Kirk and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2022] AATA 4858

Kirk and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4858 (8 November 2022)
Division:GENERAL DIVISION
File Number(s): 2022/6092
Re:William Paul Kirk
APPLICANT

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

reasons for Decision
Tribunal:Member Dr C Huntly
Date:08 November 2022
Place:Perth
On 17 October 2022, I made the following decision:

The Reviewable Decision, being the decision of the Delegate dated 21 July 2022, not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa pursuant to 501CA(4) of the Act, is set aside and substituted with the decision that the cancellation of the applicant’s visa is revoked under
s 501CA(4)(b)(ii) of the Act.
These are my written reasons.
.............[Sgd]...........................................................
Member Dr C Huntly
Catchwords
MIGRATION – Migration Act s 501CA(4) – decision of a delegate of the Minister not to revoke the mandatory cancellation of the applicant’s visa – whether there is “another reason” to revoke the cancellation of the applicant’s visa – Applicant is a 27-year-old-male – sexual offences against a child over 13 and under 16 – consideration of “Family Violence” – reference to relevant definitions of family relationships in the Migration Act – interests of children in Australia – “male child” and “female child” – Tribunal determined there is “another reason” – reviewable decision set aside and substituted with decision to revoke visa cancellation
Legislation
Migration Act 1958 (Cth)
Cases
Benning v Sydney City Council (1958) 100 CLR 177
Bread Manufacturers of NSW v Evans (1981) 180 CLR 404
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514
CZCV and Minister for Home Affairs [2019] AATA 91
Dore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 1750
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Dunasemat and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 1967
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 66.
Houssein v Dept of Industrial Relations & Technology (1982) 38 ALR 577
Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88
Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3445
James and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2390
JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762
Kazal v Thunder Studios Inc (California) [2017] FCAFC 111
King and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4391
Kohli and Minister for Immigration and Border Protection [2017] AATA 1326.
Minister for Home Affairs v HSKJ (2018) 266 FCR 591
Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175
Monk and Comcare [2018] AATA 224
Markaj and Minister for Immigration and Border Protection [2020] FCA 1511
Nigro v Secretary to the Department of Justice [2013] VSCA 213;
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
O'Sullivan v Farrer (1989) 168 CLR 210;
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
PNLB and Minister for Immigration and Border Protection [2018] AATA 162 [22].
Rathborne v Abel (1964) 38 ALJR 293
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545.
Re Peat Resources of Australia Pty Ltd; Ex parte Pollock [2004] WASCA 122
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Taylor and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2889
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021).
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018).
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014).
REASONS FOR DECISION
Member Dr C Huntly
8 November 2022
the application

The Applicant seeks review of the decision of a delegate of the Respondent (Minister) dated 21 July 2022 not to revoke the cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa (the Visa) pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
The Visa was cancelled under s 501(3A) of the Act on the basis that the Applicant did not pass the character test, by reason of his substantial criminal record, and that he was serving a full-time term of imprisonment for an offence against a law of a State.
The application is made pursuant to s 500(1)(ba) of the Act which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) for review of decisions of a delegate of the Minister made under s 501CA(4) of the Act.
the issue for determination
The issue for determination is whether the Tribunal should exercise the power under s 501CA(4)(b) of the Act to revoke the decision to cancel the visa, made under s 501(3A) of the Act. This will require determination of:
(a)whether the Applicant passes the character test (as defined by s 501 of the Act); and
(b)if he does not pass the character test, whether there is “another reason” why the decision to cancel the Applicant’s visa should be revoked.
background
The Applicant is a 27-year-old citizen of New Zealand who first travelled to Australia in 2008,[1] before settling in Australia in 2010, aged 15 years.[2]
[1]The Applicant initially came to Australia for a period of 7 days for a family holiday.
[2]G27
On 3 November 2021, the Applicant was convicted in the Perth District Court of four counts of indecently deals with a child over 13 and under 16.[3] The Applicant was sentenced to a period of imprisonment of 9 months in respect of each conviction, to be served concurrently.[4]
[3]Pursuant to s 321 of the Criminal Code 1913 (WA)
[4]G4/33.
On 10 December 2021, the Applicant was given notice that his visa had been cancelled under s 501(3A) of the Act (the original decision).[5] The visa was cancelled on two grounds:
(1)the Applicant had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory (ss 501(6)(a) and 501(7)(c)); and
(2)a court in Australia or a foreign country had convicted the Applicant of one or more sexually based offences involving a child (s 501(6)(e)(i)).
[5]G19.
On 13 December 2021 the applicant completed a “Request for revocation of a mandatory visa cancellation under S501 (3A)”, together with a “Personal Circumstances Form” in the standard format.[6] On 20 June 2022, the Applicant was requested to provide further information by the delegate, relating to any applicable “Family Violence Restraining Orders and/or Violence Restraining Orders”.
[6]G8/44 – 48; G9/48 – 62.
The Applicant responded on 27 June 2022 indicating that he did not have full copies of either of the relevant restraining orders. In his reply, the Applicant stated that: [7]
The one that was dropped was placed on me from my ex-girlfriend after I was found guilty. She then later dropped the restraining order so I could talk and see my kids [sic]. She seen [sic] how much the restraining order was hurting both myself and my two kids.
Since being put in [immigration detention] I speak to my ex and kids every day and have visits with my kids every second weekend. We are able to get along so my kids can have both parents around.
[7]G22.
On 5 July 2022 a further request for information was made to the Applicant by the Respondent’s delegate. This related to the continuing lifetime VRO issued by the District Court of Western Australia on 3 November 2021 for the protection of the victim, details of which were included in the request. The Applicant replied to this request on 13 July 2022 in the following terms:
The VRO you are asking about is a VRO imposed by the Court after I was found guilty. This VRO is easy to follow as I have had no contact or thought about contacting the person for over 8 years.
On 21 July 2022, a delegate of the Minister decided, under s 501CA(4) of the Act, not to revoke the visa cancellation decision (the reviewable decision). The reviewable decision was delivered by hand to the Applicant on 25 July 2022.
The Applicant lodged an application for review of the reviewable decision with the Tribunal on 27 July 2022, which is within the time prescribed by s 500(6B) of the Act
The hearing and the evidence
At the time of the hearing, the Applicant was detained at Yongah Hill Detention Centre in Western Australia and appeared before the Tribunal in person on 30 September 2022.

The Applicant was self-represented. The Respondent was represented by Ms D Jones-Bolla of Sparke Helmore Lawyers, who appeared in person.
The following witnesses gave evidence at the hearing:
(a)the Applicant;
(b)the Applicant’s mother, JS; and
(c)the Applicant’s sister, BK.
The following documents were admitted into evidence:
(a)the Applicant’s application for review dated 27 July 2022 (A1);
(b)the Applicant’s statement of facts, issues and contentions (SOFIC) filed 15 September 2022 (A2);
(c)the Applicant’s list of witnesses filed 15 September 2022 (A3);
(d)the Respondent’s G documents, filed 11 August 2022 (R1);
(e)the Respondent’s statement of facts, issues and contentions (SOFIC), filed 2 September 2022 (R2); and
(f)the Respondent’s Summons Bundle, filed 2 September 2022 (R3)
(g)the Respondent’s Submissions in Reply, filed 21 September 2022 (R4).
At the conclusion of the hearing, in lieu of closing oral submissions and pursuant to s 33(2A)(g) of the Act, the Tribunal directed that parties be given leave to file written final submissions of not more than 1,200 words on or before 2:00pm AWST on Wednesday, 5 October 2022.
The following further submissions were subsequently received:
(a)Applicant’s final written submissions, filed 4 October 2022; and
(b)Respondent’s amended final submissions, filed 5 October 2022.
Applicant’s history of offending
The Applicant’s offending history in Australia began on 16 September 2012 when he was 17 years and 2 months old. After being given a move-on notice at Perth City train station in response to his disorderly behaviour, the Applicant continued to remain in the area without reasonable excuse. After complying with the requirements of the juvenile justice team, the matter was subsequently dismissed.[8]
[8]Pursuant to s 33(2) of the Young Offenders Act 1994 (WA).
The Applicant’s history of convicted offending is:[9]
(a)two (2) offences for ‘no authority to drive’;
(b)two (2) offences of ‘disorderly behaviour in public’;
(c)one (1) offence of ‘exceed 0.08g of alcohol per 100ml of blood’; and
(d)four (4) offences of ‘indecently deals with a child over 13 and under 16’.
[9]G4; R3 pp 2 – 4.
As indicated above at para [7], while serving his most recent term of imprisonment, the Applicant’s visa was mandatorily cancelled by a delegate of the Minister on character grounds, pursuant to s 501(3A) of the Act. The delegate subsequently refused to exercise the discretion to revoke the mandatory cancellation after weighing the considerations at s 501CA(4) of the Act.[10]
[10]G1 – G3.
legal framework
Section 501(3A) of the Act relevantly provides that:
The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)...; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Act relevantly provides:
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); …
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child;
(Original emphasis.)
A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) ...
(b) ...
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
…
(Original emphasis.)
Section 501(7A) of the Act provides:
(7A)For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.
Section 501CA of the Act relevantly provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
...
(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.
(emphasis added.)
Ministerial Direction 90
Section 499(1) of the Act provides that:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(1) the performance of those functions; or
(2) the exercise of those powers.
Section 499(2A) of the Act provides that, “A person or body must comply with a direction under subsection (1).”
On 8 March 2021 the Minister, being the relevant Minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90).[11] The commencement date for operation of Direction 90 was 15 April 2021. Upon its commencement, Direction 90 revoked the operation of “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79).[12]
[11]Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021).
[12]Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018).
Paragraph 5.1 sets out the objectives of Direction 90. Paragraph 5.1(3) relevantly provides:
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
(emphasis added.)
Paragraph 5.2 of Direction 90 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA. These principles are as follows:
(a) 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.
(b) 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.
(c) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(d) 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 noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(e) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
(emphasis added.)

Paragraph 6 of Direction 90 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 90 (where such considerations are relevant) in order to determine whether the cancellation of the visa should be revoked.
Guidance in relation to how the relevant considerations are to be taken into account can be found in para 7 of Direction 90 which provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of Direction 90 provides:
In making a decision under section … 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.
(emphasis added)
Paragraph 9 of Direction 90 provides:
(1) In making a decision under section … 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)    international non-refoulement obligations;
b)    extent of impediments if removed;
c)    impact on victims;
d)    links to the Australian community, including:
i)strength, nature and duration of ties to Australia;
ii)impact on Australian business interests.
(emphasis added)
CONSIDERATION
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law: Harrison and Minister for Immigration and Citizenship.[13] The character test is defined in s 501(6) of the Act (see [22] above). Section 501(6)(a) of the Act provides that a person does not pass the character test if the person has “a substantial criminal record”.
[13](2009) 106 ALD 66.
Section 501(7)(c) (see [23] above) provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more...”. Section 501(7)(d) provides that a person will have a substantial criminal record if they have been “sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more” (see [23] above). In addition, s 501(6)(e)(i) is engaged where a person has been convicted by court in Australia … of one or more sexually based offences involving a child.
As the Applicant does not pass the character test, he cannot rely on the provision in s 501CA(4)(b)(i) for the reviewable decision to be revoked. The issue, therefore, is whether the power under s 501CA(4)(b)(ii) should be exercised, on the basis that there is another reason why the reviewable decision should be revoked (see [25] above).
Is there another reason why the reviewable decision should be revoked?
Primary Considerations
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 90 provides that when decision-makers are considering the protection of the Australian community, they:
(1) ... should 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(emphasis added.)
Nature and seriousness of the conduct (para 8.1.1 of Direction 90)
Paragraph 8.1.1 of Direction 90 provides:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e) the cumulative effect of repeated offending;
(f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(emphasis added).
8.1.1(1)(a)(i) and (ii) – sexual offending
With respect to the Applicant’s history of sexual offending, it is the Respondent’s contention that it is “very serious”, particularly as follows:[14]
[14]Respondent’s SOFIC para [25].
a)The four indecently deals with a child over 13 under 16 offences were sexual crimes committed against a vulnerable member of the community (paragraphs 8.1.1(1)(a)(i) and 8.1.1(1)(b)(ii) of Direction 90).
b)The [A]pplicant was sentenced to terms of imprisonment (paragraph 8.1.1(1)(c) of Direction 90). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy.[15]
c)The frequency and cumulative nature of the [A]pplicant's offending is also relevant (paragraph 8.1.1(1)(d) and (e)). The [A]pplicant offended against the victim on four distinct occasions and the offending was not limited to those four occasions for which the applicant was ultimately convicted of. Relevantly, the sentencing judge stated '…the State adduced evidence of other incidents not represented on the indictment of identical touching in the bed at the same unit'.
d)The offending was described by the sentencing judge as brazen and was opportunistic.[16]
e)A lifetime restraining order was issued protecting the victim and restraining the applicant.
f)The offending in respect of count two involved the use of force. The sentencing judge stated:
…
Count 2 occurred at a different location. It was equally brazen offending, but occurred in a different way in that the victim was in her brother's room babysitting three children, all of whom were asleep.
One of the boys' parents came to check on the children. You then on [the victim’s] evidence walked into the room. She said words to the effect of, "You've got to get out," but instead on her evidence you guided her towards a wall in the bedroom, you touched her vagina on the outside of her clothing for some 15 to 20 seconds before she was able to push you away. You would have been much bigger than her of course and she described that your “fingers were just like grabbing, sort of thing.” And then she said that you were moving her hand around on her vagina over her clothing.
…
[15]PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
[16]The Respondent also draws attention to the Applicant’s offending in this respect as having been described by the sentencing judge as “a gross breach of trust”. (Respondent amended submissions dated 5 October 2022, para [2]).
Direction 90 requires the decision-maker to consider “the nature and seriousness of the non-citizen’s conduct to date” in the context of the protection of the Australian community from criminal or other serious conduct. A mandatory visa cancellation due to an Applicant’s substantial criminal record, therefore, involves a degree of circularity in the consideration requirements at paragraph 8.1.1.
Nevertheless, I note the following relevant summary comments of the sentencing judge in the District Court of Western Australia on 3 November 2021, in relation to the [A]pplicant’s four convictions for indecently deals with a child over 13 and under 16:
… I proceed to sentence on the basis that your criminality was not confined to the four counts on the indictment. The jury’s verdict which binds me just as much as it binds everybody else precludes me from a determination that the counts on the indictment were the only occasions that you offended against [the victim]. Of course, you are only to be sentenced for what was proved against you.
On counts 1, 3 and 4, you desisted and did not persist but your conduct as represented by those counts in the context of your actions as a whole was repeated and your actions on count 2 were more forceful. …
Here, as Mr Robinson has noted, the offending constituted a gross breach of trust. Whilst your proven behaviour was repeated, it did not escalate. I do not find any evidence of grooming behaviour and you did not coerce [the victim], save for the physicality inherent in count 2.
Of course, whilst there was generally an absence of threats, physical coercion or acts of violence, the absence those factors only shows that the offending could have been worse. It does not diminish the seriousness of what you actually did to the victim and the impact upon the victim emerges quite clearly from the victim impact statement, which I have received and which I expressly take into account.
Regrettably, you do not have the mitigation that a plea of guilty would have brought. It is not open to me to conclude that you have remorse in the sense discussed by the Court of Appeal in cases such as England or Bradbery, or that you have insight into your offending or an acceptance of responsibility.
I acknowledge that your criminal history is very limited and there is no prior sexual offending. In any event, the conduct that is on your record does not aggravate your offending and it permits me to conclude, as I say, that you were a person of good character at the time of your offending. You have also made a valuable contribution to the community in the course of your life and you have a sound work history following a difficult upbringing in the sense of moving to this country from New Zealand and the absence of a father figure.
The indictment on which the Applicant was charged on these four counts alleged that:
(a)Count 1 occurred on a date between 30 November 2013 and 1 February 2014;
(b)Count 2 occurred on a date between 23 May 2014 and 31 December 2014;
(c)Count 3 occurred on a date between 15 March 2014 and 30 October 2014; and
(d)Count 4 occurred on 2 October 2014.
Accordingly, the last date of offending under the indictment was 31 December 2014.
The sentencing judge referred to the fact that the Applicant “has not offended in a like manner since the time of the proven offending” and the sentencing date (3 November 2021). Having stated that the maximum penalty for each of the four offences for which the Applicant received a guilty verdict was a term of imprisonment of seven years, his Honour imposed a sentence of nine months’ imprisonment for each conviction, to be served concurrently.

The sentencing judge also made the applicant eligible for parole.
For the purposes of the exercise required by s 501 of the Act (as governed by Direction 90) it is not sufficient to merely point to the disparity between the maximum available sentence and the sentence imposed by a sentencing judge as a measure of the “relative” seriousness of a person’s offending. The sentencing judge observed that a sentence of immediate imprisonment is required in circumstances where the seriousness of the offending requires it, even for a young offender of prior good character such as the Applicant was found to be when he was sentenced.
The nature and seriousness of the Applicant’s offending behaviour (for which he was immediately imprisoned following a trial in the District Court of Western Australia) is obvious, regardless of any separate consideration of any applicable sentence(s). Sexual assault of a child is abhorrent, its consequences are life-altering for victims; it undermines the most basic aspects of human development and social cohesion. Further, such conduct is clearly inimical to the privilege of residing in or holding a visa of any category to enter or remain in Australia.
It also fails to meet the expectations of the Australian community relating to the conduct and character of those persons who may enjoy the benefit of such a privilege. This is demonstrated by the fact that, in response to such offending behaviour, cancellation of the Applicant’s visa is made mandatory by the text of s 501(3A) of the Act.
8.1.1 (1)(a)(iii) acts of family violence
The Respondent made submissions to the effect that the crimes for which the Applicant was sentenced in the District Court of Western Australia on 3 November 2021 should also be characterised as “family violence”, as this term is contemplated by Direction 90 at para 8.1.1 (1)(a)(iii) above.[17]
[17]R2/[31]-[34]; Transcript at (8), Amended final submissions 5 October 2022 at [4]-[7].
At the hearing on 30 September 2022, I raised some concerns about the implications of the Respondent submissions on this point with counsel for the Respondent (perhaps with less than perfect clarity), by reference to the expressio unius principle,[18] as follows:
MEMBER:I will come back to these questions I have in my mind, Ms Jones-Bolla. I don’t think now is the time for me to do it. But so that you’re aware of it and so I don’t forget, I’m ambivalent about the family violence aspect because the reliance that’s made in the submissions is to a single decision of Tavoularis SM and a concurring view expressed by Boyle DP, both of whom are members of considerably more experience than me and whose views on this matter, I think, are very interesting but are yet to be tested by an appeal court with respect to de facto relationships.
I understand the position expressed by [Senior Member] Tavoularis and the concurrence of [Deputy President] Boyle, and the logic of the proposition is difficult to conjure with; but for the expressio unius principle that it has been open to successive ministers with responsibility for the administration of the Migration Act to clarify the very point that my senior colleagues have expressed tentative views about. So I’m not sure to what extent I can be guided by those points, and I’m happy for you to address that later in your closing.
I can see the merits of the argument which are bleedingly obvious as [Senior Member] Tavoularis has explained in his judgment of relevance - sorry, his decision of relevance, and I can well understand why [Deputy President] Boyle has expressed concurrence with those views; but for the expressio unius consideration.
[18]The Latin maxim expression unius est exclusio alteris meaning "the expression of one thing is the exclusion of the other", is a principle used in statutory construction and interpretation.
Final Respondent submissions received on 5 October 2022 dealing with this matter were as follows:
Family Violence
4. The Minister submits the victim of the applicant’s offending was a member of the applicant’s family at the time of the offending and as such his actions were acts of family violence.
5. The [A]pplicant’s evidence was that [his former partner] and him began living together in 2013 until the middle of 2019; they had a sexual relationship between 2013 until August 2020; they shared the cost of the rent; they did not have any personal loans, or bank accounts together; they shared the utility expenses and child care expenses; the applicant paid for food; [his former partner] was in receipt of Family Tax Benefit and worked casually at [business venue]; and the applicant was the principle breadwinner during 2013 to 2019. For these reasons the Minister submits the applicant and Ms T were in a de-facto relationship from 2013 to approximately 2019 when the applicant moved out of the family home. The Minister understands the applicant does not dispute this.
6. Having regard to the circumstances of this matter it follows that [the former partner’s sibling] [the victim] was a member of the [A]pplicant’s family.

This is in circumstances where the victim visited the [A]pplicant and [his former partner] at their home, the [A]pplicant visited the victim at her home, the victim shared a bed with the [A]pplicant and [his former partner] when [the victim] visited them, and the [A]pplicant accepted the victim trusted him.
7. The Minister acknowledges the Tribunal’s comments that the views of [Senior Member] Tavoularis in Dore[19] and [Deputy President] Boyle’s comments in Taylor[20] have not been tested by a court and the logic of the proposition (that a sister of de-facto member is a family member) was difficult to conjure with in light of the expressio unius principle when it is open to the Minister to clarify the definition of family member within the Direction 90. In response the Minister submits:
a. the Latin maxim “expressio unius est ex[c]lusio alterius” translates to ‘an express reference to one specific indicates that other matters are excluded’. Direction 90 relevantly does not define family or family member and accordingly the Minister submits there is no express definition within Direction 90 such that the Tribunal could conclude that certain people are excluded from being a family member.[21]

There is also no definition in the Act. The closest the Act comes is at section 5G which deals with family members and relationships and makes clear that a child of a person, or of whom a person is a child, are included. At the end of section 5G the Act relevantly states: “this does not limit who is a member of a person’s family or a relative of a person.” In circumstances where family or family member are not defined in Direction 90 and the Act specifically states the definition does not limit who is a member of a person’s family the maxim has no relevant application in this matter.[22]
b. the comments of SM Tavoularis[23] and DP Boyle[24] are not binding on this Tribunal but in circumstances where the reasoning is cogent and logical are highly persuasive and for consistency in decision making should be followed.
c. while Direction 90 does not specifically define family member the Minister submits the Tribunal is required to have regard to the facts of the individual circumstances and what constitutes a family member is dependant [sic] on the circumstances of the matter. The definition under the FLA[25] is cited to assist the Tribunal in determining what constitutes a family member.
d. regardless of whether the Tribunal adopts the reasoning of [Senior Member] Tavoularis and [Deputy President] Boyle and applies the definition under the FLA the circumstances of this matter weigh heavily in favour of a finding that the victim of the applicant’s sexual offending was a member of his family.
[19]Dore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 1750 (Dore)
[20]Taylor and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2889 (Taylor)
[21]Referencing Houssein v Dept of Industrial Relations & Technology (1982) 38 ALR 577 at [581]; O'Sullivan v Farrer (1989) 168 CLR 210; Benning v Sydney City Council (1958) 100 CLR 177 , per Fullagar J at 196; Rathborne v Abel (1964) 38 ALJR 293 , per Kitto J at 301; Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 94; Minister for Resources; Ex parte Cazaly Iron Pty Ltd [2007] WASCA 175 at [91]; and Monk and Comcare (Compensation) [2018] AATA 224 at [13].
[22]Noting the High Court dicta: ‘That maxim must always be applied with care, for it is not of universal application and applies only when the intention it expresses is discoverable upon the face of the instrument’ (per Houssein v Dept of Industrial Relations & Technology (1982) 38 ALR 577 at [581]).
[23]Referring to Dore at [120] and [121].
[24]Referring to Taylor at [98].
[25]Family Law Act 1975 (Cth) (FLA).

Relevantly, the passage of decision by SM Tavoularis from Dore to which the Respondent refers in submissions in the extract above is as follows:
120. I again refer to the Direction. While it contains a definition for “family violence”, it does not contain a definition for “member of the person’s family” or the word “family”. That said, the Direction’s definition of “family violence” is, verbatim, taken from the definition of that phrase in the Family Law Act 1975 (Cth) (“FLA”). The FLA goes on to provide at s 4(1AB) that:
“For the purposes of:
...
(aa) section 4AB,
...
a person (the first person) is a member of the family of another person (the second person) if:
the first person is or has been married to, or in a de facto relationship with, the second person;
...”
[The words in bold appear in the original; the words in bold and underlined have been marked as such by me]
121. Given the verbatim reproduction of the FLA’s definition of “family violence” in the Direction, I am comfortable with applying the FLA’s definition of “member of the family” for the purposes of this application. Therefore, with specific reference to the recounted circumstances of the incident that occurred on 28 February 2017, it is immaterial whether the Applicant and the aggrieved referred to in that police document were not, contemporaneously with that incident, in a de-facto or marital relationship. The abovementioned definition contemplates a marital or de-facto spouse who, “is or has been” in such a relationship with the other person. Therefore, I find that the aggrieved spouse described in the subject police document was a member of the Applicant’s family on the date of the incident, being 28 February 2017.
For present purposes, the passage of decision by DP Boyle at para [98] in Taylor to which the Respondent refers in submissions is susceptible to misconstruction, unless read together with para [99] of the same decision. The relevant passage is:
98.I also consider Senior Member Tavoularis reasoning at [121] of Dore to be sound. Having cited relevant provisions of the Family Law Act 1975 (Cth) (FLA), Senior Member Tavoularis noted that the definition of family violence in Direction 90 is “verbatim reproduction of the FLA’s definition of ‘family violence’”. He was, accordingly, satisfied that the FLA’s definition of member of the family was appropriate to apply in the context of family violence under Direction 90. He further noted that the definition of a member of the family under the FLA includes a marital or de-facto spouse who “is or has been” in such a relationship with the other person.
99.Relevantly, the parties agree that family member for the purposes of family violence under Direction 90 includes a de-facto partner and a former de-facto partner. I agree. In the present case, the evidence of both the applicant and Ms B was that they had been in a de-facto relationship between 2003 and 2018. There is also the added factor of there being children from the relationship.
Clearly in both Dore and Taylor, my senior colleagues constituted as the Tribunal in each of the above matters were satisfied that the term “family member” appearing in Direction 90 extended as a matter of construction to an applicant’s de facto partner. In the present application, there are no allegations of violent conduct towards the Applicant’s former de facto partner.
The facts are, therefore, sufficiently distinguishable to undermine the Respondent’s submissions, to the effect that while:[26]
b.the comments of [Senior Member] Tavoularis and [Deputy President] Boyle are not binding on this Tribunal but in circumstances where the reasoning is cogent and logical are highly persuasive …
[26] Respondent’s Closing Submissions para [7].
It is not clear from submissions by the Respondent if they seek to imply that the available facts disclose that the Applicant, his former de facto partner and her sibling (the victim) conducted a polyamorous relationship during the relevant time, or in the alternative, that the term “family member” at Direction 90 should be construed to include siblings of a de facto spouse.
I note the following potentially relevant passage of cross examination of the Applicant at the hearing on 30 September 2022:[27]
[27]      Transcript p 26.
MS JONES-BOLLA:   Yes, thank you. Mr Kirk, your actions against the minor victim were repeated, weren’t they?
APPLICANT:              No, ma’am.
MS JONES-BOLLA: Your actions against her occurred over a one-year period between 2013 and 2014, didn’t they?
APPLICANT:              No, ma’am.
MS JONES-BOLLA: Your actions against her were brazen, weren’t they?
APPLICANT:              No, ma’am.
MS JONES-BOLLA: And in respect of count 2 was more forceful than the other counts, weren’t they?
APPLICANT:              I don’t know how to answer that question. As I’ve said, I didn’t commit the crime, ma’am, so - - -
MS JONES-BOLLA: Mr Kirk, for completeness I understand your response that you didn’t commit the crime, but I put to you [that] you have been convicted of it. And you didn’t have the victim’s consent to touch her in that way at any time, did you?
APPLICANT:              I understand I’ve been convicted. I said I haven’t committed so - - -
MS JONES-BOLLA: Mr Kirk, the victim was aged 13 at the time of your first offence, wasn’t she?
APPLICANT:              According to the statement of material facts, yes.
MS JONES-BOLLA: And your actions against her were a gross breach of trust, weren’t they?
APPLICANT:              Ma’am, that is what the sentencing remarks say but, as I said, I did not commit these crimes so, in my opinion, there was no breach of trust.
MS JONES-BOLLA: You accept that you were in relationship of trust; she trusted you?
APPLICANT:              I would accept that, yes, because I was dating her sister.

I’d accept that she would trust.
MS JONES-BOLLA: And she would visit your house, didn’t she?
APPLICANT:              Yes, sometimes at my house.
MS JONES-BOLLA: And you’d all lie in the bed together, didn’t you?
APPLICANT:              Yes, ma’am.
MS JONES-BOLLA: Mr Kirk, as a result of your actions the victim suffered harm, didn’t she?
APPLICANT:              Ma’am, as I’ve said already, I didn’t commit the crime.
There is nothing in the evidence before the Tribunal, including the foregoing exchange, to support an inference that the Applicant was engaged in a polyamorous relationship with his former de facto partner and that person’s sibling (the victim). As to the other possible inference (i.e.: that the victim was a member of the Applicant’s “family” via other considerations of relatedness), the Respondent submissions fail to substantively identify a basis for such a proposition.
Indeed, as noted in the foregoing exchange at para [56], the nature of the victim’s presence at the domicile of the Applicant and his former de facto partner was put to the Applicant in cross-examination (and accepted by the Applicant) in terms of the victim as having been a visitor.
For completeness, I note that the FLA at s 4(1AB)(e) provides:
For the purposes of:
...
(aa)      section 4AB,
...
a person (the first person) is a member of the family of another person (the second person) if:
(e) the first person is or has been a relative, the second person (as defined in subsection (1AC);
...
(1AC) For the purposes of subsection (1AB), a relative of a person is:
(a) a father, mother, grandfather, grandmother, step-father or step-mother of the person; or
(b) a son, daughter, grandson, grand-daughter, step-son or step-daughter of the person; or
(c) a brother, sister, half-brother, half-sister, step-brother or step-sister of the person; or
(d) an uncle or aunt of the person; or
(e)       a nephew or niece of the person; or
(f)        a cousin of the person; or
(g) if the person is or was married--in addition to paragraphs (a) to (f), a person who is or was a relative, of the kind described in any of those paragraphs, of the person's spouse; or
(h) if the person is or was in a de facto relationship with another person--in addition to paragraphs (a) to (f), a person who would be a relative of a kind described in any of those paragraphs if the persons in that de facto relationship were or had been married to each other.
If the FLA is, indeed, an appropriate interpretative aid when construing Direction 90, it would be open to the Respondent to raise the inference that, as the victim comes within the FLA definition of “family member” (as expanded by s4(1AB)(e) and (1AC)(h)) above, then by virtue of them being a “relative” of the Applicant’s former de facto partner, the Applicant’s criminal offending against the victim would arguably constitute “family violence” for the purposes of Direction 90 at para 8.1.1(1)(a)(iii). The Respondent’s submissions do not explicitly raise such an inference in those terms.
The Full Court of the Federal Court decision in Deng[28] is binding on this Tribunal.

The Full Court in that case stated as follows:
123.Paragraph 4(1) of Direction 90 contains a definition of “family violence” that refers to a “member of the person’s family”. But the Direction does not contain any definition of this expression or of the word “family”. Some assistance is provided by ss 5CB and 5G of the Migration Act, but these sections do not contain an exhaustive definition of a member of a person’s family. The expression “member of the person’s family”, as used in the definition of “family violence” in paragraph 4(1) of Direction 90, is to be construed having regard to its text, context and purpose. The context includes paragraph 8.2 of the Direction and ss 5CB and 5G of the Migration Act.
124,It may be noted some statutory schemes define “family violence” in a way that includes violence against a person who is, or has been, an intimate partner: see, eg, the Family Violence Protection Act 2008 (Vic), s 8(1), which defines a “family member” in relation to a relevant person as meaning (among other things) “a person who has, or has had, an intimate personal relationship with the relevant person”. However, Direction 90 does not contain any equivalent or similar definition. The question is therefore left to be determined on the basis indicated above, namely by reference to the text, context and purpose of the expression “member of a person’s family”. We agree with the primary judge (at [156]-[157]) that the expression should not be narrowly construed and that it could extend (depending on the circumstances) to a person who is in an intimate relationship with the person.
[28]Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115 per the Court (Farrell, Moshinsky and Burley JJ).
The Court then went on to state:[29]
With respect to the primary judge, we consider that it was necessary for the Tribunal to consider whether or not Ms S was a member of the appellant’s family for the purposes of the definition, and the failure to do so constituted a failure to carry out its statutory task.
[29]At [128].
What, then, is the correct and preferable view when determining whether or not a particular victim of a given applicant’s offending behaviour is a member of that applicant’s family for the purposes of “family violence” in Direction 90 at para 8.1.1(1)(a)(iii)?
Based on the foregoing authority, a decision maker must have regard to the text, context and purpose of the relevant term in Direction 90. In this respect, the Court in Deng specifically expressed approval for decision makers to have regard to the relevant definitions in the Act. Those appear to include the definitions at ss 5CA (Child), 5CB (De facto partner), 5F (Spouse) and 5G (Relationships and family members).[30]
[30]At [123]. Cf: King and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4391 (Member Burford) at [126]-[127].
The Court in Deng also contrasted the drafting approach adopted in Direction 90 with the drafting approaches adopted in other statutory schemes.
In the present matter, it is of significance that s 5G of the Act states as follows:
Relationships and family members
(1) For the purposes of this Act, if one person is the child of another person because of the definition of child in section 5CA, relationships traced to or through that person are to be determined on the basis that the person is the child of the other person.
(2) For the purposes of this Act, the members of a person's family and relatives of a person are taken to include the following:
(a) a de facto partner of the person;
(b) someone who is the child of the person, or of whom the person is the child, because of the definition of child in section 5CA;
(c) anyone else who would be a member of the person's family or a relative of the person if someone mentioned in paragraph (a) or (b) is taken to be a member of the person's family or a relative of the person.
This does not limit who is a member of a person's family or relative of a person.
The structure of s 5G(2) of the Act is potentially instructive here. Firstly, the section and its’ definitions are, at sub-para (1), made expressly applicable to the entire Act (including, presumably ss 499 and 501). Second, the provision, at sub-para (2) distinguishes between “the members of a person’s family” on the one hand and “relatives of a person” on the other throughout. Each phrase has its own work to do in the provision and should, therefore, be read disjunctively.[31]
[31]See Re Peat Resources of Australia Pty Ltd; Ex parte Pollock [2004] WASCA 122; 181 FLR 454; and Kazal v Thunder Studios Inc (California) [2017] FCAFC 111, at [39] per Besanko, Wigney and Bromwich JJ.
Relying on this related primary textual resource within the Act, it emerges that the definition of a person’s family is intended to be more a matter of the ordinary and natural meaning, than of particular regard to alternative technical legislative definitions across legislative schemes.
While I am mindful of the cautionary observation of the High Court in Houssein[32] referred to in submissions by the Respondent relating to the expressio unius interpretative maxim, it is instructive to examine the wider extract within which the reference relied upon by the Respondent in submissions sits, which is as follows:
To deny to par.(a) the operation which is so well established by authority would not only deny it any significant effect but would require the Court to close its eyes to a plain legislative intent. In these circumstances there is no room for the application of the maxim expressio unius. That maxim must always be applied with care, for it is not of universal application and applies only when the intention it expresses is discoverable upon the face of the instrument: Saunders v. Evans [1861] EngR 335; (1861) 8 HLC 721, at p 729 [1861] EngR 335; (11 ER 611, at p 615) . It is "a valuable servant, but a dangerous master": Colquhoun v. Brooks (1888) 21 QBD 52, at p 65 . (at p94)
[32]Houssein v Under Secretary of Industrial Relations & Technology (NSW) [1982] HCA 2 at [10]; (1982) 148 CLR 88 at 94.
In the present instance, the plain legislative intent of Direction 90 does not extend to the reading in of exhaustive definitions from the FLA as if they form part of Direction 90.

Given that Direction 90 is made under s 499 of the Act, it appears entirely logical for the meaning of the term “family” and “family member” under Direction 90 to be textually, contextually and purposively informed by the definition of these (and related) terms in that Act.
In the absence of specific reference in Direction 90 or Act more generally to alternative legislative schemes for particular definitional purposes, “family member” for the purposes of Direction 90 at para 8.1.1(1)(a)(iii) “family violence” should properly be limited to those persons who are “taken to be a member of the person's family” as per s 5G(2)(c) of the Act.
In the ordinary course of things, this would clearly comprise members of the person’s (being the Applicant) immediate family, including any child(ren) or spouse(s) (including de facto spouses, being the Applicant’s former partner). Beyond this category, the correct and preferable view (arising from a plain reading of s 5G(2)(c) of the Act) appears to be that the next closest degree of separation would capture the wider community of a person’s “relatives”.
On this assessment, it falls to be determined if the Applicant’s former de facto partner’s sibling would be “taken to be a member of the person's family”. There is insufficient evidence to satisfy me that the victim was more than a frequent visitor in the home the Applicant and his former partner at the relevant time, such that the victim would not be “taken to be” a member of the Applicant’s “family” in the relevant sense.
I do, however, accept that at the relevant time the victim would have been taken to be a “relative” of the Applicant, as described at s 5G(2) of the Act. While this near degree of separation underscores the gross breach of trust that characterised the Applicant’s offending as described by the trial judge at the point of sentencing, I find that this is not within the degree of separation contemplated by the text, context and purpose of the term “family member” as utilised at Direction 90, para 8.1.1(1)(a)(iii) for the purposes of the consideration “family violence” under that provision.
Accordingly, I find that the Applicant’s criminal offending against the victim referred to above does not give rise to specific consideration in the present application under Direction 90 at para 8.1.1(1)(a)(iii) “family violence”.
The characterisation of the Applicant’s offending as “family violence” under 8(2) is considered in more detail at paras [117]–[121] below.
The Applicant’s history of sexual offending, while serious in the relevant sense contemplated by paragraph 8.1.1(a) of Direction 90, based on the observations of the sentencing judge referenced above, has not been frequent or characterised by a discernible trend of increasing seriousness within the contemplation of paragraph 8.1.1(1)(d) of Direction 90. Nevertheless, I do find that the cumulative effect of the Applicant’s history of offending conduct described above is a significant relevant consideration in this case, given the requirement at paragraph 8.1.1(1)(e) of Direction 90.
8.1.1(1)(b)(ii) and (iii)
Driving-related offending
As indicated above, apart from the Applicant’s sexual offending, the most serious offending conduct for which the Applicant has been sentenced was for driving with a blood alcohol level in excess of 0.08g of alcohol per 100ml of blood. It was put to the Applicant during cross-examination, and accepted by the Applicant, that when stopped by police while driving a motor vehicle on 18 October 2020 he returned a reading of 0.128g of alcohol per 100ml of blood.
This was more than twice the legal limit of 0.05g of alcohol per 100ml of blood.[33]
With respect to the applicant’s history of offending behaviour, it is the Respondent contends as follows:[34]
…
g)The [A]pplicant's offending has continued in Australia from 2018 to 2021 which includes the offences: no authority to drive in 2018 and 2019, for which he received suspended fines; disorderly behaviour in public in 2018 and twice in 2019 for which he was fined; and exceed 0.08g alcohol per 100ml of blood in 2020 for which he was fined and received an eight month licence disqualification.
[33]Transcript p 38.
[34]Respondent’s SOFIC para [25].
The Check Results Report for the Applicant discloses that the Applicant was fined $650[35] and his driver’s licence was disqualified for 8 months in the Perth Magistrate’s Court for this offending behaviour.
[35]G4/33

According to the “Blood Alcohol Concentration (BAC) Table publicly available on the Drug and Alcohol Clinical Advisory Service (DACAS) website,[36] the likely presentation of a person with a demonstrated BAC in excess of 0.1g per 100ml of blood is as follows:
[36]< (accessed 10 October 2022).
Blood alcohol concentration table

BAC

Likely presentation

0.10–0.20

·     slurred speech, ataxia, labile mood

·     impaired judgment/loss of self-control/

poor coordination

·     potential for aggression

The dangers posed to the general community by the driver of a motor vehicle who demonstrates any or all of the foregoing clinical “likely presentations”, while driving are significant and disturbing in equal measure. The Tribunal and the courts have, on numerous other occasions, observed that driving-related offending is amongst the most pernicious and potentially devastating criminal offending behaviour inflicted on the general community.[37] The fact that such “likely presentations” are entirely foreseeable and that the legal prohibitions are a matter of common knowledge makes the offending conduct of an intoxicated driver all the more egregious.
[37]See, e.g. Dunasemat and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 1967 [155]–[158], (Senior Member Puplick); JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762 [19]–[26]; [43]–[45] (Colvin J).
In addition to the above, the Applicant was also convicted of two counts of driving with a license under fines-suspension,[38] for which he was fined $450 in total.
[38](12 October 2018 and 25 January 2019),
Disorderly offending
In addition to the sexual offences for which the Applicant was convicted and sentenced on 3 November 2021, and the foregoing driving-related offences, the Applicant’s record of offending also includes the following:
(a)Failure to obey an order given by a sworn officer (17 September 2012); required to comply with the Juvenile Justice Team directions and subsequently dismissed;
(b)Three disorderly behaviour-in-public charges (1x 26 November 2018 and 2x 24 February 2019), total fines $2,500;
The fact that the Applicant first came to the attention of the criminal justice system in September 2012 is potentially significant. This was little more than two years after taking up permanent residence in Australia after arriving from New Zealand as part of a family unit as a dependent child. In this respect, it is worth recalling the observation of the comments of the sentencing judge on 3 November 2021 regarding the Applicant’s “difficult upbringing in the sense of moving to this country from New Zealand and the absence of a father figure”.[39]
[39]G5/39.
In the space of a few months between October 2018 and January 2019, the Applicant was fined twice for driving without a valid driver’s license due to unpaid fines. This aspect of the Applicant’s offending conduct was the subject of cross-examination during the hearing, as follows:
MS JONES-BOLLA:   So what that statement of material facts sets out is that on 19 September 2018 you were driving in Mirrabooka. You were stopped, it was ascertained that you were not authorised to drive from 28 November 2017 for the non-payment of fines. At the time of being stopped you were aware that you were the subject of a fine suspension. That’s an accurate description of what occurred on 19 September 2018, isn’t it, Mr Kirk?
APPLICANT:              Yes.
MS JONES-BOLLA:   And if I can take you to the summons bundle, page 13, this is in respect of the second no authority to drive offence. This was on 19 January 2019. You were driving in Bayswater, you were stopped. It was ascertained that you were not authorised from 10 November 2018 again for the non-payment of fines. At the time of being stopped you were aware that you were the subject of a fine suspension. That’s an accurate description of what occurred in January 2019, isn’t it?
APPLICANT:              The only thing they have wrong here, ma’am, is I wasn’t driving a Holden Astra, and that was definitely not the registration number.
MS JONES-BOLLA: You would accept that you were driving without any authority to drive?
APPLICANT:              But I accept I was driving, yes. Yes, correct.
MS JONES-BOLLA: And on both occasions you were aware that you were the subject of a fine suspension and that you had no authority to drive, weren’t you?
APPLICANT:              Yes, ma’am, yes.
From the foregoing, it is apparent that the Applicant’s disregard for the driving and fines enforcement regulations was not inadvertent and can be characterised as both knowing and wilful at the relevant time.
It is worth noting that, as at the date of the hearing on 30 September 2022, the Applicant’s memory of those events of 24 February 2019 giving rise to multiple disorderly behaviour in public offences on that date still appeared to lack clarity. As evinced by the following passage of the transcript, the Applicant’s physical condition at the date of the charges (due, presumably, to excessive alcohol consumption on that occasion) appears to have affected his subsequent recollection of events.
This impaired recollection seems to have led the Applicant to question the correctness of his charge sheet relating to these offences:[40]
[40]G18/74
MS JONES-BOLLA: And if I take you to your statement, this is at page 74 of the G documents. This is your statement here. It’s not dated but that’s your signature on page 75 there, Mr Kirk?
APPLICANT:            Yes, ma’am, it is.
MS JONES-BOLLA: Yes. And if you go back to page 74 it’s sort of middle of the page it starts with, “It shows three disorderly behaviour.” Do you see that?
APPLICANT:              Yes.
MS JONES-BOLLA: And what you say there - you say:
It shows three disorderly behaviour in public, but one of them is doubled; same date, same charge, same fine amount. So I believe there has been a mistake here.
APPLICANT:              I believe so because I don’t think I got two on the same day.
MS JONES-BOLLA: Mr Kirk, that’s not correct what you say there. It is in fact two offences which occurred on the same day. If I can take you to the summons bundle at page 2 you’ll see in the “Offence Date” column - you’ll see at the last two lines at page 2 a disorderly behaviour in public; 12 October 2018?
APPLICANT:              Yes, ma’am.
MS JONES-BOLLA: And the one below that; disorderly behaviour in public, 12 October 2018 is the offence date?
APPLICANT:              Yes, ma’am.
MS JONES-BOLLA: You see that there? And then if I can take you to page 11 of that summons bundle, that sets out the statement of material facts in respect of those two offences. What it states is that at about 1.28 pm you and a co-accused were outside the Brass Monkey. An argument has ensued between a group of males and the accused and a co-accused have begun fighting. Punches and kicks were exchanged for several minutes before police arrived and you fled on foot.
You were then later located at a different venue fighting again. And if we move down to item 2 on that summary of offences, you’ll see there at about 2 am you were located outside Prestige Kebabs. The police have attended for a separate matter and upon arrival they have observed the two accused - so you and a co-accused - sorry, the two accused physically fighting. There were several bystanders surrounding the two and watching the fight. So you and the other man were violently punching and kicking each other to the extent that the police were forced to use a taser on both of you to separate you. That’s an accurate description of what’s occurred on those two occasions, isn’t it, Mr Kirk?
APPLICANT:              If you say so.
MS JONES-BOLLA: You were fined $1000 for each of the offences, weren’t you?
APPLICANT:              Yes, that was the sum, yes.
MS JONES-BOLLA: So if you turn to page 2 again of that bundle, and the last two lines, you move across to the column headed, “Result,” you’ll see, “Fine 1000 global”?
APPLICANT:              Yes, ma’am, that was the fine.
MS JONES-BOLLA: And again under the second offence as well?
APPLICANT:              Yes, ma’am.
8.1.1(1)(c), (d) and (e) – other offending
The Applicant has acknowledged that he has driven motor vehicles as an unlicensed and at times reckless driver,[41] this offending behaviour demonstrated an occasional and unacceptable disregard for not only his own well-being or the well-being of other road users and members of the public who were strangers to him, but also those who are known and potentially dear to him.
[41]Transcript pp 16-21.
The Applicant’s disorderly conduct has been, at times, so alcohol affected as to impair his perception of the relevant circumstances at the time and his subsequent awareness and insight into either his own conduct or the lawful consequences of that conduct. The potential devastation that such conduct can have in the lives of the disorderly individual and members of the wider community is cause for considerable reflection and anxiety. The police resources wasted in addressing such pointless, thoughtless and oafish behaviour are unavailable to other citizens in urgent need of emergency first-responders.
As contended by the Respondent, such escalating, callous and wilful disregard for the well-being of those around him over such a lengthy period of years should be trivialised.[42]
[42]Kohli and Minister for Immigration and Border Protection (Migration) [2017] AATA 1326 at [20] per Senior Member Poljak.
The Applicant’s history of non-sexual offending has not been frequent or characterised by a discernible trend of increasing seriousness within the contemplation of paragraph 8.1.1(1)(d) of Direction 90.
Nevertheless, I do find that the cumulative effect of the Applicant’s history of offending conduct described above is a significant relevant consideration in this case, in the sense that it is cumulatively serious offending conduct within the contemplation of paragraph 8.1.1(1)(e) of Direction 90.
Further, I note that when the discretion to revoke a decision to cancel a visa is being considered, paragraph 5.2(2) of Direction 90 also identifies as a relevant consideration the principle that: “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.” As required at para 6, this is one of the principles informing the application of considerations required by Direction 90.
The Tribunal finds that, on balance, the reasonable assessment required by paragraph 8.1.1 of Direction 90, being a consideration of the nature and seriousness of the Applicant’s criminal offending or other conduct to date including those driving, behavioural and sexually-based offences referred to above, leads to the conclusion that it is serious conduct from which the Australian community is entitled to be protected in the relevant sense.
Risk to the Australian community should the Applicant re-offend (para 8.1.2 of Direction 90)
Paragraph 8.1.2 of Direction 90 relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the non-citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(emphasis added).
The Tribunal in CZCV and Minister for Home Affairs[43](CZCV) summarised the task on review as follows at [56]:
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
In BSJ16 v Minister for Immigration and Border Protection[44] Moshinsky J stated, at [68]:
... there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.
[43][2019] AATA 91.
[44][2016] FCA 1181.
While the Tribunal and the Court in the above cases (and in the cases referred to therein) were considering visa cancellation in the context of predecessors to Direction 90, given the similarity in the wording of the preceding Directions, the same considerations and principles apply to the present case. I adopt the approach indicated in the above cases.
Protection of the Australian community (8.1.2(1))
With respect to the Australian community’s tolerance for any risk of future harm that would be caused if he were to repeat his offending behaviour, the Minister submitted that:[45]
…the nature of the harm that would be caused if the applicant were to reoffend is serious and is likely to result in mental and physical harm to vulnerable members of the Australian community. It would also have broader financial and other consequences to the justice and health systems. Studies show that the short and long-term outcomes associated with child sexual abuse cover a diverse range of outcomes.
[45]Respondent’s SOFIC para [28].
In summary, the Respondent Minister’s submissions in relation to the risk posed to the Australian community by the Applicant’s offending are that “the risk of further offending by the applicant is significant and unacceptable.”[46] The Respondent further submitted that:[47]
a. There is presently no current independent expert report providing an assessment of the risk of re-offending.
b. The [A]pplicant’s conduct was brazen and opportunistic as described by the sentencing judge.
c. Whilst the [A]pplicant claims he has given up alcohol, the correlation between his sexual offending and alcohol use is not clear and in addition there is no evidence of any treatment to address his alcohol use. Further, his offending occurred on four distinct occasions such that alcohol use does not provide any justification for the serious offending. In addition, the [A]pplicant was convicted of exceed 0.08g alcohol per 100ml of blood in 2020 which indicates that any abstinence from alcohol was not a result of any insight into his sexual offending which occurred between 2013 and 2014 - almost seven years earlier.
d. The [A]pplicant has not engaged in any rehabilitation and has no plans to engage in rehabilitation in respect of the sexual offending if released into the community.
e. It does not appear that the [A]pplicant’s supporters in the community would be of any assistance in circumstances where they did not prevent the applicant from offending previously. Further, the statements from [witnesses][48] do not evidence any understanding of the sexual offences for which the [A]pplicant was convicted.
f. The sexual offending occurred around 2013 or 2014 when the [A]pplicant was 18 or 19 years of age and the applicant continued to offend namely he was convicted of no authority to drive in 2018 and 2019, for which he received suspended fines; disorderly behaviour in public in 2018 and twice in 2019 for which he was fined; and exceed 0.08g alcohol per 100ml of blood in 2020 for which he was fined and received an eight month licence disqualification.[49]
g. The [A]pplicant’s remorse is limited and does not extend beyond his personal consequences. Relevantly, the applicant did not plead guilty and the sentencing judge stated ‘Regrettably, you do not have the mitigation that a plea of guilty would have brought. It is not open to me to conclude that you have remorse …or that you have insight into your offending or an acceptance of responsibility’[50]
[46]R2/9.
[47]R2/[29].
[48]G10 – G17.
[49]G4.
[50]G6/39.
Broadly speaking, the Tribunal is required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct.

This firstly requires a consideration of the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct.[51]
[51]Para 8.1.2(2)(a) of Direction No. 90.
Nature of the harm (para 8.1.2(2)(a) of Direction No. 90)
As may be inferred from the discussion above, the nature of the harm that would be caused to the community if the Applicant were to reoffend or engage in the same serious conduct that he has engaged in in the past would be significant, not only to individuals in the community, but also to the community as a whole. As noted above, the submissions received on behalf of the Minister on this point were brief.[52]
[52]R2/[28].
Although not the subject of detailed submissions in this matter, there is no contention between the parties that the nature of the cumulative harm to individuals or the Australian community should the non-citizen engage in further criminal or serious conduct of the type for which the Applicant has been charged and convicted since 2018 is unacceptable. With respect to the Applicant’s convictions for indecent dealing with a child aged above 13 and below 16, the following remarks of the sentencing judge on 3 November 2021 bear repeating in this context:[53]
It is well settled that the primary sentencing considerations for sexual offending against children are punishment of the offender, specific and general deterrence and the protection of vulnerable children. Matters personal to the offender are of less mitigatory weight than might otherwise be the case but they are not otherwise irrelevant.
(Emphasis added).
[53]G5/38.
The evidence before the Tribunal satisfies me that the Applicant’s convictions for indecent dealing with a child aged above 13 and below 16 represent harm of a type that is amongst the gravest and most abhorrent offending known to the Australian community.
For completeness, I note that under the terms of his sentencing in the District Court of Western Australia, the Applicant remains restrained by a Lifetime Violence Restraining Order for the protection of the victim.[54]
[54]R3/23.
In terms of the Applicant’s history of offending arising from his past excessive consumption of alcohol, I am not satisfied, on the basis of the evidence, including having observed the Applicant in person at the hearing, that the Applicant has insight into his particular susceptibility to this potential catalyst for poor decision making when in social settings or when in charge of a motor vehicle. Further, there is no suggestion that the applicant has any plan to address this aspect of his past offending conduct, beyond prolonged or periodic abstinence. Given the nature of the harm that may result from such behaviour while intoxicated, this is a significant consideration in making the assessment required at para 8.1.2 of Direction 90.
Likelihood of the non-citizen engaging in further criminal or other serious conduct (para 8.1.2(2)(b) of Direction 90)

Relevantly, the Minister’s written submissions in relation to the extent of the strength, nature and duration of the Applicant’s ties to Australia were as follows:
54. The Minister accepts that non-revocation decision may have an adverse effect on members of the [A]pplicant’s immediate family in Australia, namely, his mother, step-father, siblings, two minor children and a niece and nephew. However, there is nothing to suggest that any of these people would face insurmountable hardship in the event of the [A]pplicant’s departure.
55. In respect of the minor children the impact a non-revocation decision will have on them will be brought to account in the Tribunal’s assessment of the third primary consideration and there is no need to “double count” that impact.
56. The length of time he has spent in Australia is a factor the Tribunal must bring to account (paragraph 9.4.1.(2)(a) of Direction 90). The [A]pplicant arrived in Australia in 2010 and has lived here for 12 years. The [A]pplicant has also undertaken secondary and tertiary education in Australia, completing year 12 and a Certificate II and III in General Education at TAFE. He has also been employed since 2013 and states that he is a leader and key player at his local gridiron club. However, his offending began in or around 2013 – shortly after his arrival in Australia and while he was on a temporary visa such that any contribution the applicant may have made to the community through his studies or employment or community activity was substantially mitigated by the harm caused by his offending.
57. Whilst it is open for the Tribunal to place weight on this consideration in favour of the applicant, the Minister submits that this consideration does not outweigh the relevant Primary considerations which weigh very heavily against revocation.
The Applicant submitted a number of statements that were written on his behalf by members of his family and his personal network.[84] It was not apparent to the Tribunal the extent to which these statements were written specifically for the purposes of this review and what level of knowledge of the Applicant’s offending that each author of these statements had at the time the statements were written by them. This was discussed with the Applicant at the hearing as follows:[85]
[84]G10 – G17.
[85]Transcript/12
MEMBER: The other thing that I wanted to check with you - you have provided these written statements from people, including your mother and I think your sister, which are in the G documents from - whether or not you have provided them, you have sourced them originally - G10 through to G17, which are ascribed to: RM; DC; DO; your mother; GC; your sister; LP; and KB. The letters variously refer to a magistrate. Some of them are undated. Can you just help me understand what these letters relate to? Do they relate to this particular application, to your response to the Minister, or to previous court proceedings?
APPLICANT: These were reference letters I used for my parole application when I was at Karnet. When I sent the –
MEMBER: Let’s take it one at a time. Let’s go to page 63, to the letter from RM, dated 19 December 2021. This was written by RM for what purpose?
APPLICANT: Just a support letter, Member.
MEMBER: Support letter in the context of your application for parole?
APPLICANT: Yes, Member, and the ability to support me outside in the community, yes.
MEMBER: But it wasn’t written in connection with these proceedings?
APPLICANT: No, Member.
MEMBER: Okay, thank you. When RM provided his mobile telephone number, that was on the basis that he could be contacted for the purposes of your parole proceedings?
APPLICANT: Yes, Member.
MEMBER: He hasn’t given consent for us to call him today. DC at page 64?
APPLICANT: Same again, Member. That was just a support letter for parole.
MEMBER: No consent for us to talk to him today. DO?
APPLICANT: Same again, Member.
MEMBER: Your mother’s letter on page 67?
APPLICANT: Member, I believe this is a mix of both support for parole and support letter against deportation.
MEMBER: GC on page 69? This is your stepfather, isn’t it?
APPLICANT: Same again, Member.
MEMBER: Your sister? This letter was written
APPLICANT: A mix of both, Member.
MEMBER: So we have two letters from [your sister]. LP?
APPLICANT: That was a support letter as LP has a trainee refrigeration mechanic job when I do come back into the community.
MEMBER: That was again for parole, yes?
APPLICANT: Yes, Member.
MEMBER: KB?
APPLICANT: Just again a support letter for parole.
MEMBER: Does KB know the nature of the offences for which you were convicted?
APPLICANT: Yes, Member.
MEMBER: How does he know that?
APPLICANT: Because I told him, Member.
MEMBER: LP?
APPLICANT: No.
MEMBER: Your sister - does she know about the nature of your offences for which you were convicted?
APPLICANT: Yes, Member.
MEMBER: Your stepfather?
APPLICANT: Yes, Member.
MEMBER: Your mother?
APPLICANT: Yes.
MEMBER: DO?
APPLICANT: I don’t believe so, Member, unless my mum said something to him.
MEMBER: DC?
APPLICANT: No, Member.
MEMBER: RM?
APPLICANT: Yes, Member.
Of the foregoing potential witnesses, only the Applicant’s mother and sister were made available to give evidence in person at the hearing. Accordingly, as artefacts of uncertain origin, while I note these statements, I afford them little weight in the context of this application except to the extent that they accord with relevant evidence provided to the Tribunal at the hearing by the Applicant’s mother and sister.
The Applicant summarised his links to the community in general terms in his “Request for revocation of a mandatory Visa cancellation under S501 (3A)” as follows:[86]
I have no family in New Zealand my mum, brother, sister, stepdad and kids are all here in Australia.
I am a different person to who I was when I offended, that person the person I am today is a proud father loved friend and family member. That plays American football on Saturday and spends time with my kids 3-4 times a week. I have job opportunities here and I am working on buying a home here for me and my kids.
I have nothing in New Zealand since I’ve been here since 2010.
[86]G8/46.
At the hearing, the Applicant’s mother provided evidence in person that substantively corroborated a written statement provided by the Applicant in the attachments to his “Personal Circumstances Form” (dated 13 December 2021), when he sought revocation of the cancellation decision which is the subject of this review. Relevantly this written statement was as follows:[87]
1Both myself and all of [the Applicant’s] siblings reside in Perth WA all of his family is here also his two children.
2[Applicant] is also a support person for myself as I have had 1 major stroke and 2 mini strokes. [The Applicant] provides assistance to myself, with driving me to appointments, shopping, doctors, and with my computers, phone, as my motor skills are slower and I forget things and can’t get my words out. There are days where I have migraines and suffer severe headaches and [Applicant] provides help with that also.
3[The Applicant] has looked after his two children for the last two years. 4 to 5 days a week as their mother frequently dropped them off even though she was not working.
4Both [the Applicant] and myself have a strong bond with A and B and it would be devastating to the children if he was taken from them.
5[The Applicant] has no family support in New Zealand, we are all he has here we can offer a great support network and a chance for [Applicant] to obtain a job through family and friends.
[87]G13/67.
Also at the hearing the Applicant’s sister gave evidence in person including stating that:[88]
We’re trying to support [the Applicant] in all which ways possible. You know, we came here as a family, if [the Applicant] goes home, I sell my property and we’ll all leave, so, you know.
[88]Transcript p 56.
Whatever else may be taken from such evidence, it is clear that the Applicant is viewed as an integral part of his family of origin. It is apparent that he provides more than nominal support to his mother, and also that his family of origin is committed to assisting him with the responsibilities associated with raising his natural children. On the basis of the evidence before the Tribunal there is no reason to believe that there will be any impediments to the Applicant continuing to meet these responsibilities into the future on the basis of the amicable, informal tripartite arrangement referred to above.
There is also the prospect that, should the Applicant’s visa be cancelled, a significant proportion of his family of origin may also consider returning to New Zealand. The potential negative consequences of such an outcome for the Applicant’s children in Australia are also worthy of some consideration in this context.
Based on the foregoing considerations, I am satisfied that the effect of the visa cancellation decision would be significant to the Applicant’s children and his family of origin in Australia.
I find that this consideration weighs in favour of revoking the Cancellation Decision.
Given the evidence discussed above, I find that moderate weight should be given to this consideration.
Impact on Australian business interests (para 9.4.2)
Paragraph 9.4.2 provides:
(1) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Neither party made written submissions to the Tribunal on this consideration.
Having considered the evidence before it and the parties’ submissions, the Tribunal finds that this consideration is neutral with respect to the requirements of Direction 90.
I have considered the other consideration “Links to the Australian Community” required at Paragraph 9.4 of Direction 90. Cumulatively, I find that this other consideration weighs in favour of revoking the Cancellation Decision. I also find that substantial weight should be given to this other consideration.
THE WEIGHING EXERCISE
Direction 90 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account. It provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[89] and the Full Court of the Federal Court judgment in Minister for Home Affairs v HSKJ.[90]
[89](2018) 74 AAR 545.
[90](2018) 266 FCR 591.
Colvin J’s judgment in Suleiman was considered by Wigney J in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[91] At para [21] Wigney J cited para [23] of Colvin J’s judgment, which was as follows:
The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non‑refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
(emphasis added.)
[91][2021] FCA 775.
Wigney J then observed at [22]:
It is the last sentence of this paragraph of Suleiman which has given rise to the issue in this case. That issue will be discussed in more detail later. It suffices at this point to note that, with the greatest respect to Colvin J, this analysis of paragraph 8 of the relevant direction tends to overcomplicate or over intellectualise the issue. More significantly, it may lead decision-makers into error. Paragraph 8 of Direction no. 79 is expressed in simple terms. Relevantly, decision-makers must take into account the primary and other considerations that are relevant to the individual case and, when it comes to weighing up the relevant considerations, have regard to three relevant principles: first, both primary and other considerations may weigh in favour of, or against, whether or not to revoke a cancellation of a visa; second, primary conditions should generally be given greater weight than other considerations; and third, one or more primary considerations may outweigh other considerations. It is difficult to see why any further elaboration of those simple principles or propositions is necessary or warranted.
(Emphasis omitted.)
The Tribunal in CZCV at [164] summarised the legal position as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so...
(emphasis added).
I adopt the approach directed by the above cases.
Primary Consideration 1
Looking at the first primary consideration, the protection of the Australian community, the relevant consideration is whether the risk is an unacceptable one, taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the behaviour and the likelihood of that occurring. For the reasons set out in paras [38]–[116] above, the Tribunal assesses the likelihood of the Applicant engaging in further criminal or other serious conduct as low. Considering the significant harm that would be caused to the community if the Applicant were to reoffend; and, while the likelihood of him reoffending is low, this consideration weighs against of the revocation of the cancellation of the visa. Moderate weight should be given to this primary consideration.
Primary Consideration 2
Given that the Tribunal has found that the Applicant has not engaged in family violence, for the reasons set out at paras [117]–[121] above, the second primary consideration, family violence, has neutral weight against revocation of the cancellation of the Applicant’s visa. Neutral weight should be given to this primary consideration.
Primary Consideration 3
For the reasons set out in paras [122]–[162] above, the third primary consideration, the best interests of minor children, weighs in favour of the revocation of the cancellation of the Applicant’s visa. Substantial weight should be given to this primary consideration.
Primary Consideration 4
For the reasons set out at [163]–[178] above, the fourth primary consideration, the expectations of the Australian community, as it must, weighs against the revocation of the cancellation of the Applicant’s visa. Moderate weight should be given to this primary consideration.
Other Considerations
International non-refoulement
For the reasons set out above in paras [180]–[183] as the Applicant’s return to New Zealand does not give rise to a non-refoulement obligation, the Tribunal has found that this other consideration has a neutral weight in the context of the decision to revoke the cancellation decision.
Extent of impediments
With respect to the consideration of the extent of impediments, the Tribunal has found at paras [184]-[191] above the Applicant’s return to New Zealand does not give rise to any impediments in the relevant sense. The impact of this other consideration is therefore neutral with respect to the requirements of Direction 90.
Impact on victims
The consideration of the impact on victims as directed by para 9.3 of Direction 90, for the reasons set out above at para [192]-[194] the Tribunal finds that this other consideration does not arise and is therefore neutral with respect to the requirements of Direction 90.
Links to the Australian community
The consideration of the strength, nature and duration of the ties that the Applicant’s links to the Australian community, particularly with respect to the care needs of his Australian citizen children and his family of origin in Australia, weighs substantially in favour of the revocation of the cancellation of the visa. For the reasons set out above at paras [195]–[211], moderate weight should be given to this other consideration.
Conclusion
As noted by Deputy President Boyle in James and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[92] whether a consideration does or does not outweigh any other particular consideration (or considerations) is not the relevant test.

In weighing the considerations, primary and other, the exercise is not one of comparing one against another, but rather of giving weight to each of the considerations and weighing them as a whole, those for and those against revocation and determining which have the greater weight in total, those for or those against revocation.
[92][2022] AATA 2390 [112].
Having weighed the relevant considerations in favour of the revocation of the cancellation of the Applicant’s visa and the relevant considerations against the revocation of the cancellation of the Applicant’s visa, the Tribunal finds that the considerations in favour of revocation outweigh those against revocation. Accordingly, the Tribunal finds that there is another reason why the Reviewable Decision should be revoked.
decision
The Reviewable Decision, being the decision of the Delegate dated 21 July 2022, not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa, pursuant to 501CA(4) of the Act is set aside and substituted with the decision that the cancellation of the applicant’s visa is revoked under

s 501CA(4)(b)(ii) of the Act.

I certify that the preceding 228 two hundred and twenty-eight paragraphs are a true copy of the reasons for the decision herein of Member Dr C Huntly

............[Sgd]...........................................................
Associate
Dated: 8 November 2022

Date of hearing: 30 September 2022

Applicant: Self-represented

Counsel for the Respondent: Ms D Jones-Bolla

Solicitors for the Respondent: Sparke Helmore Lawyers

Date of hearing:	30 September 2022
Applicant:	Self-represented
Counsel for the Respondent:	Ms D Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore Lawyers