondent’s SoFICs, under heading Family Violence, which the Tribunal has taken into account. The Respondent refers to numerous AVO’s made between 14 June 2011, and 15 February 2023.[49] However the Tribunal notes they represented an interim, or a number of interim AVO’s made before a final AVO was issued. This was the process which arose as a result of a particular event or a relationship, such as what occurred in 2011. The 2023 AVO was the result of a request made by D when she became aware of the Applicant’s pending release from custody. It did not arise from a separate incident of family violence. Therefore, despite the number of AVO’s referred to by the Respondent, they are misleading and do not necessarily represent separate acts of violence or inappropriate behaviour.
[49] Respondent’s SoFICs, p 12 [62].
Finding on Primary Consideration 2
The Direction informs the Tribunal of the Government’s serious concerns about family violence. Despite the Applicant’s personal circumstances, the nature of his family (or domestic) violence offences as discussed above, and the very limited rehabilitation undertaken to date, means that Primary Consideration 2 weighs against the Applicant, and in favour of the non-revocation of the Applicant’s Visa cancellation.
Had the offending been more serious, the Tribunal would have weighed this Primary Consideration heavily or significantly (less than heavy weight) against the Applicant. However, having balanced all of the relevant factors, the Tribunal has decided this Primary Consideration should still be given medium weight, in favour of the Respondent and the non-revocation of the Applicant’s Visa cancellation.
Primary Consideration 3–The strength, nature, and duration of ties to Australia
Paragraph 8.3(1) of the Direction sets out that decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(2) provides that in considering a non-citizen’s ties to Australia, the Tribunal should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(3) and (4) of the Direction sets out that the Tribunal must consider the strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely, or other ties to the Australian community, having regard to:
(a)the length of time the non-citizen has resided in the Australian community, noting that:
(i)Considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
(ii)more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii)less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
Again, much of the relevant evidence has been addressed above and the Tribunal will not repeat it. The Applicant’s immediate family, save for his eldest brother and his family who reside in Samoa, and extended family all reside in Australia. The Applicant arrived in Australia when he was 12 years of age, with his parents and younger brother, and has remained a permanent resident in Australia, with his family, to date.
The Applicant has four children, all of whom are born in Australia. His children have two different mothers. He enjoys a close and loving relationship with those children who the Tribunal infers are Australian citizens or permanent residents. They are as follows:
(a)Child 1, born on 17 July 2013, lives with his mother: B;
(b)Child 2, born on 28 February 2015, lives with his mother: B;
(c)Child 3, born on 2 April 2018, lives with his mother: B; and
(d)Child 4, born on 20 April 2019, lives with her mother: C.
The Applicant has a large extended family residing in Australia, who were referred to in his Personal Circumstances Form, including four grandparents.[50] The Tribunal accepts the Applicant’s evidence his family often have large gatherings, and he enjoys a close relationship with his extended family.
[50] Exhibit A, p 60–74.
The Applicant’s relationship with his parents is an important consideration. Both are in poor health. His father is wheelchair bound. Both parents have relied heavily on the Applicant when he resided with them. They regarded him as their carer and intend he resume that role should he be returned to the community and join them in QLD.
Given the Applicant has been ordinarily resident in Australia, since he was 12 years of age, he now knows nothing of his birthplace, Tokelau Island, NZ, or mainland NZ, and has no connection with NZ or any resident of citizen of NZ.
The Applicant has had some employment, while living in Australia, but has not remained permanently employed. He has offers of employment should he return to the community, which employment he intends to pursue.
Finding on Primary Consideration 3
The Applicant has no ties to NZ, other than it being his place of birth. He has lived in Australia for most of his life. The Direction informs the Tribunal that, having regard to the length of time he has resided in Australia, considerable weight is to be given in favour of the Applicant.
Having balanced the Direction and the evidence, the Tribunal is satisfied this Primary Consideration weighs significantly,[51] in favour of the Applicant and the revocation of the Applicant’s mandatory Visa cancellation.
[51] Note: namely less than heavily, and more than medium weight.
Primary Consideration 4–The best interest of minor children in Australia affected by the decision
Paragraph 8.4(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under s 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision.
Paragraphs 8.3(2) and 8.3(3) of the Direction respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision regarding the mandatory cancellation is made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18 years-old, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has four natural children to whom I have referred ranging in age from four to ten years of age. The mother of Child 1, 2 and 3 is B. The mother of child 4 is C. The interests of Chid 1, 2 and 3 are identical and I will deal with them separately to Child 4.
Child 1, 2 & 3
In regards the offending in which the Applicant broke B’s mobile telephone, in July 2015, Child 1 and 2 were present, but both were still very young, namely, two years old, and five months respectively. There is no evidence to suggest the offending had any impact upon either child. Child 3 was born approximately three years post offending. The interests of these children are the same.
Since the relationship ended, all three children have continued to live with B, but the Applicant has maintained regular contact with them. He last spoke to the children the week before this hearing, by telephone. He calls them most days and on weekends. He also keeps in contact with B, and she updates him on matters relating to the children.
The Applicant said he provided financial support, including providing cash. They would do things together as a family and he would contribute to the cost. He paid for nappies, food, medicine, and his parents assisted as well.
The Respondent’s Counsel referred the Applicant to the Sentencing Assessment Report, dated 22 April 2022,[52] in which the Applicant said, at the time of his offending, he was unemployed, looking for employment, and was not eligible for Centrelink payments. He was also referred to the NSW Police Fact Sheet,[53] which refers to his 2019 offending, at which time it is reported he was unable to pay child support. The Applicant said that at first, he did not want to pay child support, but then he couldn't afford it. The Tribunal accepts the Applicant provided some limited financial assistance but by 2019 he was unemployed and had no capacity to contribute financially.
[52]Exhibit B, p 89–94 at p 90.
[53]Exhibit B, p 221.
The Applicant’s family confirmed he enjoyed a close and loving relationship with his three children. His mother and father gave evidence about the bond and love between the Applicant and all of his children. His parents see the children regularly, often on weekends when they would stay at their home when the Applicant also resided with them. The Applicant’s mother said they would like his children to come and stay with them in QLD (including Child 4 to whom I will refer in a moment). When they come to QLD, they will also have the opportunity to see the other children within the family.

In her statement, the Applicant’s mother described the Applicant’s relationship with his children as one of pure love and joy and said he would do anything to protect them. She said the children would come over to visit them and they would always ask for their father. She described it as being very difficult for them to cope with the separation from the Applicant because the children were so attached to him, they all love him and never a day goes by when they do not think about him. She will continue to support the Applicant. His father said the Applicant’s relationship with his children is unbreakable and they are his life.
The Applicant’s sister also confirmed the close and loving relationship between the Applicant and his children. The Applicant and the children lived with her for two years. She said she thinks he has changed and referred to the way he talks about his children. She talks to him often and he always speaks about his children.
She said in her statement that she has witnessed the very good relationship the Applicant enjoyed with his children and said he was very involved in raising, providing for, and looking after them.[54] Since the Applicant has been in custody, there have been a lot of issues for the children. She will continue to support the Applicant.
[54]Exhibit H.
In the Applicant’s brother’s (“Mr AK”) statement,[55] Mr AK referred the emotional and physical toll the Applicant’s relocation would have on his children. In the statement of his older brother (“Mr TK”), dated 2 August 2023,[56] he too confirmed the close and loving relationship between the Applicant and his three children. He said not being able to support his children from overseas is the Applicant’s greatest concern. He described the emotional toll the permanent separation would have on the children not being able to see their father. The Tribunal also notes the statement of the Applicant’s nephew.[57]
[55]Exhibit I.
[56]Exhibit J.
[57]Exhibit K.
Child 4
Child 4 is four years old and lives with her mother, C, who gave evidence. She was three years old when the Applicant went into prison.
The Applicant has always had a close and loving relationship with Child 4, and he continues to maintain contact with her by telephone in the same way he does with Child 1, 2 and 3. He last spoke to her two days before the hearing.
The Applicant said that he would take Child 4 to day care and attended her school once in 2021. Before he was imprisoned for the current offence, he saw her fortnightly. He was then living with his parents.
The Tribunal accepts the Applicant would engage with Child 4 in a same or similar way that he did with Child 1, 2 and 3 and that the relationship his family described with regards Child 1, 2 and 3 equally applied to Child 4.
C, the mother of Child 4, said in her statement,[58] and confirmed in her oral evidence, that the Applicant and Child 4 share a close relationship and communicate every day, usually before bedtime or after school. The Applicant and his family spend a lot of time with Child 4, especially when C’s second child (by a different partner) was born. Child 4 then spent two weeks with the Applicant and his family. C corroborated the Applicant’s evidence that prior to being imprisoned he would see Child 4 fortnightly and attended school events and had Christmas’ and birthdays together. C, in her evidence, said the Applicant does not provide financial support to Child 4, but is there for her physically and emotionally. The Tribunal accepts C’s evidence.
[58]Exhibit E.
In C’s statement, she said that she and the Applicant do not have a future together, but they do share a communicative co-parent relationship and if relocated to NZ she opined that it would have a severe negative impact on Child 1, 2 and 3, together with Child 4. They are very attached and therefore his relocation would have a very negative effect on Child 4’s well-being.
C said the Applicant had a similar loving relationship with his other children. Her current partner, their child and Child 4 have been accepted as part of the Applicant’s family and the children connected recently at a BBQ.
In cross-examination, C was consistent in her evidence. She repeated the level of contact the Applicant has with Child 4, and on weekends they would have a video call. She repeated he would do drop off and pick up at preschool, attended an Easter Hat Parade and Father's Day functions. He is very involved with his daughter.
C said if the Applicant returned to NZ, she will make sure the contact continues but it will still affect Child 4 in the long run because she will be without physical contact. She would allow her to visit him in NZ.
In re-examination, C said her daughter is still very little and does not comprehend why the Applicant is not there with her. She was very sure that permanent separation would have a significant impact upon Child 4.
Nieces and Nephews
The Applicant’s eldest brother and family, including five children one of whom are under 18 years old, have moved to Samoa and the youngest child is not a child living in Australia for the purpose of the Primary Consideration.
Mr SK (Applicant’s brother) is about 43–44 years of age. He has three boys aged approximately 16, 13 and 10 years. They live in Sydney. Mr SK and his partner are separated, but the Applicant would see the boys when they came to visit his brother and he would take them to his sister's house, where he was living. He sees them and talks to them by telephone and on Facebook.
Mr AK (Applicant’s brother) is 37 years of age, with two boys, aged 10 and six years, and three girls, aged between seven and two years. The Applicant said they lived in Sydney and would come over to his sister's place or his parents place all the time, and he had a lot of contact with them. For a period of time, Mr AK and the children lived with the Applicant and his parents. The Applicant said that these children would be really upset should he be relocated to NZ. They look up to him and would not be happy if he no longer resided in Australia.
Mr TK (Applicant’s brother) is 34 years of age, with two sons aged 10 and three years, and three daughters aged eight, five and two years. He would see the children with the same regularity that he would see his other nieces and nephews, which was very regular.
The Applicant’s sister is 44 years. She has a son, aged 16 years, and three daughters, aged 17, 10 and nine years. The Applicant said that he grew up with his sister's children and he's like a father to them. They lived together in the same house for a number of years and lived with them for two years prior to his sentence of imprisonment. When he was working, he helped support them and gave them money and his sister held his credit card for him to provide some financial management of his income. He took the children to the shops, school, football, and he would also have his children join them when they stayed with him.
The Applicant said if he was no longer in Australia, his nieces and nephews will miss him, and it will hurt them not seeing him around. He also referred to three children of his cousins who are under 18 years of age whom he also has regular contact with, and who would be affected in a similar way as to his nieces and nephews.
The Tribunal accepts the Applicant has a particularly close relationship with each of his four natural children. He has a parental relationship with each child.
The Tribunal also accepts the Applicant has a strong relationship with his nieces and nephews. In relation to his sister’s children, he has had, to some extent, performed a parenting role particularly when residing in the same house. There is a current intent that the Applicant will return to live with his sister and to some extend he may resume a supportive parenting role albeit to a limited extent, in regards those children.
The Applicant performed, to a lesser extent, a parenting role for the children of Mr AK when they lived with the Applicant and his parents.
Publications
The Applicant’s Counsel provided a number of publications and was asked to identify which publication he relied on and the relevant information within each.[59] It was in relation to this Primary Consideration the Applicant’s Counsel referred to an article by Stanford Psychologist Ian Gotlib, in the Stanford News publication, dated 26 June 2018, of three pages relating to the impact of separation from parents on a child.
[59]Exhibit C.
Without detailing its content, and in summary, the article referred to younger children, who depend on their parents for their emotional well-being. The author wrote that unplanned separation from parents is among the most damaging events a young child can experience, according to trauma research. According to this article, a supportive and nurturing relationship plays a critical role in healthy development and protects children from psychological consequences, such as significant stress, and helps regulate their emotions. The article also says that early life stress is constantly associated with behavioural problems in children with immediate and long-lasting consequences when it is severe and cumulative following separation from parents.
Finding on Primary Consideration 4
The Applicant has a large and close family. There are a number of children to be considered and the Tribunal has taken into account the interest of each child, their ages and the length of time until each will turn 18 years of age. It was only the ages of the Applicant’s cousins’ children that were not clear on the evidence, and the Tribunal has given them less weight than the other children referred to.
The children of each brother and sister are given the same weight, save for the children of the Applicant’s sister have been given more weight, given the length of time they have lived with the Applicant and their relationship with him. Mr AK’s children have also been given some additional weight (albeit less than the Applicant’s sister’s children) because they too have lived with the Applicant, and he has made a contribution to them and their day-to-day activities.
It is the Applicant’s relationship with each of his four natural children that the Tribunal gives the greatest weight when determining this Primary Consideration. The Respondent submits that this Primary Consideration be given moderate weight in favour of the Applicant. The Tribunal respectfully rejects that submission. The fact the Applicant can still maintain contact with the children by telephone and other electronic media when viewed against the young age of his four children, together with those other young children to whom I have referred, does not provide an acceptable, preferable, or satisfactory alternative to the Applicant remaining present in Australia and being a physical presence and support to those children.
Having considered the interests of each of the children, including individually as appropriate, the age of the children until they attain the age of 18 years, and taking into account the best interests of the children as a whole, Primary Consideration 4 weighs heavily in favour of the Applicant and the revocation of his Visa cancellation.
Primary Consideration 5–The expectations of the Australian Community
In making the assessment for the weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.5(2) of the Direction directs that a 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 are 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
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
“This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.”
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs (“FYBR”),[60] which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[61]
[60][2019] FCAFC 185.
[61] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision-maker must have regard to.
Consistent with the Direction, the Australian community would expect the Applicant’s Visa to remain cancelled. It is a matter of the weight the Tribunal ascribes to this Primary Consideration.
The Applicant has spent the majority of his life in Australia. His immediate and extended family all reside in Australia. He has a very close relationship with his ageing parents, and they regard him as their carer. They look to him to provide them with support in the future.
It is an important consideration that the Applicant’s offending has been acts of family (or domestic) violence. They have occurred when drunk, and in the case of two of his partners, A and D, in dysfunctional relationships. The Applicant’s behaviour must be viewed against a personal background of a difficult and unsophisticated upbringing, infected with family (or domestic) violence, limited education, and lack of maturity and life experience. He has raised a belief that he suffers from undiagnosed mental health issues and although I have made no finding with regards his mental health, it is apparent that in a psychological assessment he appeared anxious, worried, with signs of situational depression.
The state of the evidence before the Tribunal in terms of his mental health is wholly unsatisfactory, but having had the opportunity to assess the Applicant, the Tribunal is satisfied that the Applicant has had a number of personal issues impacting upon him, is poorly equipped to deal with relationship issues, and his lack of maturity, are all relevant to the consideration of the weight to be given to this Primary Consideration.
Finding on Primary Consideration 5
Having regard to the nature of the offending, the risk of the breaching the expectations to which I have referred, the expectation of the Australian community is that the Visa remains cancelled. The fact that his offending involves acts of family (or domestic) violence raises serious character concerns.
However, there are matters personal to the Applicant, and the nature of past relationships, and the Applicant’s parents who were the subject of AVO, which need to be weighed against his offender history in determining the weight that is to be given to this Primary Consideration. Taking into account the Directions, and those matters to which the Tribunal has referred, the Australian community would make some allowance and reduction in the weight to be given in the circumstances of this matter, and accordingly it is appropriate that Primary Consideration 5 be given medium weight in favour of the Respondent and the non-revocation of the Applicant’s Visa cancellation.
Other Considerations
It is necessary to consider the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
Other Consideration (a)–Legal Consequences of the Decision
No evidence has been led that enlivens the Tribunal’s obligation to consider this Other Consideration. Accordingly, neutral weight is given to Other Consideration (a).
Other Consideration (b)–Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is still a young man, 30 years of age. There is no language or cultural barrier should he be returned to NZ.
Importantly however, the Applicant has spent the significant part of his life in Australia, is of limited education, has no specialist working skills, and has relied on employment to some extent through his brothers’ involvement in glass recycling. He has had difficulty finding employment in Australia. His ability to obtain employment in NZ is, at best, unclear and potentially poor. His likely employment would be that of a factory worker or unskilled labourer. He has employment available to him should he remain in Australia.
The Applicant’s father expressed his serious concern for the well-being of the Applicant should he return to NZ. Those fears related to what he believed were the many gangs, drugs, and “bad people there”. That was a perception he held from his experiences when he lived in NZ and the was no evidence to support that those fears were based on fact about life in NZ today, save for the Applicant’s father saying he has seen recent YouTube videos which confirm his concerns. He also expressed a fear for his son’s health should he be further, and permanently, separated from his children; and expressed concern for the Applicant’s ability to cope, which may lead to drug use, suicide, or both. He does not believe the Applicant will cope and the father became very distressed when giving evidence.

The Tribunal is satisfied the Applicant will face a number of difficulties should he relocate to NZ. He knows no one in NZ. The loss of a significant support base, namely his family, their limited ability to provide emotional or financial support, the absence of any identifiable economic support in NZ other than the inference he would be entitled to the social welfare and economic supports available to other NZ citizens, together with his limited education, will likely impact upon the Applicant’s ability to establish himself and maintain the same basic living standards generally available to other NZ citizens. This will likely impact upon his mental health, as will the separation, from his children in particular and family generally.
Taking into account the issues the Applicant will face if he returned to NZ, but also noting the Applicant has been drug and alcohol free since his imprisonment and detention, and the limited evidence provided to the Tribunal about his prospects upon return, and balancing the general lack of language and cultural barriers, it is appropriate that significant weight be given to Other Consideration (b) in favour of the Applicant and the revocation of the Applicant’s Visa cancellation.
Other Consideration (c) – Impact on Victims
Paragraph 9.3 of the Direction requires that decision-makers must consider the impact of the s 501 or s 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen is being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The Respondent referred the Tribunal to NSW Police Report,[62] which reports that on 30 January 2023, shortly before the Applicant’s release date from prison, D went to the police station and asked for an extension on the AVO. NSW Police reports that D still held a fear for her safety and was worried she may experience violence should their paths cross. She was also concerned for her safety as the Applicant knew where she lived and may seek her out.
[62]Exhibit B [ages 10 – 11].
The Applicant was served with a notice of the application on 2 February 2023.[63] The Notice to the Applicant under heading Reasons for making the application and the duration sought restated the contents of the NSW Police Report. The Respondent submits this afforded the Applicant procedural fairness. The Tribunal agrees with that submission.
[63]Exhibit B p 121–123.
The Tribunal is satisfied D continues to fear the Applicant and it is appropriate to attribute some weight to this Other Consideration. The evidence is limited but having regard to the evidence it is appropriate that slight weight is given to Primary Consideration (c) in favour of the Respondent and the non-revocation of the Applicant’s Visa cancellation.
Other Consideration (d) - Impact on Australian Business
No evidence has been led that enlivens the Tribunal’s obligation to consider this Other Consideration. Accordingly, neutral weight is given to Other Consideration (d).
CONCLUSION
Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s Visa, either:
(i)the Applicant must be found to pass the character test, or
(ii)the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
Based upon the Applicant’s serious offending, he does not pass the “character test” as defined in s 501(6)(a) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to those considerations referred to in the Direction.
The Tribunal is particularly conscious of the serious concerns expressed by Government about non-citizens who engage in family violence as reflected in the Direction, in addition to his failure to pass the “character test”.
The Tribunal weighs each of the considerations as follows;
(a)Primary Consideration 1–Protection of the Australian community–is given medium weight in the Respondent’s favour.
(b)Primary Consideration 2–Family violence–is given medium weight in the Respondent’s favour.
(c)Primary Consideration 3–The strength, nature, and duration of ties to Australia–is given significant weight in the Applicant’s favour.
(d)Primary Consideration 4–Best interests of minor children–weighs heavily in the Applicant’s favour.
(e)Primary Consideration 5–Expectations of the Australian community–is given medium weight in the Respondent’s favour.
(f)Other Consideration (a)–Legal consequences of the decision–is given neutral weight.
(g)Other Consideration (b)–Extent of impediments if removed–is given significant weight in the Applicant’s favour.
(h)Other Consideration (c)–Impact on victims–is given slight weight in the Respondent’s favour.
(i)Other Consideration (d)–Impact on Australian business interests–is given neutral weight.
Having ascribed weight to each of the Primary and Other Considerations, the Tribunal must now weigh the various considerations against each other and determine whether there is another reason for the revocation of the Applicant’s Visa cancellation.[64] In so doing, the Tribunal remains conscious of the Directions in relation to family (or domestic) violence and the view of the Australian Government about offending of that type.
[64] see CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138.
The decision is finely balanced. Having undertaken that process there are matters personal to this Applicant which have been important considerations in the reduction of Primary Considerations 1–3 inclusive, and the slight weight given to the impact on the victim which offending arose in circumstances of a volatile relationship.
The Tribunal is satisfied the Applicant has the support of his immediate family and C in ensuring he is given support including engaging in rehabilitation programs following his release. The Tribunal is also satisfied the Applicant has, albeit it to a limited extent to date, started to engage in group rehabilitation, despite his previous experience in which he found group sessions difficult, and his expressed intention to continue with such programs was genuine, which contribute to the reduction in the risk of the Applicant re-offending. This is important when noting that despite the Community Corrections engagement being deemed satisfactory, the Applicant did not, for various reasons complete the proposed programs.
Importantly, the best interest of the minor children including his four natural children all of whom are citizens of Australia, which weigh heavily in favour of revoking the visa cancellation, when combined with the significant weight attributed to the strength nature and ties to the Australian community and the extent of the impediments if removed from Australia, outweigh the Primary and Other considerations to which I have referred.
As a consequence, the Tribunal is satisfied that for the purpose of subparagraph 501CA(4)(b)(ii) there is another reason to revoke the mandatory cancellation of the Applicant’s Visa, and accordingly the Tribunal exercises the discretion to revoke the mandatory cancellation.
DECISION
For the reasons outlined above, and pursuant to s 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision dated 6 June 2023 to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa granted on 1 February 2010.

I certify that the preceding two hundred and twenty-six (226) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

...........[Sgnd]...................
Associate

Date of Decision: 31 August 2023

Date of Hearing: 8 & 9 August 2023

Applicant: Fardin Nikjoo (Nikjoo Lawyers)

Counsel for the Respondent:
Madisen Scott (Australian Government Solicitor)

[2023] AATA 2780

31 August 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date of Decision:	31 August 2023
Date of Hearing:	8 & 9 August 2023
Applicant:	Fardin Nikjoo (Nikjoo Lawyers)
Counsel for the Respondent:	Madisen Scott (Australian Government Solicitor)