Littlejohn and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2024] ARTA 38

Littlejohn and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] ARTA 38 (5 December 2024)
Applicant/s:  Ricardo Littlejohn
Respondent:  Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Tribunal Number:                2024/7030

Tribunal:Senior Member Kennedy
Place:Perth
Date:5 December 2024

Decision:The Tribunal affirms the decision under review.

………………..[SGD]………
Senior Member Kennedy
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction No 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 45 year old citizen of New Zealand – extent of impediments if returned to New Zealand – Non-Revocation Decision is affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 5AB, 189, 198, 499, 499(1), 499(2A), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4)(b)(i), 501CA(4)(b)(ii), 501E, 5001(c)
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
CASES
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Gillespie v The State of Western Australia [2016] WASCA 216
Duncan v The State of Western Australia [2018] WASCA 154
Bropho v Hall [2015] WASC 50
Wong v MIMIA [2002] FCAFC 440
MIEA v Baker (1997) 73 FCR 187
Brown v MIAC (2010) 183 FCR 113
Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Taulahi v Minister for Immigration and Border Protection 246 FCR 146
Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003
SECONDARY MATERIALS
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023)
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024) – paras 5.2, 5.2(2), 5.2(3) 5.2(4), 7, 7.2, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(a)(iii), 8.1.1(1)(g), 8.2, 8.3, 8.4, 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3
Statement of Reasons
BACKGROUND

The Applicant, Mr Littlejohn, is a 45-year-old male born in New Zealand (DOB: 11 January 1979). The Applicant first arrived in Australia on 18 April 1985, aged six.[1]
[1] T1, G22, page 140.
The Applicant’s adult criminal history consists of 30 convictions between 1998 and 2023 – a period of 25 years.[2] The most serious of these include common assault (9 October 2007), assault occasioning actual bodily harm (23 October 2008). On 26 May 2023, the Applicant was convicted of ‘unlawfully assault and thereby did bodily harm with circumstances of aggravation’. The Applicant was sentenced to 2 years imprisonment from 8 June 2022.[3] These were offences of family violence.
[2] A list of the Applicant’s criminal convictions is attached at Annexure A.
[3] T1, G4, pages 36 – 37.
On 6 June 2023, the Department issued the Applicant with a notice of cancellation under s 501(3A) of the Act on the basis that he 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 a state (ss 501(6)(a) and 501(7(c)).[4]
[4] T1, G7.
On 14 June 2023, the Applicant made representations and requested revocation of the cancellation of his visa.[5]
[5] T1, G8 and G10.
On 12 September 2024, a delegate of the Minister decided, under subsection 501CA(4) of the Act, not to revoke the visa cancellation decision.[6] The Applicant was notified by letter delivered by hand on 12 September 2024.[7]
[6] T1, G3.
[7] T1, G25, page 167.
On 13 September 2024, the Applicant applied to the Administrative Appeals Tribunal for review of the subsection 501CA(4) decision.[8]
[8] T1, G2.
From 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT.
This decision and statement of reasons is made by the Tribunal.
ISSUES
The issues before the Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked.[9]
[9] See s 501CA(4) of the Migration Act.
LEGISLATIVE FRAMEWORK
Under subsection 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if, among other things:
(a)the person does not pass the character test because of a substantial criminal record; 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 Territory.
A person has a substantial criminal record in the circumstances set out in sub section 501(7) of the Act. These circumstances include that the person has been sentenced to a term of imprisonment of 12 months or more (paragraph 501(7)(c) of the Act). This applies no differently for a sentence imposed for two or more offences (s 5AB of the Act).
Under subsection 501(3A) of the Migration Act, the Minister must cancel the visa of certain incarcerated persons if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[10] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked.
[10] Migration Act s 501CA(3).
Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under subparagraph 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under subparagraph 501CA(4)(b)(ii) if there is ‘another reason’ why the original decision should be revoked.[11]
[11] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Direction No 110
Under subsection 499(1) of the Act, the Minister may give written directions to a person or body having functions or power under the Act, and a person or body must comply with any direction given by the Minster (subsection 499(2A)).
On 7 June 2024, the Minister made Direction No 110 under s 499 of the Migration Act Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’), which commenced operation on 21 June 2024. This Direction replaced the previous Direction No 99.[12] It is expressed to apply to the Administrative Review Tribunal in making a decision under s 501 or s 501CA of the Act, and the Tribunal must comply with the Direction.
[12] Direction No 110 paras 2-3.
An objective of Direction No 110 is to guide decision-makers in exercising powers under sections 501 or 501CA of the Migration Act.[13] In exercising the power under subsection 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No 110 where relevant to the decision.[14]
[13] Direction No 110 para 5.1(4).
[14] Direction No 110 para 6.
Clause 5.2 of the Direction provides principles to provide a framework to approach decision making. These are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[15]
[15] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024) cl 5.2 (‘the Direction’).
The Direction also sets out matters to be considered in refusing or not revoking the cancellation of a visa. It requires certain primary and other considerations to be considered in making a decision, and states that in taking these into account that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration … (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.[16]
[16] Ibid cl 7.
The Direction does not limit the matters the Tribunal can consider in deciding if there is another reason the cancellation of a visa should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in subsection 501(6) of the Migration Act. Paragraph 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by subsection 501(7). Relevant to the Applicant’s case, a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[17] Failure to pass the character test arises as a matter of law.[18]
[17] Migration Act s 501(7)(c).
[18] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].
On 26 May 2023, the Applicant was convicted of ‘unlawfully assault and thereby did bodily harm with circumstances of aggravation’. The Applicant was sentenced to 2 years imprisonment from 8 June 2022.
As Mr Littlejohn has been sentenced to a term of imprisonment of 12 months or more, he does not pass the character test by operation of paragraph 501(7)(c) of the Migration Act.
Accordingly, I am not satisfied that Mr Littlejohn passes the character test.[19]
[19] See Migration Act s 501CA(4)(b)(i).
I note Mr Littlejohn was serving a sentence of imprisonment against a law of Western Australia on a full-time basis on 6 June 2023 when his visa was cancelled.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As I am not satisfied that Mr Littlejohn passes the character test, I must then determine whether, having regard to the primary and other considerations contained within Direction No 110, there is another reason why the cancellation decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the cancellation decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
In his written request for revocation,[20] Mr Littlejohn stated that he has two children born in Australia, and his immediate family consisting of his mother, brothers, and sister and de facto partner reside in Australia. Mr Littlejohn stated that he has maintained gainful employment in Australia since the age of 15. Mr Littlejohn said that he arrived in Australia as a 6-year-old and has lived in Australia for 38 years and considers himself Australian. He says he has no connection to New Zealand. Mr Littlejohn emphasises that his son has autism and his [removal from Australia] would have a negative impact on him and affect his life dramatically.
[20] T1, G8, page 56.
In his oral submissions, Mr Littlejohn expressed his apologies to the victims of his offending and the Australian community. He explained that the reason why he wanted the decision to cancel his visa revoked was mostly because his family, his life and his support network is in Australia. He pointed to the impact of a decision to remove him from Australia on his son, who has autism, and his own mother who is his son’s primary caregiver.
Mr Littlejohn also provided additional information about his circumstances and provided detailed written submissions in advance of the hearing elaborating on these matters.[21] I will turn to Mr Littlejohn’s written submissions and his evidence and arguments at the hearing in the course of my consideration by reference to the Direction.
[21] A1.
Protection of the Australian Community
The Direction requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and 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.[22]
[22] Direction No 110 para 8.1(1).
The Tribunal is directed to 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.[23]
[23] Ibid.
Decision-makers should consider the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[24]
[24] Ibid cl 8.1(2).
Nature and seriousness of the conduct
I must consider the nature and seriousness of Mr Littlejohn’s criminal offending or other conduct to date.[25] In doing so, paragraph 8.1.1(1) of Direction No 110 provides that I must have regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. The Direction also provides that certain other crimes or conduct are considered to be serious. I note that while the Direction expressly provides categories of conduct to be considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.[26]
[25] Direction No 110 para 8.1(1).
[26] Direction No 110 para 8.1.1(1)(a).
The Direction provides that violent crimes and violent crimes against women or children and acts of family violence are viewed very seriously. In the case of violent crimes against women or children that is so regardless of the sentence imposed. In the case of acts of family violence, that is so regardless of whether there is a conviction for an offence or a sentence imposed.
Between March 1998 and August of 1999, Mr Littlejohn was convicted of a range of offences that were dealt with summarily in the Narrogin or Wagin Courts of Petty Sessions and resulted in fines. The offences were however offences of violence.
On 10 March 1998 Mr Littlejohn was convicted of disorderly fighting, which in his evidence Mr Littlejohn recalled was a fight he had in a public place with his girlfriend’s cousin. He said he had escalated a disagreement to a physical confrontation.
On 15 April 1998, Mr Littlejohn was convicted of a number of offences that had been committed on the same day including, assaulting a police officer, resisting arrest, property damage, disorderly conduct and using obscene language. Mr Littlejohn said that the circumstances were that he was ejected from licensed premises when he was inebriated. There was an altercation and the police had been called. In the course of the police attempting to arrest him he had hip-and-shouldered a police officer. Mr Littlejohn also confirmed that in that course of events he damaged a plate glass window.
On 25 August 1999, Mr Littlejohn was convicted of threatening behaviour and remaining on premises after being asked to leave. Mr Littlejohn confirmed that his friend’s partner had asked him to leave the premises. He had been trying to get in contact with his friend and she may have felt intimidated or threatened. Mr Littlejohn said he was intoxicated at the time. Mr Littlejohn could not recall the circumstances of his threatening behaviour conviction or who the identified victim was.
Mr Littlejohn was taken to a Western Australia Police incident report dated 23 September 2007 in which the person who was the victim of Mr Littlejohn’s offending for which he was convicted on 9 October 2007 and 23 October 2008 reported being struck in the abdomen during an argument at which Mr Littlejohn and another person were present. No charges or convictions arose out of this incident, and the incident report states that it is not known who allegedly struck her in the abdomen. To avoid doubt, I have disregarded this incident.

On 9 October 2007, Mr Littlejohn was convicted of criminal damage and common assault. A Statement of Material Facts is available to the Tribunal,[27] but there are no remarks on sentence available. I extract as follows in relation to the assault:
[27] R3, TB3, page 40.
The Accused and Complainant [Ms C] have been in a relationship for the last 8 months, the Complainant is pregnant with the Accused's 5 month old baby.
At about 2.00pm on Friday 7th September 2007 the Accused finished work and returned to their home address… He parked his car on the drive and walked around to the back of the property where an argument ensued between him and the Victim regarding him being late home from work. Also present at the time was the Victim's 5 year old Son [JW].
Due to comments made by the Accused the Victim slapped him across the face.
The Accused became angry and pushed the Victim with force through the laundry room door which was ajar. As a result she fell backwards landing on her back on the floor.
The Accused continued to verbally abuse the Victim as she lay on the floor, she was assisted to her feet by her son. She then attempted to leave the property by the front door but was unable to do so as it was damaged.
The Victim proceeded to walk towards the back door, as she walked passed [sic] the Accused he grabbed hold of her bag and threw it into the back garden.
The Victim shouted to her son to go out to the car on the drive. She proceeded to grab her bag and join him.
As a result of the incident the Victim received a small cut to her bottom lip and a sore neck. She is unsure how the cut occurred but states it was not there prior to the Accused arriving home.
The Accused was arrested at the address at 2.30pm and subsequently interviewed on video….
…He stated he was remorseful for what he had done and regretted assaulting her.
In relation to the criminal damage:[28]
At about 2.15pm on Friday 7th September 2007 the Victim got into her car …at her home address…following a domestic dispute with the Accused inside the house. The Victim's 5 year old Son was present in the front passenger seat of the vehicle.
The Victim started the engine in order reverse out of the drive as she was [petrified] of what the Accused was going to do to her.
As she did so the Accused came out of the house and proceeded to jump on the bonnet of the moving vehicle. He began to punch the windscreen with his fists causing it to smash. The Accused got off the vehicle as it left the driveway…
…The Accused admitted to smashing the windscreen of the vehicle by punching it with his fists.
He stated he did it to stop the Victim leaving the premises.
[28] R3, TB3, page 41.
Mr Littlejohn agreed the statement of material facts, confirmed the Victim was pregnant with his son at the time, and that the victim’s five-year-old son was present and seated in the front seat when he punched the windscreen. Mr Littlejohn said he had not been drinking at the time of this offence as he had just returned home from work.
For these offences the Court imposed a community based order and supervision for 12 months.
On 23 October 2008, Mr Littlejohn was convicted of assault occasioning actual bodily harm against the same victim in the following circumstances, recounted in a statement of material facts (there are no sentencing remarks):[29]
The accused and victim in this matter were in a relationship and living together at the time of the offence. The have a four month old boy together.
…
At about 11.30am on Friday 25th April 2008, the victim and accused were home together at ….
The accused noticed the victim "Texting" someone on her mobile phone and asked who she was Texting. The victim replied that she was texting a male friend by the name of "David".
The accused became aggressive and grabbed the victim around the neck and headbutted her to the left eye region. The accused then threw the victim onto the bed in the main bedroom and kicked the victim to the head. The accused mother who was present at the time of the offence, then took the victim away from the premises to prevent the victim being further assaulted.
The victim attended … Health Campus two days later to receive medical attention. As a result of the assault the victim received severe bruising and swelling to her left eye. She suffered severe pain to the area and had headaches for several days after the incident.
…
[29] R3, TB3, page 45.
Mr Littlejohn ultimately accepted the accuracy of the statement of material facts, although explained he couldn’t recall the assault beyond the headbutt.
Mr Littlejohn was sentenced to 12 months imprisonment, suspended and fined for breach of the community based order imposed on him on 9 October 2007.
On 8 March 2010 Mr Littlejohn was convicted of wilfully and unlawfully destroying property, and for breaching his suspended imprisonment. The details of this incident can be found in a statement of material facts for an incident that took place on 12 July 2009.[30] The circumstances describe Mr Littlejohn standing on a wall next to a taxi rank, yelling abuse at taxi drivers, stepping onto the roof of a taxi and kicking in the taxi sign light.
[30] R3, TB3, page 73.
Mr Littlejohn said that he was inebriated at the time (the offence occurred at the casino). As to why he had damaged the taxi, Mr Littlejohn said that he recalled the taxi had swerved at him.
On 28 June 2017, 23 August 2017 and 23 April 2019 Mr Littlejohn was convicted for breaching a family violence restraining order. Although not a physically violent crime per se, it is convenient to recount to circumstances of that offending in the context of the Direction indicating that acts of family violence are viewed very seriously, and the definition of family violence in the Direction includes behaviour that causes the family member to be fearful:
(a)The first conviction pertained to Mr Littlejohn sharing a photograph of his daughter on a social networking sight in direct contravention of an express term of a violence restraining order prohibiting him from doing so.[31] The second conviction pertains to Mr Littlejohn breaching the order in the same way,[32] and the third conviction pertains to Mr Littlejohn breaching the restraining order in a similar way for the third time.[33]
(b)For these offences, Mr Littlejohn was dealt with through the imposition of fines. Mr Littlejohn said that he didn’t know he was breaching the restraining orders for posting pictures of his daughter online and said that in relation to the two repeated instances of breaching the restraining orders in the same way, the postings were accidental.
[31] R3, TB3, page 57.
[32] R3, TB3, page 59.
[33] R3, TB3, page 61,
On 25 May 2023, the District Court dealt with the offending that resulted in Mr Littlejohn’s term of imprisonment.[34]
[34] R3, TB8.
Before recounting the evidence available to me regarding the circumstances leading to this conviction, it is necessary to explain that the documentary evidence demonstrates that Mr Littlejohn was charged with three counts, including one count relating to a different victim. Two of those counts were discontinued shortly before Mr Littlejohn plead guilty to the offence that resulted in his imprisonment. One count related to an aggravated assault against the victim, Ms H, which is the offence Mr Littlejohn was convicted for. Another count related to an alleged aggravated assault against the victims 10-year-old son. That count was discontinued. The statements of material facts in relation to each of these charges pertain to the same ‘event’ occurring on 3 November 2020. The third count related to an alleged offence of unlawful act with intent to harm endangering life against Ms H on a different date. That count was discontinued.
Mr Littlejohn was expressly and clearly warned that if he were to be asked any question where the answer may reveal communications he had with a legal practitioner, he was under no obligation to answer the question as his communication with his lawyer was privileged. However when asked if he wished to tell me anything about the circumstances in which the two counts were discontinued and he was convicted of the third count, Mr Littlejohn told me that his lawyer had advised him to take a plea deal in relation to the other two charges being discontinued.
Mr Littlejohn told me that he was intending to plead not guilty to all counts and take the matter to trial. When taken through the statement of material facts relating to the alleged facts going to the two counts that were discontinued,[35] Mr Littlejohn denied the key particulars. In this regard, I also mention for the record that Mr Littlejohn was expressly and clearly warned that he did not have to answer any questions about any allegations in respect of which he had not been convicted on the grounds that the answer may tend to incriminate him.
[35] R3, TB3, page 67 and 70.
In respect of the charge that resulted in the conviction, the sentencing remarks do not contain full detail of the offending.[36] The sentencing judge remarks that he takes into account the facts as accepted, but what those facts are or where a documentary record of those accepted facts may be found is not further elaborated upon. Given the statements of material fact relating to the events the subject of the conviction traverse also particulars that relate to the alleged offences that were discontinued, the statement of material facts is unlikely to be the accepted facts to which his Honour had referred.
[36] R3, TB8, pages 158 – 164.
It is therefore necessary for me to recount information available to me from all sources about the circumstances of this offending, which includes the circumstances leading to counts which were discontinued. As mentioned above, I note that Mr Littlejohn has expressly denied the accuracy of the facts alleged that relate to the charges that were discontinued.
I will first recount the circumstances of the offences from the statement of material facts[37] before turning to the sentencing remarks:
The victim in this matter is a 36 year old female of medium build and the accused is a 41 year old male of muscular build.
The victim and suspect met on 17 October 2019 via the internet and became engaged sometime in November 2019. This resulted in the victim relocating to Perth from the eastern states in January 2020 with her 10 year old son. The victim and her son moved directly into with the suspect at [home address].
Since moving in together the victim has alleged a number of family violence incidents involving herself and the suspect, however none of these were reported to Police. These incidents included strangulation to the point of unconsciousness.
During the evening of Tuesday 3 November 2020, the victim and suspect were both at the [tavern]. As the evening progressed the suspects attitude towards the victim changed. At closing time, the accused left in the Tavern in his motor vehicle making the victim walk home.
When the victim arrived home, she discovered the house and contents had been extensively damaged by the suspect prior to her arrival. The suspect turned his violent towards the victim.
The suspect dragged victim hair around the back yard on her knees, removing skin and causing moderate bleeding to her legs. The victim has also been dragged through the house leaving a bloodied trail through the house.
The victim’s son came out of his room and saw the suspect hitting the victim to face and body with his hands. The son has attempted to call 000 but the suspect has grabbed his phone and smashed it with his foot.
The accused continued to cause damage to the various items in the house prior to leaving the address in his motor vehicle.
[37] R3, TB3, page 64.
The statement of material facts pertaining to the discontinued count pertaining to the same event identifies Ms H’s 10-year-old son as the victim. The statement of material facts contains allegations that the child came out of his room and saw Mr Littlejohn hitting his mother, that the child had attempted to call 000 but Mr Littlejohn grabbed his phone and smashed it with his foot, and that Mr Littlejohn grabbed the child by the neck with both hands before letting go, and that Mr Littlejohn then continued to cause damage to various items in the house. Mr Littlejohn expressly denied each and every material particular in this regard. Mr Littlejohn’s evidence is the child was in his room and did not come out.
The statement of material facts pertaining to the other discontinued count alleged an offence against Ms H on a different date, at some stage between 24 and 30 August 2020.[38] It was alleged that Mr Littlejohn and Ms H had been arguing in the kitchen, Ms H had yelled at her son to call the police, Mr Littlejohn had moved towards the child causing Ms H to step between them, and Mr Littlejohn had then pushed Ms H and she had broken Mr Littlejohn’s necklace when falling. Ms H then remembered waking up in her son’s bed the next morning with a sore chest and lumps on her head, bruises on her knees and soreness under her ears. Ms H told police that she had subsequently learned from Mr Littlejohn and her son that she had stopped breathing after being strangled by Mr Littlejohn and being kicked to the head twice, and Mr Littlejohn performing CPR on her while being witnessed by her son. Mr Littlejohn expressly denied each and every material particular in relation to this statement of material facts.
[38] R3, TB3, page 70 – 71.
I extract from the Court’s sentencing remarks:[39]
[39] R3, TB3, 159 – 164.
TROY DCJ: As is the cases with any sentencing exercise in these courts, the sentence that I must impose has to be commensurate, that is, proportionate with the seriousness of the offence, the offence being count 3 on this indictment.
The seriousness is determined by taking into account the maximum penalty, which is seven years' imprisonment, the circumstances in which the offence was committed, and I take into account the facts as accepted, and I note the photographs of the carnage that you caused to this house as well as the injuries that you inflicted upon your unfortunate victim.
It's not necessary for me to make any findings as to whether the blood as attributable to her standing on some broken glass which either added to or amounted to the reason for the blood on the ground. Clearly, blood was coming from both her knees, as is vividly encapsulated in the photographs.
I need to take into account the vulnerability of any victim of the offence which is fundamentally important here, and any aggravating and mitigating factors.
I have had regard to the standards of sentencing that is usually imposed for an offence of this type but each case must be decided upon a consideration of its own facts and circumstances. I've paid regard to your personal circumstances as they have been explained to me.
The offending that gives rise to the count of aggravated assault doing bodily harm largely but not entirely consisted of dragging your victim through various parts of the property. The bodily harm consists of the injuries that were noted in the brief at page 80 and photographed, in particular, at pages 107 to 110.
The offences are aggravated of course because you were in a family relationship with the victim and her son was present.
I find that to your knowledge the victim was particularly isolated and vulnerable. That emerges, for example, from the statement of Shevron Wright at page 78 of the brief where when that person spoke to the victim the victim said words to the effect that if she was to get a VRO they're fucked and she was worried because she had no family or anywhere to go.
At the time the victim was 36, female and slim. And one can see what her size was in the photographs. You were 41 male and of a muscular build. She'd relocated eastern states to form a relationship with you in Perth she did so along with her 10-year-old son.
The relevance of the fact that this was serious domestic violence emerges from the judgment of the Court of Appeal Gillespie v The State of Western Australia [2016] WASCA 216 at paragraph 48, and also Duncan v The State of Western Australia [2018] WASCA 154 at paragraph 40; both cases cited in a decision of Mitchell Jin a single judge appeal of Bropho v Hall [2015] WASC 50 at paragraph 16.
And what the court said was:
The fact that the aggravated assault occurred in a domestic setting –
- which of course is the position here –
- is a significant aggravating factor of the offence. An offence of this nature generally involves an abuse of the trust which one partner places in another, often where the victim is in a vulnerable position by reason of greater physical strength of the offender.
-That's clearly the case here:
The vulnerability of the victim is generally increased by the difficulty which she (it is usually a she) may have in extricating herself from the situation.
That is particularly the case here, as I say, given the fact that the victim had moved from one side of Australia to the other:
As McLure P had noted in previous cases, the readiness of many victims to return to, or remain in, a relationship with the perpetrator is a hallmark of domestic violence. Recognising that common feature, it remains important for a court sentencing an offender for this kind of offence to take into account the need to protect persons in that vulnerable position -
- so that amounts to Ms Harris, but also anyone else who might form a relationship with you.
…
The other circumstance of aggravation of your offence that a child was present should not be overlooked in evaluating the seriousness of your offence. No son should ever have to witness what you did to his mother. What happened that night would have been a degrading and humiliating experience for the victim . It was, as I said to Ms Chong, in truth a cowardly attack.
Your prior criminal record as an adult does not aggravate your offending . But it means that you do not have the mitigation of good character . And it underscores the need to give weight to the sentencing objectives of punishment , protection of the public and personal deterrence. The latter, in my view, being particularly appropriate in this case .
In relation to your guilty plea you are entitled to credit for that guilty plea. But it was a later guilty plea, entered as it was on the morning of the trial , following an indication on the precious Friday . There is no suggestion that it was ever the case that on your behalf an offer to plead in the way that ultimately occurred was made by the defence and rebuffed by the prosecution.
…
…There is no demonstrable remorse. And the plea of guilty is not in itself evidence of remorse. Your prospects for rehabilitation at this stage must be viewed at guarded. That's not to say that there is no possibility of rehabilitation. But there is nothing particularly that has occurred at this stage that gives me any confidence that you will be able to rehabilitate and desist from controlling, violent behaviour to female partners.
... The impact it's had on Ms Harris is obvious from the victim impact statement, even exercise in the caution that I do in making sure that I segregate the effect of your offending on her to what you did on this particular night given rise to count 3.
As I've said, the important sentencing considerations are appropriate punishment and general and personal deterrence. I must not impose a sentence of imprisonment unless I decide that the seriousness of the offence is such that only imprisonment can be justified.
In determining whether or not to exercise the power to suspend a term of imprisonments, I must look again at all matters relevant to the circumstances of the offence and the personal circumstances of the offender. I take into account the reference from your employer, who has support you today and Monday, your work ethic, which is obvious, and what Ms Chong has told me about your background.
The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation. I take into account also, of course, the fact that you have spent 352 days in custody.
…
Having reflected on the matter, having listened to everything that's been said on your behalf by Ms Chong and listened to the State's responsive submissions, I conclude that it would be inappropriate for those reasons to impose a pre-sentence order. I take the view that the only appropriate response to your criminality is a sentence of immediate imprisonment.

In its statement of facts and contentions, the Respondent notes that Mr Littlejohn had been charged with the further offences against another alleged victim in relation to the events of that evening.[40] Specifically, in a statement of material facts, an investigating Senior Constable had documented allegations that Mr Littlejohn had assaulted the victim’s 10 year old son by grabbing him by the neck with both hands before letting go. The allegation that Mr Littlejohn had taken the child’s mobile phone and smashed it with his foot when the child had attempted to call Police forms part of the statement of material facts in respect of the aggravated assault against the child’s mother. The Respondent notes that the charges were discontinued, and does not rely on Mr Littlejohn’s conduct alleged against the child.
[40] R1.
The Direction requires me to take into account Mr Littlejohn’s criminal offending and other conduct to date. As explained in Wong v MIMIA [2002] FCAFC 440 at [33], the concepts of criminal and other conduct are not mutually exclusive. Past criminal conduct does not refer only to conduct the subject of criminal conviction, but satisfaction that criminal conduct has occurred will not be attained on slight material.[41] In this regard, in determining whether conduct has been criminal, the weight attached to evidence such as police intelligence reports will be a matter for the Tribunal.[42]
[41] MIEA v Baker (1997) 73 FCR 187.
[42] Brown v MIAC (2010) 183 FCR 113.
I proceed with caution in relation to the allegations and particulars that have not resulted in a conviction, which Mr Littlejohn expressly denies, and which Mr Littlejohn has furthermore indicated he intended to plead not guilty to and take to trial but for the plea bargain arrangement he described. In this regard I requested assistance from the Respondent in relation to how I was to correctly approach the information before me.
The Respondent submits that it is ultimately a question of weight that I am to apportion to the [alleged] conduct that resulted in the discontinued charges. The Respondent points out that under the Direction,[43] I am to give weight to acts of family violence, regardless of whether there is a conviction or a sentence imposed and conduct where there is information or evidence from independent and authoritative sources indicating that the non-citizen, is or has been, involved in the perpetration of family violence…and the non-citizen afforded procedural fairness. The Respondent explains that the Minister does not rely on the conduct that did not result in convictions, but submits it is open to me to consider the conduct and give it weight, commensurate with the evidence that the charges were discontinued and the applicant had denied the offending.
[43] Paragraphs 8.1.1(1)(iii) of the Direction
I am mindful that in Brown v MIAC (2010) 183 FCR 113, in the context of considering whether or not an appellant had failed the character test (which is not the exercise I am undertaking in this matter) the Full Court was considering the approach of the Administrative Appeals Tribunal in considering Police intelligence reports and housing department records. The Administrative Appeals Tribunal had concluded in relation to that evidence that the reports did not constitute direct evidence and the quality varied, yet the substantial number of reports from a wide variety of sources all detailing similar conduct increased the probability that the picture created was true. The Full Court noted that the Administrative Appeals Tribunal had stopped short of finding that the appellant was actually guilty of the criminal conduct described in those records and found no error in the Administrative Appeals Tribunal’s reasoning.
In the earlier case of MIEA v Baker (1997) 73 FCR 187 the Court had observed that in the absence of a prosecution or conviction, satisfaction that criminal conduct had occurred will not be attained on slight material.
While these authorities all arise from an assessment of character for the purpose of deciding whether or not a person passes the character test (and I am not undertaking that exercise), the principles discussed are equally applicable in my view to considering the nature and seriousness of a person’s criminal or other conduct or reaching findings as to whether acts of family violence occurred regardless of whether a conviction has been imposed.
Returning to Mr Littlejohn’s matter and the evidence before me in relation to the two charges that were discontinued, and weighing the allegations as reported in the statement of material facts, Mr Littlejohn’s denial that the particular conduct relevant to those two charges occurred and the absence of any other corroborating evidence to support the allegations, I consider the material is too slight to sustain a finding that the conduct occurred as alleged. I make no finding that the criminal conduct alleged in the discontinued charges occurred. The question of weight therefore does not arise, as after considering all the evidence before me on the alleged conduct going to the discontinued charges, I am not satisfied the conduct occurred as alleged.
The exception I make in relation to the allegation set out for the charge where the alleged victim was the 10-year old child is that I do not accept Mr Littlejohn’s evidence that the child did not leave his room. This is because the sentencing judge expressly mentions that the child witnesses the aggravated assault on his mother. I find that the child witnessed the aggravated assault that Mr Littlejohn perpetrated on the child’s mother.
I note also that Mr Littlejohn has been convicted of other offences, not pertaining to violence or family violence. In this regard, Mr Littlejohn has convictions for driving offences, including a conviction on 10 January 2007 for dangerous driving occasioning actual bodily harm in which he struck a pedestrian who was seriously injured. Mr Littlejohn gave evidence that he accepted the statement of material facts in respect of that matter.[44]
[44] R3, TB3, page 38.
Mr Littlejohn also has convictions for driving with blood alcohol in excess of 0.08% (24 January 2007 and 4 March 2009),[45] driving without a driver’s license while suspended (13 November 2007, 4 March 2009 and 31 March 2011).[46] In this way Mr Littlejohn drove while his license was suspended as a consequence of being convicted for dangerous driving occasioning actual bodily harm.
[45] R3, TB3.
[46] R3, TB3.
Returning to Mr Littlejohn’s violent offending, violent offending against women and acts of family violence are viewed very seriously in accordance with the Direction. I find Mr Littlejohn’s violent offending against women, at times in the presence of children, to be very serious. In relation to the offending that resulted in Mr Littlejohn’s imprisonment, I take particular note of the circumstances that the sentencing judge identified as fundamentally important, namely that the victim was particularly isolated and vulnerable, having relocated to Perth from the eastern states to form a relationship with Mr Littlejohn together with her 10 year old son.
In relation to the impact of the offending on any victims of Mr Littlejohn’s offending, and focussing on his violent offending, the information available to me is that which is available in the statements of material facts and the sentencing remarks, which I am satisfied that Mr Littlejohn has had an opportunity to address at the hearing. I take into account in the sentencing remarks of the offence that resulted in Mr Littlejohn’s imprisonment, his Honour observed that what had happened on that night was a degrading and humiliating experience for the victim, and in relation to the victim’s son, observed that no son should ever have to witness what Mr Littlejohn had done to his mother.
The Applicant has been convicted of family violence against his partner (paragraph 8.1.1(1)(a)(iii) of Direction 110). The Tribunal has previously highlighted the seriousness of domestic violence in Ahori and Minister for Immigration and Border Protection [2017] AATA 601 at [53]:
Domestic violence is a very serious matter. In no way can violence in a domestic situation by one partner against another be trivialised or downplayed. The implications of such violence on the children, broader family and friends of the parties involved can be serious and long lasting.
I am to take into account the sentence imposed by the courts for Mr Littlejohn’s crimes, with the (relevant) exception of violent crimes, crimes against women and acts of family violence. In this regard, while I note Mr Littlejohn has been convicted of other violent crime, and I also view his driving offences as significant ones, he has not had any custodial sentence imposed in respect of them. I take that into account.
I am to take into account the impact of the offending on any victims of offending and their family. Focussing on Mr Littlejohn’s violent offending, the information available to me is that which is available in the statements of material facts and the sentencing remarks, which I am satisfied that Mr Littlejohn has had an opportunity to address at the hearing. I take into account in the sentencing remarks of the offence that resulted in Mr Littlejohn’s imprisonment, his Honour observed that what had happened on that night was a degrading and humiliating experience for the victim, and in relation to the victim’s son, observed that no son should ever have to witness what Mr Littlejohn had done to his mother. I otherwise take note that the victims of assaults for which Mr Littlejohn has been convicted suffered physical injury, and I note references in the statements of material facts to the victims being terrified of Mr Littlejohn in the course of his offending.
As to the frequency of Mr Littlejohn’s offending, and again focussing on offences of violence, I identify that there has been a general trend of increasing seriousness and the Applicant has been a relatively frequent violent offender between 1998 and 2023 – a period of 25 years. I do note that, putting to one side breaches of family violence restraining orders, there was a gap in Mr Littlejohn’s violent offending convictions between 2008 and 2023. However, although all of the assaults with which Mr Littlejohn was convicted in circumstances of family violence were serious, the offence for which he was imprisoned had increased substantially in its seriousness.
I am to take into account the cumulative effect of repeated offending. The Respondent submits that Mr Littlejohn’s criminal history discloses a significant burden on the criminal justice system and thereby the community, and I accept the force in that submission. I am to take into account the cumulative effect of repeated offending in considering the nature and seriousness of Mr Littlejohn’s conduct, and in that regard I consider Mr Littlejohn’s repeated offending adds to the seriousness of his conduct.
As to whether the Applicant has provided false or misleading information, I note that the Applicant had marked ‘no’ when asked if he has any criminal convictions on two incoming passenger cards dated 14 February 2012 and 18 September 2012.[47] As of 2012, the Applicant in fact had 26 convictions including a conviction which resulted in a period of suspended imprisonment for 12 months (paragraph 8.1.1(1)(g) of Direction 110). Mr Littlejohn conceded he has provided false information on the incoming passenger cards. I take into account that Mr Littlejohn has provided false information to the Department, specifically by not disclosing his criminal offending.
[47] T1, G14.
In my view, having regard to the information known to me about Mr Littlejohn’s offending and in particular his violent offending, and following an analysis of the matters set out in the Direction at clause 8.1.1., I view the nature and seriousness of Mr Littlejohn’s offending as abhorrent and very serious indeed. Furthermore, having regard to the range of conduct identified in the Direction as being viewed very seriously, the profound impact the violent offending would have had on the victims, and the frequency and increasing seriousness of the offending in particular, I place heavy weight on this conclusion and consider it weighs very heavily against revoking the decision to cancel Mr Littlejohn’s visa.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of Direction No 110 states, in part:[48]
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen 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). …
[48] See also Direction No 110 para 8.1(2)(b).
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[49] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[50]
[49] Direction No 110 para 8.1.2(2)(a).
[50] Direction No 110 para 8.1.2(2)(b).
There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[51]
[51] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, at [41] per Kenny J.
Nature of the harm
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.[52]
[52] Direction No 110 para 8.1.2(2)(a).
The nature of the harm that would be caused to the Australian community if the Applicant were to reoffend is very serious indeed. As mentioned above, the victim of Mr Littlejohn’s most recent offending suffered serious injury after experiencing what the sentencing judge described as a degrading and humiliating experience in front of her 10 year old son. I note also that the victim of Mr Littlejohn’s previous assaults perpetrated in circumstances of family violence also suffered injury. In this regard, Mr Littlejohn has been convicted on multiple occasions of assaults and aggravated assaults against women, with the victim of his last offending considered by the sentencing judge to be particularly vulnerable. The details of those particular assaults describe serious physical and psychological injury. Mr Littlejohn’s offending on two occasions was witnessed by children similarly in positions of acute vulnerability to him.
Any future offending of a similar nature would have the potential to cause serious physical injury, or worse, and psychological injury to any victim. Indeed, as remarked upon by Judge Troy when considering the need to protect vulnerable persons such as the victim in the offence the Judge was then considering, there is a need to protect anyone else who might form a relationship with Mr Littlejohn.
I consider that harm of this nature is so serious that any risk the conduct leading to that harm may be repeated is unacceptable.
Likelihood of engaging in further or other serious conduct
I am to consider the likelihood of Mr Littlejohn engaging in further criminal conduct, taking into account information and evidence on the risk of him reoffending, and evidence of rehabilitation achieved by the time of my decision.
I am mindful that the context in which I approach the evidence of the risk of Mr Littlejohn reoffending is that there is evidence of repeated violent offending and offending against different vulnerable women and offending of increasing seriousness.
Observing the remarks of the sentencing judge,[53] mindful that those remarks were made on 26 May 2023, his Honour observed that there is no demonstrable remorse and considered the prospects for rehabilitation to be viewed, at that time, as guarded while recognising that was not to say there was no prospect of rehabilitation. His Honour concluded that at that time there was nothing particularly that had occurred at that stage that gave him any confidence that he would be able to rehabilitate and desist from controlling, violent behaviour towards female partners.
[53] R3, TB8, pages 158 – 164.
Mr Littlejohn’s case is that he is of low risk of reoffending. In his written submissions,[54] Mr Littlejohn points to having a fiancé who supports his rehabilitation and describes his sombre introspection and personal reform to reach a point of recognition of the full gravity of his actions and the harm inflicted on his family. Mr Littlejohn identifies Vipassana Dharma meditation and maintained sobriety as of assistance. Mr Littlejohn describes his father's passing while he was incarcerated as a pivotal moment in his life, which helped him reflect on his past and the importance of family.
[54] A2.
Mr Littlejohn’s identification of the benefits of meditation, introspection and the impact of his father’s passing are matters innate to Mr Littlejohn that are not amenable to assessment by me, and have not been tested. However, Mr Littlejohn submits he has been recognised as a model prisoner and I note Mr Littlejohn was held in minimum security, and there is no information to contradict his contentions that he has engaged in good behaviour while incarcerated. Remarks made in his Individual Management Plan[55] are to the effect that he is polite and courteous to staff and other prisoners. I accept that Mr Littlejohn’s imprisonment (and I note that his imprisonment has been the only time a full-time custodial sentence has been served) has been conducive to Mr Littlejohn reaching a level of awareness of the seriousness of his behaviour and the gravity of the impact it has had on others that his repeated offending suggests he did not previously have.
[55] R3, TB9, pages 204 – 207.
Mr Littlejohn has also provided documentary evidence demonstrating that he completed the Alcohol and Other Drugs Drug Awareness Treatment Readiness Group Program (6 November 2023), the Reset Drug and Alcohol Brief Intervention Program (24 May 2024) the Drug and Alcohol Abuse 101 Program (15 August 2024), the Domestic Violence Awareness Program (19 August 2024), the Anger Management Techniques Program (14 August 2024), the Community Transitions Domestic and Family Violence Treatment Readiness Program (16 November 2023).[56] I place some favourable weight on the evidence Mr Littlejohn has provided demonstrating that he has made attempts at education with a view to support rehabilitation and a reduction of risk of reoffending. I will turn to consider the documentary evidence arising from the Parole in-Reach program later in these reasons.
[56] A1.

The Respondent points to the letter from the domestic and family violence program[57] facilitation reports that the program was a 3-session group based program ‘intended to increase motivation to change, alter negative perceptions, and begin to acknowledge violent and/or controlling behaviours’. The facilitator reports that they ‘cannot attest to his changed behaviour due to the short nature of the intervention and that he has not been in a similar relational environment pre or post intervention (i.e., currently in custody).
[57] A1.
The Respondent further contends that while Mr Littlejohn has undertaken drug and alcohol courses, he does not attribute his offending to drugs or alcohol. In this regard, I note that Mr Littlejohn has committed some violent offending, for example the offending that resulted in his imprisonment, after he had been drinking, but had also committed violent offending without being affected by alcohol, for example the assault resulting in the convictions on 9 October 2007. It would appear that alcohol does not present a contributing cause of Mr Littlejohn’s offending in every case, but I do not wholly disregard Mr Littlejohn’s attempts to engage with a substance abuse program to reduce his risk of reoffending. I do however accept that the engagement with such programs is limited to a 3-session program in November 2023 and an online program in August 2024 which takes approximately 7 hours.
I place little weight on Mr Littlejohn’s reliance on the support of his fiancé as a protective factor against recidivism. There is no signed statement from Mr Littlejohn’s fiancé (only two unsigned statements purporting to be from her)[58] and she did not attend the hearing on either day to give evidence in support of Mr Littlejohn or to adopt the statements said to be from her. Mr Littlejohn’s family had limited knowledge of her and had not had contact with her for some time. With some gentle pressure from me, Mr Littlejohn agreed that I may attempt to make telephone contact with his fiancé on the second day of the hearing, but that attempt was not successful. Furthermore, as the Respondent contends, to the extent Mr Littlejohn relies on his family as a protective factor, they were not a protective factor in the past and I am not satisfied to view them now as such.
[58] A6 and T1, G11, page 77.
Mr Littlejohn participated in the Parole-In-Reach Program, and a detailed assessment report[59], treatment summary and recommendations[60] are available. Unfortunately, further information about the authors of these documents and their particular qualifications are not available. While I have found the reports informative, I do not accord the reports the weight of expert opinion evidence in these circumstances. I do not have expert psychological opinion upon which I can rely addressing the causes of Mr Littlejohn’s offending, or suggesting treatment and providing comment on the success of that treatment to date. I do however take the observations in the Parole In-Reach programme documentation into account.
[59] R3,TB9, pages 219 – 222.
[60] R3, TB9, pages 223 – 230.
I note that on initial presentation Mr Littlejohn is recorded to have suggested the offence did not occur as described in the statement of material facts. At that point, there appears to have been further consideration about Mr Littlejohn’s suitability for the program, but when he spoke again with the unidentified author of the relevant document, he is recorded to have accepted responsibility and was assessed as suitable for continued participation. The report notes, as was also noted by the Respondent, that Mr Littlejohn was denied parole due to unmet treatment needs, extensive criminal history and poor response to court imposed orders.
The document contains a risk assessment, apparently arrived at in combination with a ‘violence risk scale’ or VRS-SV the subject of documentary evidence.[61]
[61] T3, TB9, page 181.
The ultimate result of the risk assessment is that Mr Littlejohn presents a risk level described as ‘moderate’.
The treatment summary is particularly informative, although somewhat equivocal. It describes Mr Littlejohn’s initial early engagement with the program as demonstrating frequent denial and minimisation of his family violence behaviour, but recognised this improved throughout the program. The author noted in particular that Mr Littlejohn was unwilling to discuss his daughter and her exposure or involvement with his abusive practices, becoming defensive and frustrated when the topic was raised. This was said to allude to limited insight. However, the report recognises that Mr Littlejohn’s ‘perspective-taking’ improved, and the development of a family and domestic violence ‘safety plan’ (involving the identification of escalation signs and developing a strategy) also improved. The author however concluded that Mr Littlejohn demonstrated a failure to recognise anger before its escalation and this may pose a risk to current and future partners.
Ultimately, the recommendations concluded that Mr Littlejohn had exhibited an understanding of family and domestic violence, and exhibited emerging responsibility and accountability. Outstanding treatment needs were identified as including empathy and safe conflict resolution among other matters.
Returning to Mr Littlejohn’s remarks, I note and take into account his opening remarks delivered with care expressing his remorse and apologising to his victims. I also take into account the personal education and rehabilitation courses Mr Littlejohn has demonstrated, and the favourable remarks from prison authorities about his conduct in prison and engagement in the Parole in-Reach Program in particular. I consider that the prospects of rehabilitation is more positive than the guarded view mentioned by the sentencing judge because of the evidence of Mr Littlejohn’s evidence of introspection when combined with his good behaviour in prison, evidence of engagement in some degree of education and rehabilitation programs, and the evidence of some improvement over time in the Parole in-Reach program.
Ultimately, I would assess the likelihood of Mr Littlejohn reoffending in a way similar to the violent offences he has committed as of a moderate degree of likelihood., reaching the same assessment as the VRS-SV assessment, but not solely because of the existence of that assessment. I am not satisfied to say that it is unlikely that Mr Littlejohn would reoffend similarly given the reservations expressed in the Parole In-Reach assessment, and the lifelong history of repeated violent offending increasing in seriousness, but acknowledge Mr Littlejohn’s expressed contrition and insight is supported by evidence of his engagement in courses and good behaviour in prison.
Mr Littlejohn submits that the risk of reoffending is low, given his sustained efforts at rehabilitation and the deep regret he has for his past actions. I do not agree, and assess the risk as moderate.
Paragraph 7(2) of Direction 110 provides that the first primary consideration, the protection of the Australian community, is generally to be given greater weight that the other primary considerations. The Minister contends this primary consideration weighs very heavily against revoking the visa cancellation.
In undertaking the cumulative exercise of assessing the risk based on the nature of harm to individuals and the Australian community should Mr Littlejohn engage in further criminal against the likelihood of him engaging in such conduct, I consider that a moderate risk of unacceptable harm, remains unacceptable. This consideration weighs very heavily against revoking the decision to cancel Mr Littlejohn’s visa.
Family violence committed by the non-citizen
Paragraph 8.2 of Direction No 110 provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision. This consideration is relevant where, as in Mr Littlejohn’s case, a non-citizen has been convicted of an offence that involve family violence. The consideration is also relevant where, as I shall find also applies to Mr Littlejohn’s case, there is information or evidence from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence.
Mr Littlejohn’s convictions have been considered in depth – and so may be dealt with briefly under this consideration. I note that this offending is relevant to both the protection of the Australian community (already addressed) as well as the family violence considerations. As the High Court recently said in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 at [42]:
The same facts may be relevant to multiple different considerations. In the case of a matter made a mandatory consideration by a direction under s 499(1) of the Act, the matter to be considered may be described in a multiplicity of ways, such as by reference to a particular context, a particular purpose, or a particular assessment. Weighing the relevance or significance of the same facts by reference to those different considerations does not involve “repetitious weighing” or “double counting” in any illegitimate sense. It is doing no more than the direction, in terms, requires, and the direction is not inconsistent with the Act.
In relation to each of Mr Littlejohn’s convictions for assault against female victims, two against Ms C and one against Ms H, and having regard to the definition of family violence for the purposes of the Direction and the inclusion of a person who has or has had an intimate personal relationship with the relevant person, I find that Ms C and Ms H were members of Mr Littlejohn’s family and the offences amounted to family violence. Mr Littlejohn did not contend to the contrary. It follows that I find therefore that Mr Littlejohn has three convictions that involve family violence.
As to whether there is also information from independent and authoritative sources that Mr Littlejohn has been involved in the perpetration of family violence on other occasions, I have taken into account the existence of family violence restraining orders protecting Ms U and Mr Littlejohn’s daughter SH, and records of police investigations in that regard. Mr Littlejohn lived with Ms U between 2012 and 2016.
Mr Littlejohn was taken through those records in the course of his evidence. Mr Littlejohn conceded that he had perpetrated family violence against Ms U, but the nature of that family violence was contested. Mr Littlejohn said it involved verbal abuse and damage to his own property. Mr Littlejohn denied hurting Ms U while SH was present.
Violence restraining orders were in effect against Mr Littlejohn protecting Ms U from October 2014 to October 2016. Mr Littlejohn was asked what had preceded those orders, and speculated that it was possibly a heated argument and his physical presence. Mr Littlejohn gave similar evidence in relation to an earlier shorter term family violence restraining order from 22 December 2014, but said he could not recall what had occurred prior to the order being issued.
A further violence restraining order were issued on 26 November 2019 protecting both Ms U and SH. Mr Littlejohn’s evidence was that he had been persistent in pressing custody arrangements for SH with Ms U and Mr Littlejohn suggested that Ms U may have perceived it as harassment. Noting that the violence restraining orders were now permanent, Mr Littlejohn accepted that Ms U was fearful of him, and when asked why that was so, indicated he had no idea how other people’s minds may think he had reacted violently. When pressed under cross-examination, Mr Littlejohn said his conduct amounted to property damage and verbal abuse, but denied threatening Ms U.
A police incident report of 9 August 2016[62] shows that Ms U had been identified as a victim and Mr Littlejohn had been identified as a perpetrator during an incident. The incident had followed a period of separation between Mr Littlejohn and Ms U. The report refers to Ms U complaining of sexual demands and threats to ‘smash her face in’, and Ms U being fearful of Mr Littlejohn because he had been undertaking martial arts training. Mr Littlejohn stated that the report was completely inaccurate, although he had been undertaking martial arts training. The report also indicated that the perpetrator had previously hurt the victim, and previously threatened to hurt or kill the victim. Mr Littlejohn disagreed with the accuracy of those records.
[62] R3, TB3, page 91.
Mr Littlejohn was able to recall an incident in October 2016, describing it as one of the worst days in his life because it was the last time he saw SH. The document records that Mr Littlejohn had placed SH in the car (Mr Littlejohn explained he was taking her to a leisure centre) and then asked Ms U for a hug. There had been an argument, and it was alleged that Mr Littlejohn had stood between Ms U and SH and threatened to knock Ms U out. Mr Littlejohn denied this conduct.
The Respondent submits that I should give weight to the police records, and prefer those records to Mr Littlejohn’s evidence in relation to the conduct engaged in that resulted in the family violence restraining orders being obtained by virtue of Mr Littlejohn’s convictions alone the consideration of family violence is engaged. With the exception of the reference to Mr Littlejohn having ‘previously hurt’ Ms U, in respect of which there is no other evidence of physical violence being perpetrated on her other than a mark of “y” to that question, I accept the Respondent’s contention in relation to the specific documented occurrences of Mr Littlejohn making threats of violence and intimidatory behaviour as described in the police reports, and am satisfied that conduct of that general nature occurred. That such conduct occurred is consistent with the multiple family violence restraining orders being issued, and I consider the police reports recording the allegations made by Ms U are authoritative. I am satisfied that Mr Littlejohn perpetrated acts of family violence of that nature against Ms U, notwithstanding he has not been convicted of any offences against her.
Turning to the factors I must take into account in considering the seriousness of the family violence engaged in by Mr Littlejohn, I have considered the frequency of Mr Littlejohn’s conduct and whether there is any trend of increasing seriousness. I am satisfied that there is clear evidence of sufficiently frequent family violence to attract the description of the family violence being very serious indeed, and as discussed previously, I am further satisfied that there is a demonstrated trend of increasing seriousness culminating in the aggravated assault resulting in Mr Littlejohn’s imprisonment.
As to the cumulative effect of repeated acts of family violence, I have considered that Mr Littlejohn’s repeated acts of family violence when viewed cumulatively over time, and in respect of three different victims further add to the seriousness with which the conduct is to be viewed.
I have discussed the evidence available and my findings in relation to Mr Littlejohn’s rehabilitation, including the development in his acceptance of responsibility and understanding of the impact of his behaviour on the victims and those who observed his behaviour. As mentioned above, I can see in the evidence elements of positive development in this regard, subject to limitations. While I view those developments positively, I do not consider the assessments so encouraging as to re-characterise the seriousness of Mr Littlejohn’s family violence as other than very serious.
Having regard to the history of Mr Littlejohn’s offending and engagement with the criminal justice process, there is ample evidence of Mr Littlejohn being warned, in the sense of dealt with, by the courts on multiple occasions regarding family violence and also breaches of family violence restraining orders. Prior to the conviction for an aggravated assault, Mr Littlejohn had been previously convicted twice for assaults in circumstances of family violence, and been convicted three times for breaches of family violence restraining orders, noting that those breaches did not involve acts of physical violence in themselves. I consider that Mr Littlejohn was regularly and amply warned through his engagements with the criminal justice system, and yet he reoffended with an aggravated assault in the index offence. I view Mr Littlejohn’s demonstrated failure to respond positively to warnings and punishments from the Courts and law enforcement for acts of family violence as adding to the seriousness with which his family violence must be viewed.
I view the offences and acts of family violence Mr Littlejohn has engaged in over time as very serious indeed. I consider this primary consideration weighs very heavily against revoking the visa cancellation.
The strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Paragraph 8.3 of Direction No 110 provides that:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
In respect of paragraph 8.3(1) of Direction 110, the Applicant relies on the following family members: his mother (Ms Jacqui Littlejohn); his sister (Ms Renee Littlejohn) and her three children ([WI], [CR], [HU] and [WE]), his brother Peter and his daughter [KY], his brother Rapata and his daughter (whose name Mr Littlejohn could not recall), his partner (Ms Rachel Cooper) and her son [TH], and Mr Littlejohn’s own two minor children [KU] and [SH].
I will consider the impact of the decision on Mr Littlejohn’s minor family members in the course of considering the best interests of children affected by the decision under the next primary consideration, but do not disregard that the children are also immediate family members in Australia who are either Australian citizens or people who have a right to remain in Australia indefinitely.
Mr Littlejohn’s brothers Peter and Rapata did not give evidence to the Tribunal, and nor were any written representations made by them. Mr Littlejohn gave evidence that he does not have much contact with his brothers. He had spoken with his brother Peter approximately a month before the hearing, but had not spoken with his brother Rapata for many months.
Given Mr Littlejohn’s evidence suggesting he is not close to his brothers and has maintained contact with them to the limited extent he has by telephone, I do not consider the impact of my decision will be significant either way. If Mr Littlejohn’s visa remains cancelled and he returns to New Zealand, Mr Littlejohn’s relationship with his brothers can be maintained by telephone.
In relation to Mr Littlejohn’s partner Ms Renee Cooper, as explained above, I have significant reservations about accepting Mr Littlejohn’s evidence about the status and significance of the relationship in circumstances where Ms Cooper did not give evidence to the Tribunal (despite my attempts to facilitate this) and given her statements are neither signed nor adopted.

The fifth primary consideration requires the Tribunal to weigh the expectations of the Australian community. Paragraph 8.5(1) of Direction No 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Direction goes on to state that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the government would not allow them to enter or remain in Australia.
Paragraph 8.5(2) directs that visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Direction No 110 notes that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of particular kinds. The paragraph directs that, in particular, the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paras 8.5(2)(a)–(f). Those particularised types of harm generally reflect the types of conduct identified in para 8.1.1 as conduct which is considered ‘very seriously’ or ‘serious’.
Paragraph 8.5(3) of Direction No 110 further confirms that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. In doing so, para 8.5(3) arguably further qualifies the ‘norm’ expressed in para 8.5(1), which refers to the ‘unacceptable risk’ of conduct being engaged in. This makes it clear that a ‘measureable [sic] risk’ of physical harm to the community is not required for the community expectation that the non-citizen not hold a visa to be engaged, where serious character concerns are raised through the persons conduct or offending.
This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
Mr Littlejohn has engaged in conduct identified in paragraphs 8.5(2)(a) and (c), as he has engaged in conduct amounting to acts of family violence and the commission of serious violent crime against women. I find the Australian community would expect that Mr Littlejohn’s visa would remain cancelled. I consider that the expectation of the Australian community weighs heavily against revocation.
In weighing this consideration, I am guided by the principles in para 5.2 of Direction No 110. Paragraph 5.2(2) states that the safety of the Australian Community is the highest priority of the Australian Government. Paragraph 5.2(3) directs that the Applicant, having engaged in criminal conduct, should expect to forfeit the privilege of staying in Australia. Paragraph 5.2(4) expresses a principle similar to para 8.5(3) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community.
Other considerations
Paragraph 9 of Direction No 110 states:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)legal consequences of the decision;
b)extent of impediments if removed;
d)impact on Australian business interests
Legal consequences of decision under section 501 or 501CA
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[69]
[69] Direction No 110 para 9.1.
While this consideration in Direction No 110 refers to non-refoulment obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a decision not to revoke the cancellation of the Applicant’s visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
·Unlawful status;
·The likelihood of becoming subject to detention and/or removal;[70]
·Refusal of other visa applications and cancellation of other visas;[71]
·A prohibition on applying for other visas;[72] and
·Periods of exclusion and special return criteria may apply.[73]
[70] Migration Act ss 189, 196, 197C, 198.
[71] Migration Act s 501F.
[72] Migration Act s 501E.
[73] Migration Act s 503, special return criteria (SRC) 5001.
Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[74] Under section 189 of the Migration Act, the Applicant must be detained and removed as soon as reasonably practicable under section 198.
[74] Migration Act s 15.
If the cancellation of the visa is not revoked, Mr Littlejohn will continue to be detained under section 189 of the Act and will be removed from Australia to New Zealand as soon as practicable under section 198 of the Act. In Mr Littlejohn’s case, as his country of nationality is New Zealand, there are no non-refoulement claims raised and there is no evidence of any practical difficulty, in effecting removal to New Zealand, I am satisfied that the legal consequences of a decision not to revoke the visa cancellation is that Mr Littlejohn will be removed to New Zealand.
Section 501E of the Act operates to very substantially restrict Mr Littlejohn’s ability to apply for another visa while in the migration zone. Furthermore, certain visas (indeed most classes of visa) are subject to special return criteria 5001(c) which provides for ‘permanent’ exclusion if a visa has previously been cancelled under section 501 of the Act and there has been no revocation under section 501CA, although special return criteria cease to apply if the Minister acts personally to grant a permanent visa to a person whose visa was cancelled under section 501 of the Act.
At the time of this decision, the law as to whether the operation of special return criterion 5001(c) amounts to a legal consequence of the decision appears to be somewhat unsettled. In this regard, I mention the decision of Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; 246 FCR 146 and more recently Rano v Minister for Home Affairs, Minister for Cyber Security (2 September 2024) [2024] FCA 1003.
I understand that Rano has been appealed by the Respondent, but at the time of my decision it relevantly binds me. In that matter, the Court concluded that the applicant’s indefinite exclusion from travel to, entry and (or) remaining in Australia was a legal consequence of a decision to cancel his visa…and [a]ccordingly was a consideration the Minister was bound to take into account (at [14]). However, the Court in Rano recognised that the outcome was an obvious outcome and was plainly intended from the overall statutory scheme. It was not necessary to expressly mention it because it looms large and forms part of the implicit, if not explicit, assumption and backdrop against which all considerations are to be evaluated.
As the practical operation of these provisions are currently understood to amount to a legal consequence of a decision not to revoke a visa cancellation, and in any event, I record for completeness that I am acutely aware of them and take them into account. I observe that I have attached weight to Mr Littlejohn’s concerns regarding maintaining contact with his immediate family, including minor children and nieces and nephews in the course of considering the applicable considerations. I attach no further weight to those matters under the ‘other’ consideration of ‘legal consequences’, but do recognise the way section 501E and special return criterion 5001 operate.
I consider this consideration carries neutral weight in Mr Littlejohn’s case.
Extent of impediments if removed
Paragraph 9.2 of Direction No 110 provides that taking into account the matters identified in sub-paragraphs 9.2(1)(a), (b) and (c) of Direction No 110, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under sub-paragraphs 9.2(1)(a), (b) and (c) are:
·The Applicant’s age and health;
·Whether there are substantial language or cultural barriers; and
·Any social, medical and/or economic support available to the Applicant in their country.
Mr Littlejohn explained in his evidence that he has not maintained contact with any extended family members in New Zealand, notwithstanding that his mother comes from a very large family. While Ms Jacqueline Littlejohn acknowledged she would do everything she could to put Mr Littlejohn in touch with members of his extended family in New Zealand, and she herself is not close with them, I accept that Mr Littlejohn would lack the immediate support of family and friends upon removal to New Zealand.
Mr Littlejohn however is in good health and is relatively young. His age and health present no impediment in themselves, on the evidence before me, to Mr Littlejohn establishing himself and maintaining basic living standards. In this regard, Mr Littlejohn would be able to access social security and health care as New Zealand citizen in New Zealand. As a broad proposition, in the absence of any contrary evidence, the Tribunal is entitled to take into account that the Applicant would have access to government benefits similar to those available to him in Australia.[75]
[75] Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296. See also Webb v Minister for Home Affairs [2020] FCA 831 at [90], [99]-[100
Mr Littlejohn does not contend that there are any language or cultural barriers, and in that regard it is well understood that Australia and New Zealand share the same language, and while there are cultural differences, the cultures of the two nations are essentially similar.
The most significant impediment to Mr Littlejohn re-establishing himself in New Zealand arises due to the length of residency in Australia, and the absence of family and personal social support. The latter difficulties can reasonably considered to be temporary. There is nothing in the evidence suggesting that Mr Littlejohn’s psychology or personal characteristics may mean that he could not readily overcome these inevitable hardships.
Nonetheless, given the duration of Mr Littlejohn’s residency in Australia and the inevitable psychosocial shock that will be encountered upon removal from Australia, I give some weight to this consideration in favour of revoking the decision to cancel Mr Littlejohn’s visa. The consideration however attracts only mild weight in my view.
Impact on Australian business interests
Paragraph 9.3 of Direction No 110 states:
(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.
Mr Littlejohn did not advance a case in this regard. I have observed from the whole of the material however that Mr Littlejohn has maintained employment in Australia with a range of businesses, and I have evidence from Mr Harrison to the effect that Mr Littlejohn was a valued employee of that business and would be able to return to that employment. However, there is no evidence to suggest that Mr Littlejohn being unavailable to return to that employment would have any adverse effect on the business, and no evidence that it would compromise the delivery of a major project or important service.
The Tribunal considers this consideration weighs neutral in the Applicant’s case.
Other matters
In written submissions, including written submissions received after the hearing, Mr Littlejohn draws my attention to examples of other decisions of the Administrative Appeals Tribunal where he considers his case aligns with the reasoning of the Administrative Appeals Tribunal which decided in those cases to revoke decisions to cancel visas. While I have taken into account Mr Littlejohn’s submissions in this regard, I note that each individual case requires intensive individual analysis, and examples of outcomes in selected other cases provides no persuasive force.
In his final written submissions, Mr Littlejohn appears to invite me to view his conviction as a ‘false guilty plea’, and it was unjust for reliance to be placed on the conviction because it was a legal strategy based on advice from his legal counsel who had assessed a guilty plea would lead to the discontinuation of other charges.
I expressly reject the submission from Mr Littlejohn in that regard. Mr Littlejohn plead guilty and was convicted by a court of criminal jurisdiction in respect of the index offending. I may not go behind that conviction.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has therefore considered whether there is ‘another reason’ why the Cancellation Decision should be revoked, having regard to the primary and relevant other considerations in Direction No 110.
Paragraph 7 of Direction 110 sets out the way in which the relevant considerations are to be taken into account and weighed. The protection of the Australian community is generally to be given greater weight than the other primary considerations, and otherwise primary considerations are generally to be given greater weight than other considerations, and one or more primary considerations may outweigh other primary considerations.
There has been extensive judicial consideration of how the exercise of balancing and weighing the considerations contained in the relevant Ministerial Directions is to be undertaken (considering a number of Ministerial Directions preceding Direction No 110).[76] Relevantly, the Full Court of the Federal Court considered the operation of Direction 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[77] While the Court was considering Direction No 90, it’s observations would apply to Direction No 110. The Court found that the Tribunal must weigh the various primary and other relevant considerations outlined in the Direction (in this case Direction No 110) against each other and undertake an evaluation of whether there was ‘another reason’ why the cancellation should be revoked.[78]
[76] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
[77] [2023] FCAFC 138.
[78] At [35].
In comparing and balance all of the considerations to determine whether the Cancellation Decision should be revoked, I have found that the first primary consideration (the Protection of the Australian community) weighs very heavily against revoking the decision to cancel the visa, as does the second primary consideration (family violence committed by the non-citizen). The fifth primary consideration (expectations of the Australian Community) weighs heavily against revoking the decision to cancel the visa.
The strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revocation, in my view heavily so.
The best interests of minor children affected by the decision also weighs heavily in favour of revoking the decision to cancel the visa, and in particular I have found that [KU]’s best interests are served by revoking the decision to cancel the visa.
In relation to the relevant ‘other considerations’ identified in Direction No 110, the Tribunal finds that the legal consequences of the decision weighs neither for nor against revocation and should be afforded neutral weight in Mr Littlejohn’s case.
The extent of impediments if removed weigh mildly in favour of revoking the cancellation of the Applicant’s visa.
The impact on Australian businesses weighs neutrally in Mr Littlejohn’s circumstances.
In my final analysis, and having regard to the Direction at clause 7, I consider that the protection of the Australian community, Mr Littlejohn’s conduct amounting to family violence and the expectations of the Australian community combine to outweigh all other considerations, including, after sustained deliberation, [KU]’s best interests. I therefore find no other reason to revoke the decision to cancel Mr Littlejohn’s visa.
I affirm the decision under review.
DECISION
The decision of the delegate of the Minister dated 12 September 2024 not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa under section 501CA(4) is affirmed.

253. I certify that the preceding 252 (two-hundred and fifty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Kennedy.

..........[SGD]..........
Associate
Dated: 5 December 2024

Date of hearing: 20 and 21 November 2024

Applicant’s Representative: Self-Represented

Respondent’s Representative: Ms Daphne Jones-Bolla of Sparke Helmore
ANNEXURE A – TABLE OF THE APPLICANT’S OFFENDING HISTORY

Offending table details drawn from the Australian Criminal Intelligence Commission ‘Check Results Report,’ dated 25 September 2023.[79]

[79] T1, G4.

Conviction Date	Court	Offence	Court Result
1.	26 May 2023	Perth District Court of Australia	Unlawfully assault and thereby did bodily harm with circumstances of aggravation	Imprisonment: 2 Years Concurrent from 8 June 2022
2.	23 April 2019	Rockingham Magistrates Court	Breach family violence restraining order or violence restraining order	Fine: $500
3.	23 August 2017	Rockingham Magistrates Court	Breach family violence restraining order or violence restraining order	Fine: $1000
4.	28 June 2017	Rockingham Magistrates Court	Breach of violence restraining order	Fine: $500
5.	31 March 2011	Perth Magistrates Court	No authority to drive – never held and disqualified	Fine: $1000 Mdl Disqualified – 9 Months Cumulative
6.	31 March 2011	Perth Magistrates Court	Exceed 0.08g alcohol per 100ml of blood	Fine: $2000 Mdl Disqualified – 15 Months
7.	1 July 2010	Rockingham Magistrates Court	Stealing	Fine: $500
8.	8 March 2010	Perth Magistrates Court	No driver’s license (suspended)	Fine: $1000 Mdl Disqualified – 9 Months Cumulative
9.	8 March 2010	Perth Magistrates Court	Willfully & unlawfully destroy or damage property	Fine: $750
10.	8 March 2010	Perth Magistrates Court	Breach of suspended imprisonment order	Fine: $1000
11.	4 March 2009	Perth Magistrates Court	No authority to drive – suspended	Fine: $1000 Mdl Disqualified – 12 Months Cumulative
12.	4 March 2009	Perth Magistrates Court	Exceed 0.08g alcohol per 100ml of blood	Fine: $1200 Mdl Cancelled – 8 Months
13.	23 October 2008	Perth Magistrates Court	Breach of CBO	Fine: $200 $500
14.	23 October 2008	Perth Magistrates Court	Assault occasioning bodily harm	Suspended imprisonment order: 12 Months imprisonment concurrent suspended for 12 Months
15.	23 October 2008	Perth Magistrates Court	No authority to drive (fines suspended)	Fine: $250
16.	23 July 2008	Perth Magistrates Court	Disorderly behaviour in a public place	Fine: $500
17.	13 November 2007	Perth Magistrates Court	No driver’s license (suspended)	Fine: $500 Mdl Disqualified – 9 Months Cumulative
18.	9 October 2007	Joondalup Magistrates Court	Common assault	Community Based Order – 12 Months
19.	9 October 2007	Joondalup Magistrates Court	Criminal damage	Community Based Order – 12 Months
20.	24 January 2007	Perth Magistrates Court	Excess 0.08%	Fine: $700 Mdl Disqualified – 5 Months
21.	10 January 2007	Perth Magistrates Court	Dangerous driving occasioning bodily harm	Fine: $2000 Mdl Disqualified – 15 Months
22.	25 August 1999	Narrogin Court of Petty Sessions	Threatening behaviour	Fine: $300
23.	25 August 1999	Narrogin Court of Petty Sessions	Unlawfully remain on premises	Fine: $500
24.	10 June 1998	Narrogin Court of Petty Sessions	Disorderly conduct	Fine: $150
25.	10 June 1998	Narrogin Court of Petty Sessions	Damage	Fine: $200
26.	15 April 1998	Narrogin Court of Petty Sessions	Damage	Fine: $250
27.	15 April 1998	Narrogin Court of Petty Sessions	Disorderly committing a nuisance	Fine: $100
28.	15 April 1998	Narrogin Court of Petty Sessions	Disorderly creating a disturbance	Fine: $100
29.	15 April 1998	Narrogin Court of Petty Sessions	Assault public officer	Fine: $1250
30.	10 March 1998	Wagin Court of Petty Sessions	Disorderly fighting	Fine: $100

Date of hearing:	20 and 21 November 2024
Applicant’s Representative:	Self-Represented
Respondent’s Representative:	Ms Daphne Jones-Bolla of Sparke Helmore