Manebona and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 3321

Manebona and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 3321 (3 September 2024)
Division:GENERAL DIVISION
File Number(s): 2021/7039
Re:John Manebona
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION
Tribunal:Senior Member N Manetta
Date: 3 September 2024
Date of written reasons: 18 September 2024
Place:Adelaide

The Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the applicant’s visa be revoked.
.........[sgnd]...............................................................
Senior Member N Manetta
CATCHWORDS
MIGRATION – mandatory cancellation of visa under section 501(3A) of Migration Act 1958 – applicant clearly fails character test – whether another reason to revoke cancellation – Direction 110 – applicant guilty of serious episode of domestic violence against former partner – former partner now incarcerated – interests of two minor children weigh heavily in favour of revocation of cancellation decision – decision set aside and decision revoking cancellation of visa substituted
LEGISLATION
Migration Act1958 (Cth)
CASES
Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9
Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 271 FCR 326; (2019) 166 ALD 1; (2019) 79 AAR 545
SECONDARY MATERIALS
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)
REASONS FOR DECISION
Senior Member Dr N A Manetta
18 September 2024

On 3 September 2024, I delivered my decision in this matter. I indicated to the parties that reasons would follow in a reasonable time. I took the course of delivering a decision without accompanying written reasons[1] because I was clear as to the appropriate result, which favoured the release of Mr Manebona from immigration detention, and because I took the view that it was appropriate that he be released without delay given the very lengthy time he had already spent already in immigration detention. I have now prepared written reasons in this matter, which I now publish.[2]
[1] A course permitted in Khalil v Minister for Home Affairs [2019] FCAFC 151; (2019) 271 FCR 326; (2019) 166 ALD 1; (2019) 79 AAR 545.
[2] The reasons contain certain standard paragraphs; namely, [7] and [25]-[28].
This is an application by Mr John Manebona seeking a review of the decision of the delegate of the respondent dated 29 September 2021. By this decision, the delegate declined to revoke the cancellation of Mr Manebona’s visa,[3] which had earlier taken place earlier, and mandatorily so, under section 501(3A) of the Migration Act, 1958 (Cth) (‘the Act’). Mr Manebona received a lengthy jail sentence of two years as a result of a protracted and violent assault upon his then domestic partner. Part of that lengthy sentence was required to be served in jail on a full-tie basis. In these circumstances, his visa was required to be cancelled.
[3] A Class BC Subclass 100 spouse visa.
Once his visa was cancelled, Mr Manebona applied to have his visa reinstated.[4] The internal-review delegate had two questions to consider under section 501CA(4)(b) of the Act. The first was whether Mr Manebona passed the so-called ‘character test’ prescribed under section 501(6). The delegate answered this question in the negative, and correctly so in my view: Mr Manebona could not pass the character test given the lengthy sentence of imprisonment he had received.[5] The second question the delegate had to consider, given the answer to the first question, was whether there was ‘another reason’ ‒ that is, a reason other than Mr Manebona passing the character test ‒ warranting the revocation of the visa cancellation. In addressing this question, the delegate was required to apply any direction issued under section 499 of the Act. Direction no. 90[6] was then in force. Having applied this direction, the delegate concluded that the preferable outcome favoured non-revocation of the cancellation decision. It followed in the delegate’s view that there was not ‘another reason’ for the cancellation decision to be revoked, and the delegate formally declined to take that course.[7]
[4] More exactly, he responded in a timely way to an invitation given to him under section 501CA(3)(b) of the Act to make representations about the revocation of the cancellation decision.
[5] See section 501(6)(a) and 7(c).
[6] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 8 March 2021)
[7] The delegate’s reasons appear at Ex R1, 21ff.
Mr Manebona brought a timely application to this Tribunal seeking to have the cancellation of his visa revoked. He has had this application considered by this Tribunal on two earlier occasions. On each of those occasions, he was unsuccessful before the Tribunal, but he brought a successful judicial review application in the Federal Court on each occasion. The matter has come before the Tribunal again, by way of a Federal Court remittal order, for what is a third hearing in respect of Mr Manebona’s application to the Tribunal.[8]
[8] Ex R1, 694.
These facts explain the very lengthy time that Mr Manebona has spent in detention: very nearly three-and-a-half years. As I indicated at the outset of these reasons, once I had formed the clear view that I should set aside the decision under review, I decided that my decision should be provided without reasons rather than prolong the period in detention while I prepared written reasons.
TRIBUNAL’S TASK
Like the internal review delegate, I must address the two questions that section 501CA(4)(b) of the Act requires to be answered. I have already indicated that in my view, the first question was correctly answered by the delegate. In respect of the second question, I, too, must apply any direction issued under section 499 of the Act. Since the internal-review delegate’s decision in 2021, the relevant direction has changed. The direction currently in force is Direction no. 110.[9] I have applied this later direction.
[9] 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).
In a case like this, I note that the Tribunal hears the matter afresh. It does not merely review the delegate’s decision for error, but reaches the correct or preferable decision on the evidence adduced before it.[10] It hears evidence and oral submissions and receives written documents and written submissions. It follows that the Tribunal may set aside the decision under review notwithstanding the absence of any error in the delegate’s reasons if that is the correct or preferable decision on the evidence before it; equally, the Tribunal may affirm the decision under review notwithstanding the presence of a clear error in the delegate’s reasoning if that is the correct or preferable decision on the evidence before it.
[10] See, for example, Frugtniet v ASIC [2019] HCA 16; (2019) 266 CLR 250; (2019) 79 AAR 9 at [51].
STATEMENT OF CONCLUSION
I have decided to set aside the decision under review and to substitute a decision that the cancellation of Mr Manebona’s visa be revoked. I now turn to explain the background facts and my reasons for this conclusion.
BACKGROUND FACTS
Mr Manebona was born in Honiara in the Solomon Islands in November 1986. He was 37 at the time of the hearing before me. His mother, Ms Joyce Sheedy, is currently living in Brisbane, where she has resided for some considerable time. Mr Manebona’s biological father died last year, still resident, as I understand matters, in the Solomon Islands.
When Mr Manebona first came to Australia in 2001, he was almost 15 years of age. He had come to attend his mother’s wedding. (I understand that Mr Manebona’s parents had separated some time earlier, and his mother left to live in Australia, where she eventually met a new partner.) Mr Manebona said he travelled back to the Solomon Islands after about a year, but then returned to Australia in approximately 2007 (when he must have been about 21). In addition to his biological mother, Mr Manebona has a sister living in Australia, Ms Margaret Manebona.
On his return to Australia in 2007, Mr Manebona was unemployed for just two weeks, he said, after which he found work as a welder. That job lasted two years before, unfortunately, the company closed and he had to find new employment. He described his work thereafter as that of a ‘trolley boy’, which I take to have involved the retrieval and general management of shopping trolleys. He did this work for Woolworths and Kmart and worked nine hours a day seven days a week, he said. He left after about six months because he was exhausted.
He then worked as a volunteer as part of the ‘work-for-the-dole’ scheme in a food-processing centre for homeless men. This placement lasted almost two years. After that placement, Mr Manebona was engaged in a job laying footpaths in new suburbs with a contracting team. This appeared to be a full-time job (Monday to Friday working from 6 am to 12 noon). It lasted six months, and then he undertook general labouring work for some four months.
Mr Manebona then secured work with a pallet company called ‘A1 Pallet’. This was a job he very much enjoyed, he said. He had a good employer and felt part of a team. He believes he may have been working at this job for about two years before he went to prison.
He entered prison, he said, on 9 December 2020 in respect of certain serious family-violence offending. On 10 February 2021, while Mr Manebona was still in jail, his visa was cancelled mandatorily under section 501(3A) of the Act. Given the cancellation of his visa, Mr Manebona was released to immigration detention when he was paroled on 9 March, 2021. He has remained there since that time. As at the date of my decision (3 September 2024), Mr Manebona had been in detention for just a few days short of three-and-a-half years.
Mr Manebona had a relationship with a woman to whom I shall refer as Ms ‘W’ (since she has been the victim of family violence inflicted). She is the mother of two children by Mr Manebona, ‘J’ and ‘P’. J is now nine years of age; P, seven.
Mr Manebona’s criminal record was in evidence before me.[11] In May 2011, Mr Manebona appeared before the Holland Park Magistrates Court. He was charged with unauthorised dealing with shop goods (maximum $150). No conviction was recorded but he was fined $150. Just one month later, he was again convicted of the same offence. It would appear that he committed the offence just five days after being dealt with for the earlier offence. On this latter occasion, a conviction was recorded and he was fined $160. In August 2011, he appeared before the same court on a charge of possessing dangerous drugs, but no conviction was recorded. A fine of $200 was imposed, however. He was convicted in January 2012 of wilful damage. A conviction was recorded, and he was fined $300. That offence was committed, I note, in December 2011.
[11] Ex R1, 38ff.
Mr Manebona then remained of good behaviour for over a year before committing the offence of being in possession of utensils or pipes that had been used in connection with drugs. No conviction was recorded but a fine of $200 was imposed. Mr Manebona failed to appear in accordance with an undertaking (two counts) and was convicted in December 2013 of these two charges. Again, no conviction was recorded but he was fined $200.
There was, again, a break of almost a year in his criminal behaviour before he was found guilty once again of possessing utensils or pipes for use in connection with drugs. He was fined $200 but no conviction was recorded. He stayed out of trouble for almost 18 months before again being found guilty of possessing dangerous drugs as well as possessing utensils or pipes that had been used in connection with those drugs. Again, no conviction was recorded but a fine of $400 was imposed.
Pausing here, I note that the offending I have described has undoubted antisocial elements to it and demonstrates quite some persistence; but none of the offending led to the imposition of a jail sentence, suspended or otherwise, and in many instances no conviction was recorded. This tends to indicate that the offending was treated in the Courts as minor only. Moreover, there are periods of time, which I have mentioned, when Mr Manebona did not offend.
There are a number of driving and fare-evasion offences which do not appear in the national criminal history but which I am satisfied have occurred. These are summarised by the respondent in its Statement of Facts, Issues and Contentions.[12] I need not set them out. There is a strongly antisocial element to driving whilst disqualified or whilst not holding a licence. I accept that there is inherent danger in an unqualified person seeking to drive. There was, however, no charge of driving dangerously, which would have significantly elevated the seriousness of Mr Manebona’s misconduct. That said, the offending in this regard is defiant and goes against the public interest in the maintenance of well-ordered and safe traffic on roads. The crime of public urination is offensive, but minor; and the crimes of travelling without a fare, whilst unfair to the community at large, are essentially minor as well. I note all these offences, and I note further that they evidence a strong tendency not to be law-abiding; but it is only right in my opinion to recognise that the offending consists of a number of offences, admittedly large, of a comparatively minor nature only. That is reflected in their treatment in the Courts.
[12] Ex R3.
I turn now to very serious offences. These are the offences that led to Mr Manebona’s incarceration and to the cancellation of his visa. On 14 October 2019, Mr Manebona violently assaulted his then partner, Ms W, at her home. At an earlier point in time, a domestic violence order had been issued to protect Ms W and their children. I have had regard to the sentencing remarks, both in respect of the three offences of violence dealt with in the District Court of Queensland and in respect of the breach of the domestic violence order, which was dealt with in the Magistrates Court.[13] I accept the sentencing remarks and rely on them.
[13] See Ex R1, 41ff and 46ff respectively.
The District Court refers to an argument having taken place, and it refers to both Mr Manebona and Ms W having consumed alcohol. It refers to Mr Manebona leaving the premises to prevent an escalation of the argument. He returned, however, at 7 pm ‘intoxicated and angry’ according to the sentencing remarks.[14] Ms W asked him to leave, but this made him all the angrier. He grabbed Ms W by the arms and shoulders and then grabbed her by the throat and squeezed her neck. Ms W lost her breath for about five to ten seconds, which I note is a considerable period of time. She was dragged into the next room and thrown on the ground having first been lifted up by her throat. She landed hard and felt pain to her head. The children witnessed these events. The relationship between Mr Manebona and Ms W was described as ‘fairly toxic’ with ‘alcohol being involved with (sic) both parties’.[15]
[14] Ibid, 42.
[15] Ibid.
Ms W’s injuries are described in the sentencing remarks: bruising to the neck, head and back, abrasions to the side, and red hand marks on the neck. The Court regarded the offending as ‘reasonably protracted’.[16] The Court imposed three separate sentences in respect of the three charges before it. A sentence of three months was imposed in respect of a common assault (domestic violence offence); a sentence of 18 months for an assault occasioning bodily harm (domestic violence offence); and a sentence of two years for choking/suffocation/strangulation in a domestic relationship. All of the sentences were to be served concurrently. They were also to be suspended for two years after three months had been served in jail. I do note that the Court would have imposed even longer sentences but for, amongst other things, the strong prospect of deportation. That implies that the offending should be assumed to be even more serious than the sentences themselves suggest even though the sentences are in any event long. The Court refers to the fact that it was ‘impressed’ Mr Manebona has engaged in a recovery program.[17] It refers also to alcohol clearly being a bad thing for both Mr Manebona and Ms W.[18]
[16] Ibid, 43. Apparently transcribed wrongly as ‘reasonably protected’.
[17] Ibid.
[18] Ibid.
The breach of the domestic violence order was dealt with, as I have said, in the Magistrates Court. This attracted a lengthy sentence of 12 months, which was also to be served concurrently. I note that the Magistrates Court referred explicitly to the seriousness of the strangling offence.[19]
REASONS
[19] Ibid, 47.
Considerations arising under the Direction
I now turn to Direction no. 110 (‘the Direction’) and make the following prefatory remarks. The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in subparagraphs numbered (1) to (8). I set out some of the salient features of these principles.
First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, the safety of the Australian community is the highest priority of the Australian Government. Accordingly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia, and the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct may, however, be afforded to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may prove insufficient justification (to warrant not cancelling the visa, not refusing the visa, or revoking a mandatory cancellation), and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.
Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that paragraph 7(1) directs me to give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 7(2) also directs me to give greater weight ‘generally’ to the protection of the Australian community over other primary considerations, and it also provides that primary considerations should ‘generally’ be given greater weight over ‘other’ considerations.
Application of the Direction

I now turn to apply the Direction. Paragraph 8.1(1) requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. That is, self-evidently, an important statement, and I note that it reinforces the principle in paragraph 5.2(2) to the same effect. The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. I am to have particular regard to the principle that remaining in Australia is a privilege that Australia confers on non-citizens like Mr Manebona in the expectation that they be law-abiding, respect Australian institutions and not cause or threaten harm to individuals or the Australian community. The statements of principle in this paragraph are important, self-evidently, given the very serious offences of violence of which Mr Manebona was convicted.
Decision-makers are required to give consideration to 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: paragraph 8.1(2). I have decided in this case that the comparatively minor offending to which I have already referred does not constitute a ‘tipping point’ in my deliberations. Certainly, I must take it into account and I have done so; but it would be wrong in my opinion to attribute to it such weight that it would prove to be a factor that would warrant my affirming the decision under review in circumstances where the very serious family-violence offending did not by itself warrant that course. Since I have formed the view that the offending, whilst it must be taken into account, does not constitute, as I have said, a ‘tipping point’, it is appropriate that I focus on the family-violence offending. I shall do so in the remainder of these reasons.
I turn now to deal with the nature and seriousness of that conduct to date. Mr Manebona’s very serious offending involving his then partner must be taken very seriously under the Direction. The crimes committed were violent and they were against a woman, and they constituted acts of family violence. The offending, therefore, is very serious on all these counts.[20]
[20] See paragraph 8.1.1(1)(a) of the Direction.
I also bear in mind that there were, no doubt, other instances of family violence. In her psychological report, Dr Kwok refers to the very turbulent relationship between Mr Manebona and Ms W.[21] There was, I note, a domestic violence protection order in place that was breached; and the order was issued, no doubt, because of severe discord in the household. Mr Manebona also referred in his evidence to the problems he and Ms W had had with alcohol and cannabis abuse during their relationship. All in all, there must have been other instances of family violence. What form that violence took ‒ I note that ‘family violence’ is defined broadly in section 4 of the Direction ‒ and how often it occurred cannot be established with clarity on the evidence before me; but I proceed on the basis that the charged offending is not the only instance of violence in the relationship. I need not have regard to the sentences imposed by the Courts because the offending in question is always to be taken very seriously under the Direction;[22] but the Court’s sentences were long, and, as I have said, they were discounted given the very real prospect of deportation. I note also in this connection the lengthy sentence that was imposed in the Magistrates Court for the breach of the domestic violence order.
[21] Ex A7, 5 [35].
[22] See paragraph 8.1.1(1)(c) of the Direction.
There has been frequency in Mr Manebona’s offending.[23] I have already referred to the fact that there must have been other acts of domestic violence, and there is also a non-trivial (albeit comparatively minor) series of offences to which I have referred. There is clearly a trend of increasing seriousness in the offending as well.[24] Mr Manebona’s choking and strangulation of his victim for up to ten seconds constituted a most serious and dangerous assault. That is an important aspect of the matter. It attracted a long sentence. The Court expressly described his offending as ‘reasonably protracted’, as I have said. There is a cumulative effect in repeated offending, particularly in the context of domestic violence, and I do not doubt that Mr Manebona’s offending towards Ms W had quite profound effects upon her. I take account of all these matters.
[23] See paragraph 8.1.1(1)(e) of the Direction.
[24] Ibid.
I must have regard to the risk of recurrence: see paragraph 8.1.2 of the Direction. In weighing the risk, I am to have regard to the Government’s view that the Australian community’s tolerance of any risk of future harm becomes lower as the seriousness of the potential harm increases. I am to have regard to the principle that some conduct, if it were repeated, is so serious any risk of repetition may be unacceptable: see paragraph 8.1.2(1). This principle carries particular weight in respect of domestic violence offences of an extreme character as have occurred here.
In assessing risk, I must have regard to two matters ‘cumulatively’; namely, the nature of harm to individuals or the Australian community should Mr Manebona engage in further criminal or other serious conduct, and the likelihood of his so doing: see paragraph 8.1.2(2) of the Direction.
It is clear that the nature of the harm to a victim if the family violence conduct were repeated could be extremely serious. Drunken violence can have grave and unpredictable consequences. Choking a victim and hurling her to the ground can result in extreme injuries and may also be life-threatening. So, all in all, my assessment must be grave.
In assessing the likelihood of Mr Manebona re-offending, there are a number of matters to be taken into account. First, I accept that the relationship was ‘reasonably toxic’ as the sentencing Court found. In making that observation, I do not mean at all to excuse or justify the physical violence involved, but it would also be wrong to exclude from my assessment the fact of the dysfunctional relationship, where both parties were misusing alcohol and drugs. Alcohol and drug misuse was playing a clear role in distorting what might otherwise have been a normally functioning household. Moreover, that particular relationship is now at an end. Mr Manebona will not return to that relationship, he said, and I accept that evidence. Indeed, Ms W is herself in jail as at the time of my decision and so the relationship cannot resume as a one-to-one relationship at the present time.
Nevertheless, Mr Manebona may have another intimate relationship with a female partner. It is that partner who will run the risk of domestic violence. It is not easy to assess the risk. Dr Kwok gave evidence, which I believe I should accept, that there is a moderate risk of Mr Manebona committing further domestic violence offences without treatment.[25] I accept her view as an appropriate measure of the risk. I note that Dr Kwok refers in her report to Mr Manebona having a new partner as the present time,[26] although this is denied in Mr Manebona’s most recent statement.[27] Given his incarceration and subsequent detention for over three years now, it is not meaningful, in my opinion to speak of a present- day partner and it was not something explored fully in evidence. But I am prepared to proceed on the basis that there may well be a person that Mr Manebona has in mind as a prospective partner (other than Ms W).
[25] Ex A7, 13.
[26] Ibid, 12.
[27] Ex A2, 16 [43].
There are stabilising features in Mr Manebona’s situation, however. First, Mr Manebona would have guaranteed employment with his former company, A1 Pallet, on release.[28] That is an important matter. Secondly, whilst there has been some resort to alcohol in detention (in the use of homebrew) there has not been in my opinion a sustained abuse of alcohol over the three-and-a-half years in detention. Accordingly, there is a considerable period where sobriety has been predominantly maintained. There have also been some occasions where it has been suspected that Mr Manebona was knowingly in possession of suboxone strips, ‘suboxone’ being a prescription medication used to assist in the treatment of those recovering from drug addiction. But this history is not pronounced given the lengthy time Mr Manebona has spent in detention and I do not infer from it any serious ongoing drug dependence. That is a matter to be weighed. Nonetheless, resort to alcohol or drugs to cope with stress remains a matter of some concern, as Dr Kwok conceded in cross-examination.
[28] Ex A1, 19.
I do not regard the minor altercations and poor interactions with detention officers put to Mr Manebona in cross-examination as being of particular relevance in my risk assessment. I do not regard the damage done to the kitchen sandwich press and power point as raising concerns either. I accept Mr Manebona’s denial that he was responsible for fashioning a weapon from nail scissors found in the room he had formerly occupied.[29]
[29] Ex R2, 44, 46.
Mr Manebona has a very strong incentive to stay away from alcohol and drugs. I refer here to his children’s ongoing need for care. Having heard his evidence, I do not believe Mr Manebona is simply concerned to preserve his right to live in a country which has a superior standard of living to that of the Solomon Islands. I do believe that he is principally motivated by the desire to participate meaningfully in the lives of his children: that is something I accept having heard him give evidence.
Mr Manebona has spent some three-and-a-half years in immigration detention and has failed twice before to persuade this Tribunal to revoke the cancellation of his visa. He well understands that any return to violent offending, or any other offending for that matter, will only see him return to jail with the inevitable consequence of a cancellation of his visa status in Australia, a return to detention, and an almost certain deportation in due course. That much is certainly not lost on him. He understands what is at stake; and I have concluded that he understands the connection between drug/alcohol misuse and his violent offending. I believe that this is an important aspect of the risk measurement task. That said, I also accept that there has been very serious offending in the past, and that a domestic violence order was not a sufficient deterrent.
Accordingly, I accept Dr Kwok’s assessment in this regard as reliable; namely, that Mr Manebona’s risk profile for future family-violence offending is ‘moderate’ at the present time in the absence of further treatment.
I note further that this aspect of risk is to be weighed ‘cumulatively’ with the nature of the harm that Mr Manebona would inflict on the assumption that he reoffended, and I have already said that this is very serious in my opinion.
Paragraph 8.2 of the Direction directs particular focus on family violence. I note that by sub- paragraph (1), the Government has serious concerns about allowing non-citizens who have engaged in family violence the privilege of remaining in Australia. These concerns are said to be proportionate to the seriousness of the family violence engaged in by the non-citizen (and reference is made in the Direction to subparagraph (3)). I note again that family violence is not confined to proven offences but takes into account conduct that I am satisfied has occurred even though no criminal charges have been laid. I have already referred to the fact that there must have been some frequency in the family violence. I have also referred to the fact that there has been a trend of increasing seriousness because the most recent violence was of an extreme character. Mr Manebona accepts overall responsibility for the family violence, although he maintained before me – but not in a defiant or deceitful way – that he was not guilty of everything that the Court found had occurred during the assault. I bear in mind that he was drunk at the time and cannot help but have a poor recollection of exactly what transpired. He accepted, however, the wrongness of his violence on that day. There has been some effort by him to address alcohol and drug misuse, and this was referred to positively in the sentencing remarks, I note. As I say, I believe Mr Manebona appreciates that his behaviour was morally culpable. I am not convinced, however, that he necessarily fully understands the impact of the violence upon his victim or the psychological impact of the violence upon the children as witnesses. This remains an area of development for him.
Paragraph 8.3 requires me to consider the strength, nature, and duration of ties to Australia. Subparagraph (1) requires me to consider the impact of my decision on the non-citizen’s immediate family members in Australia. I have had regard here to the impact on Mr Manebona’s mother. This impact manifests itself in two ways. First, there will be the impact on her personally from an emotional perspective. She is concerned that she will not be able to assist him financially if he returns to the Solomon Islands. I accept the stress she experiences in this regard. I also accept that she has a close and loving relationship with him. Secondly, there is the fact that at the present time, Mr Manebona’s mother looks after her grandchildren, J and P, due to the incarceration of Ms W, their mother. She shares that responsibility with her husband and with her daughter, Margaret, who has two children of her own. She refers to her situation as ‘getting very tough’[30] and she also refers to the very practical consideration that she is having to divert her retirement savings to their upbringing. She is also working long hours for her age, and her husband, who is 67, is having difficulty looking after the children (although he is, in effect, compelled to when his wife is at work). She is justified in her conclusion that she and her husband need Mr Manebona to alleviate the pressure and help them financially, practically, and emotionally with the children.[31] I also take into account her legitimate expectation that her son will assist her if he can return to the community and work.
[30] Ibid, 2.
[31] Ibid, 5. See also the letter of support provided by Dr Julia Long (Ex A3).
I must take into account the best interests of minor children in Australia: see paragraph 8.4 of the Direction. The interests of Mr Manebona’s biological children loom large in this case. I am satisfied from the evidence given by Mr Manebona’s sister, Ms Margaret Manebona, and from his mother’s evidence, that the impact of Mr Manebona’s deportation upon the two children will be very considerable. On the evidence before me, Ms W is presently in jail, and I am not aware of the likely release date. In my opinion, the children will suffer grievously from a lack of any basic connection with their father. Their interests do count substantially since they are in the very unusual position of having both biological parents absent at the present time in different forms of detention. I accept that removal of Mr Manebona to the Solomon Islands would pose very significant difficulties for them in terms of maintaining a one-on-one in-person relationship.
I expressly note that I am required to weigh the fact that the children have been exposed to family violence perpetrated by Mr Manebona, and that is a serious matter because psychological harm can follow from such events.[32]
[32] See paragraph 8.4(4)(g) of the Direction.
Paragraph 8.5 requires me to weigh the expectations of the Australian community. I acknowledge what appears in subparagraph (1); namely, that the Australian community expects non-citizens to obey Australian laws and that a serious breach of that expectation means that the Australian community ‘as a norm’ ‒ albeit not as inflexible rule ‒ expects the Government not to allow the non-citizen to remain in Australia. Subparagraph (2) then goes on to state that, in addition, a visa cancellation may be appropriate because of the nature of character concerns or of the offending. I note that acts of family violence do give rise to serious character concerns as does the commission of serious crimes against a woman.
Subparagraph (3) makes it clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the community. Subparagraph (4) provides that I must not seek to assess the community’s expectations in a particular case for myself but should take the expectations as they are articulated in the Direction. These expectations count substantially against Mr Manebona.
Section 9 concerns so-called ‘other’ considerations. There is a non-exhaustive list of three such considerations. I am not minded to attach weight to the consequences of Mr Manebona returning to the Solomon Islands and facing re-establishment difficulties there. I accept that he would face difficulties there, but he is generally able-bodied and fit with a good employment record. I must also have regard to what is generally available to other citizens of that country, and in my opinion that diminishes entirely the significance to be attached to the impediments that he would face.
The list of other considerations is expressed to be non-exhaustive. I think I ought also to take into account Ms W’s stated views in respect of Mr Manebona’s deportation. She is concerned that her children will miss out on contact with their father, and it is also clear that she still regards him with some favour despite the severe violence in the relationship.[33] The relationship is clearly at an end; but that does not mean that Ms W does not have a legitimate interest in seeing her former partner play a constructive role in her children’s lives. Nevertheless, the weight I attach to her interests in this regard (as opposed to those of her children) is very minor.
[33] Ex A1, 129, 132.
Weighing the considerations
I turn now to weighing the considerations arising under the Direction. This is a very difficult task. The Direction speaks strongly at multiple points against violence, and family violence in particular, and in favour of the protection of the community. That much is certainly plain. The Direction explicitly makes the protection of the Australian community the highest priority of the Australian Government. This priority is to be given greater weight generally than other primary considerations. The inherent nature of certain conduct, such as family violence, is so serious that strong countervailing considerations may be insufficient to justify 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: see, for example, paragraph 5.2(8).
But the weighing exercise does require me to address carefully the precise circumstances of the individual case. In this regard, I believe that the interests of the minor children do count substantially. The children’s mother is now incarcerated; the evidence before me suggests she supports Mr Manebona remaining in Australia to assist in their care; and I believe that although the children witnessed his considerable violence to their mother, Mr Manebona can make a substantial contribution, both financially and emotionally, to their immediate needs and to their ongoing well-being and development. Their interests must be weighed with particular care in circumstances where Mr Manebona’s mother and her husband are experiencing stress in having to raise the children (although I accept Ms Margaret Manebona also assists with their care, although she is also a mother with her own responsibilities).

On other occasions, I have made the observation, which I repeat it here, that children are very often the innocent victims of the dysfunction that arises in a family through the misconduct of one or other parent (or both of them). I am very conscious that these children do run the risk of growing up without appropriate parenting from biological parents (whatever love and support they may receive from within their extended family, which I do not discount). That is a very important factor.
There are of course other factors to be weighed, and I have referred to these in the course of these reasons. But my evaluation has inevitably come to focus principally (although not exclusively) on two opposed facets; namely, (1) the extremely serious nature of Mr Manebona’s family violence conduct and the fact that his risk of repeating that conduct is at the present time ‘moderate’ according to my assessment, and (2) the very real need of his young children for his emotional and practical financial support.
I acknowledge that the Direction does speak very strongly, indeed, against Mr Manebona’s criminal violence and that the protection of the Australian community is generally to be given greater weight than other primary considerations. Nevertheless, the Direction is never to be applied mechanically and without a very full consideration of the individual circumstances of each case. This is one case where the interests of minor children are very important, indeed, given the overall circumstances of the family.
FINAL CONCLUSION AND FORMAL DECISION
I have decided, after applying the Direction, that the correct or preferable decision on the evidence before me favours revocation of the cancellation decision. I have also decided that I am satisfied that ‘another reason’ exists for the cancellation decision to be revoked: see section 501CA(4)(b)(ii) of the Act. My formal decision is, therefore, to set aside the decision under review and to substitute a decision that the cancellation of Mr Manebona’s visa be revoked.
I certify that the preceding fifty-eight (58)
paragraphs are a true copy of the reasons
for the decision herein of Senior Member
Dr N A Manetta
[sgnd]
……………………………..
Associate
Dated: 18 September 2024
Date of hearing:  12, 13 & 24 August 2024
Advocate for the Applicant:      Self-represented
Advocate for the Respondent:  Emma Letcher-Boldt,
Clayton Utz