Manebona and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Manebona and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4680 (17 December 2021)
Division:GENERAL DIVISION
File Number(s):2021/7039
Re:John Manebona
APPLICANT

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

DECISION
Tribunal:Member R Maguire
Date:17 December 2021
Place:Brisbane

The decision under review is affirmed.
……………………[SGD]…………………………
Member R Maguire

CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class BC Subclass 100 Spouse visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – breaches of domestic violence orders – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Criminal Code Act 1899 (Qld)
Queensland Domestic and Family Violence Protection Act 2012 (Qld)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
R v HBZ [2020] QCA 73
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member R Maguire
17 December 2021
INTRODUCTION AND BACKGROUND

By application dated 30 September 2021 the Applicant seeks the review of a decision of a delegate of the Minister (“the Respondent”) dated 29 September 2021 made pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the decision made under s 501(3A) of the Act to cancel the Applicant’s Class BC Subclass 100 Spouse visa (“the visa”).
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg 2.52), and the decision-maker determines that the Applicant passes the “character test”, or, as provided under s 501CA(4)(b), there is another reason why the mandatory cancellation should be revoked. The Minister accepted that the Applicant had made the necessary representations within the prescribed period.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under s 501(6)(a) of the Act the person has a substantial criminal record as defined by s 501(7). Relevantly, s 501(7) states:
(7)For the purposes of the character test, a person has a substantial criminal record if:
...
(c) the person has been sentenced to a term of imprisonment of 12 months or more;...
The term “imprisonment” is defined to include any form of punitive detention in a facility or institution: s 501(12) of the Act.
The Applicant is a 35-year-old citizen of the Solomon Islands. The Applicant was born in the Solomon Islands in 1986 and first entered Australia when he was 14 years old on 11 September 2001. He departed Australia on 29 August 2002. He returned to Australia on 9 January 2007 when he was 20 years old and has remained in Australia ever since.[1]
[1] Exhibit G1, Section 501 G-Documents, G2, page 66 and page 99.
On 9 December 2020, the Applicant was sentenced in the District Court of Queensland to:
·two years’ imprisonment to be partially suspended for a period of two years after serving three months imprisonment for one count of Choking Suffocation Strangulation Domestic Relationship – Domestic Violence Offence;
·18 months’ imprisonment, concurrent, to be partially suspended for a period of two years after serving three months imprisonment for one count of Assaults Occasioning Bodily Harm – Domestic Violence Offence;
·three months imprisonment, concurrent for one count of Common Assault – Domestic Violence Offence.[2]
[2] Exhibit G1, Section 501 G-Documents, G2, page 35.
On 10 February 2021, whilst the Applicant was serving a term of imprisonment (that is, in actual criminal custody) the Respondent, pursuant to s 501(3A) of the Act, decided to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test (substantial criminal record) on the basis that s 501(7)(c) was satisfied, i.e., that he had been sentenced to 12 months or more imprisonment. Notice of this decision was given by hand to the Applicant on 10 February 2021.[3]
[3] Exhibit G1, Section 501 G-Documents, G2, pages 100 -105.
In accordance with reg 2.52(2)(b) the Applicant was invited in accordance with s 501CA(3)(b) of the Act to make representations to the Minister about revoking the cancellation decision within 28 days after he had received the notice. The Applicant made representations to the Minister on 4 March 2021 within the period and in the manner specified.[4]
[4] Exhibit G1, Section 501 G-Documents, G2, pages 61-79.
On 29 September 2021, the Respondent, acting pursuant to s 501CA(4) of the Act, decided not to revoke the visa cancellation decision made under s 501(3A) of the Act,[5] and the Applicant made the present application to this Tribunal for a review of that decision.[6] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.
[5] Exhibit G1, Section 501 G-Documents, G2, page 15-33.
[6] Exhibit G1, Section 501 G-Documents, G1, pages 1-7.
The hearing of the instant application took place on 9 December 2021. The Applicant was self-represented, and the Respondent was represented by Ms Letcher-Boldt of Clayton Utz. The Tribunal received oral evidence from the Applicant, who was in the migration zone on shore in Australia. The Tribunal also received written and oral evidence from the witnesses as below. The complete suite of written material forming the exhibit record is further particularised in the Exhibit Annexure attached hereto and marked “A”.
By operation of s 500(6L) of the Act, when an application is made to the Tribunal for a review of a decision under s 501CA(4) of the Act not to revoke a decision to cancel a visa, and the decision relates to a person in the migration zone, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review in accordance with 501G(1), the Tribunal is taken at the end of that period to have made a decision under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) to affirm the decision under review. At the hearing, it was agreed that for the purposes of this review, and s 500(6L)(c), the 84th day is 22 December 2021. It was therefore open to the Tribunal to make a decision prior to midnight, on 22 December 2021.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
The Applicant has made the representations required by s 501CA(4)(a) of the Act.
As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[7]
…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[8]
[7] [2018] FCAFC 151.
[8] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337 at [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66;(2017) 250 FCR 548 at [31] (Collier J, with whom Logan and Murphy JJ agreed).
As provided in s 501CA(4)(b) of the Act, there are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[9] The Tribunal will address each of these grounds in turn.
[9] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. In addition, and as an alternative, s 501(7)(d) provides that a person will have a substantial criminal record if the person “has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.” Section 501(7A) provides that for the purposes of the character test, if a person has been sentenced to two or more terms of imprisonment to be served concurrently (whether in whole or in part) the whole of each term is to be counted in working out the total terms.
Evidence before the Tribunal,[10] establishes that the Applicant was sentenced to two years’ imprisonment with a non-parole period of three months, in the Queensland District Court on 9 December 2020.
[10] Exhibit G1, G-Documents, G2, page 35.
As the custodial term imposed was “a term of imprisonment of 12 months or more”, the Applicant does not pass the character test by virtue of his “substantial criminal record” as defined in s 501(7)(c) of the Act. The Tribunal therefore finds that the Applicant does not pass the character test pursuant to s 501(6)(a) of the Act and that the Applicant therefore cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
The remaining question therefore is found in s 501CA(4)(b)(ii), namely whether there is another reason why the original decision should be revoked.
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
Ministerial Direction No. 90
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 90”) has application.[11] The Direction provides guidance for decision-makers on how to exercise the discretion in s 501CA(4) of the Act.
[11] On 1 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
Relevantly, the Direction states that:[12]
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
[12] The Direction, paragraph 6.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 7(1) of the Direction provides that in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 7(2) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1)       protection of the Australian community from criminal or other serious conduct;
(2)       whether the conduct engaged in constituted family violence;
(3)       the best interests of minor children in Australia;
(4)       expectations of the Australian community.
Paragraph 9 of the Directions sets out four Other Considerations which must be taken into account. These considerations are:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia;
(ii)impact on Australian business interests
The Tribunal notes and emphasises the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[13]
Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[13] [2018] FCA 594 at [23].
The Tribunal now turns to addressing these considerations.
EVIDENCE BEFORE THE TRIBUNAL
Following the mandatory cancellation of his visa, the Applicant made a Request for Revocation on 4 March 2021.[14] The Applicant provided hand-written reasons for revocation as follows:
I have lived my adult life in Australia apart from a short period looking after my grandparents before they died in the Solomon Islands. Although my father is there with his new & extended family, I am estranged from them (having chosen to leave for Australia to be with my mother) and not welcome back (because of lingering hurt and the shame and bad impression my return in these circumstances conveys). Most importantly, however, is that all my family and supporters are Australian & permanently resident here. My mother, sister (+ her family including my niece, [A]), brother, former partner & our children are here and we rely on each other for support and I must work & provide financially for them. The children are all missing me from their lives because of my imprisonment and this will be made worse if I am deported as I will be unable to care or provide for them and visitation most unlikely. The challenges with my former partner are resolved as I was wrong and my punishment has made me know that we must stay apart save for matters concerning our children and my sister is facilitating arrangements so there will be no further problems in this regard and I do not wish to return to prison.
[14] Exhibit G1, Section 501 G documents, G2 at page 61.
Personal Circumstances Form
In his Personal Circumstances Form[15] dated 28 March 2021, the Applicant acknowledged his Solomon Islands citizenship and stated that he first arrived in Australia in 2001 with his sister. He gave his relationship status as separated. He nominated two daughters who shall be referred to as “J”, currently aged six, and “P” currently aged four both of whom were Australian citizens as his only minor children. Both children were residing at an address in Inala with their mother, who shall be referred to as “W”. The Applicant stated that he and W met 10 years ago and were in a relationship for three years. He said although they are separated, “we do care for each other and our children, and we will do our best to support each other and our children”. He said he needed to remain in Australia to support them financially and emotionally.
[15] Exhibit G1, Section 501 G documents, G2 pages 65 - 79.
He said he would “not initially” be living with the children on return to the community but expressed the hope that he would spend increasingly more time with them on a shared care basis. The Applicant said that “before difficulties with their mother” his relationship with J and P was very good. He said he very much regretted what happened between himself and W, and said the children “largely” were not “privy to that. The children would live with his sister when not with their mother. They stay with his sister most weekends and he could have telephone contact with them. He said “we have decided it is best not to subject them to a prison visit.”

He said that notwithstanding his imprisonment, his relationship with his children was very close, and they would be severely impacted adversely by his inability to personally care and provide for them. He said that in the Solomon Islands he would not be able to generate the income necessary to properly look after them in Australia, and he would not be able to care for them and have them visit or live with him. He said he was the main financial contributor to the necessary family income.
The Applicant also nominated his sister’s 11 year old daughter, who shall be referred to as “A”, and said that he looked after her before and after work and when asked by his sister. He said he would return to live with his sister and A when released if he is permitted to remain in Australia. He said A already missed him and would be adversely affected if he is removed from Australia.
The Applicant provided family details listing his mother, sister, and brother all of whom were Australian citizens resident in Australia, and his father as a Solomon Island citizen who is resident in the Solomon Islands. He had only the one niece in Australia. He listed six uncles and aunts, and over 20 nieces and nephews as resident in the Solomon Islands. He said his father has remarried and has a large extended family in the Solomon Islands, but he is not close to them, and cannot expect or rely on their support. He said he would be ashamed to return there after being in prison and would not be welcome as they have a bad impression of what he has done and because he is not “married to a Solomon Islands lady with children there”.
At item 10 of the Personal Circumstances Form, the Applicant commented on his criminal history and risk of reoffending as follows:
Although I pleaded guilty to the offences as charged the circumstances were not so one-sided. My former partner and I had troubles for some years especially when alcohol was involved. Although we argued and had this terrible incident which I very much regret we still care for one another and love and want the best for our children, who will suffer the most if I am deported. I have shown whilst on bail for a year that I can and will obey court orders, refrain from domestic violence, and do the right thing with respect to my former partner and our children.
…
Yes I completed a course on avoiding domestic violence and will send a copy of the certificate. I am willing to do more with respect to avoiding abuse of alcohol and self-development to do much better in future, but these courses are not offered at [Brisbane Correctional Centre].
The Applicant said that he had not received any prior warnings regarding his visa and said that after his experiences in prison and otherwise with respect to his offence he was certain that he would not reoffend in the future. The Applicant said there is a five year Domestic Violence Order in place. He was unsure if there were any further charges against him to be dealt with.
The Applicant said he had studied to year 11 at North Rockhampton High School, and described employment from 2007 to 2011 as a welder, from 2012 to 2013 “pushing trolleys” for Woolworths and Kmart, in 2015 as a volunteer for Fishes and Loaves, and from 2016 to 2020 making pallets.
The Applicant said that he did not have any diagnosed medical or psychological conditions and was not currently being treated by any doctor or health professional. He expressed no concerns about what would happen to him if he were to return to his country of citizenship, and he faced no criminal charges there. Returning to the Solomon Islands would mean that he would leave his mother, sister, brother, and children behind in Australia, and that will be very hard and painful for him. He said he had nothing in the Solomon Islands.
Statutory declaration of W
The Tribunal has had regard for the statutory declaration,[16] dated 16 January 2021 made by W and the attached signed letter of the same date. W confirmed that she and the Applicant had been in a relationship since 7 June 2014. She said that the then five year old child J loved her father with whom she had a good relationship and she missed him dearly, and was very stressed, unsettled and confused all the time, asking and crying for him. She said J was not sleeping or eating very well at night due to not being able to see her father or visiting.
[16] Exhibit G1, Section 501 G documents, G2 pages 83 – 84.
W also said that the then three year old daughter P was also asking and crying for her father whom she loved very much. She said that having her daughters miss their father was unfair to both of them and unsettling and painful to witness. She said she did not want her daughters missing out on their father, and she did not want him missing out on his daughters. She said she believed the Applicant was a very good person and important role model and father figure for the girls, and that he loved and adored them very much. She said that for the health and well-being of her daughters she hoped and prayed they would not lose their father from their lives, as they all loved and missed him dearly.
Letter from Joyce Sheedy
The Tribunal has also had regard for the signed letter,[17] dated 26 January 2021 from Joyce Sheedy who said she was the Applicant’s mother. She said she had raised all of her children to be strong Christians. She said she did not want her son and family separated “due to one silly mistake”. She said the health and well-being of her grandchildren was a major concern and worry. She also said that she loved her son very much and needed him with her and his family in Australia, and she was incredibly stressed and not eating or sleeping. The thought of losing her son from their lives would destroy her family, and this breaks her heart.
[17] Exhibit G1, Section 501 G documents, G2 page 85.
Letters from Mr Peter Grabar
The Tribunal has also had regard for a signed letter,[18] dated 8 January 2021 from Mr Peter Grabar of JG50 Pty Ltd who stated that the Applicant was working for that company and was a “reliable skilled hard worker”. He described the Applicant as a “valuable employee with the experience needed to keep the work flowing smoothly”. He said the Applicant was a “good reliable worker and is needed at work.”
[18] Exhibit G1, Section 501 G documents, G2 page 91.
The Tribunal has also had regard for a further signed letter,[19] dated 30 November 2021 addressed to “whom it may concern” from Mr Grabar. Whilst continuing to describe the Applicant as a “reliable skilled hard worker” this letter departed from the work commencement date provided in the previous letter – May 2019 – and said that the Applicant started working with the company on 19 February 2018. The letter was otherwise in very similar terms to the early one other than this one offered the Applicant a “guaranteed position as soon as he is able to present for work.”
[19] Exhibit A10.
Letter from Mr Royce Peter Lacey
The Tribunal has also had regard for a signed letter,[20] dated 27 January 2021 from Mr Royce Peter Lacey, who stated he was the grandfather of the Applicant’s niece, who had known the Applicant for 10 years., He stated the Applicant was like a son and was very much a huge part of the family. He expressed concern at the prospect of the Applicant’s deportation and the effect this would have on the Applicant’s family, and Mr Lacey’s own family. He expressed support for the Applicant, and confidence that he would have a job waiting for him when required. He described the Applicant as courteous and well-mannered and said that he would trust him around his family without a second thought.
[20] Exhibit G1, Section 501 G documents, G2 page 92.
Letter from Mr Mark Leo
The Tribunal has also had regard for an unsigned typed letter,[21] dated 9 February 2021 from Mr Mark Leo. Mr Leo said that he had known the Applicant since he started working at JG50 Pty Ltd in May 2016. He had trained him as a pallet maker and worked closely with him for a few weeks. He found him to be a jovial person and hard-working. He always found something to laugh about and made the day fun and pleasant. The Applicant always spoke of his baby girls and gave updates on the things that they said and did.
[21] Exhibit G1, Section 501 G documents, G2 page 93.
Letter from Joanne Fourie
The Tribunal has also had regard for the signed letter,[22] from Joanne Fourie dated 11 February 2021 who also worked at JG50 Pty Ltd, and said she had many conversations with the Applicant at work. She said he had a wonderful sense of humour and took his job very seriously. She knew him to be a hard worker, and always pleasant. She said he had often spoken of his two daughters who loved him very much, and that she had witnessed the Applicant with his daughters when his partner had dropped him at work. She said he had a wonderful love and relationship with his daughters.
[22] Exhibit G1, Section 501 G documents, G2 page 94.
Letter from Jacqueline A Tipene
The Tribunal has also had regard for an unsigned letter[23] dated 25 October 2019 from Jacqueline A Tipene who had been a neighbour of the Applicant and his then partner, and had socialised with them both. She described the Applicant as a friendly helpful kind and giving man. She did not know him to be abusive, violent or physically abusive. She said the Applicant was a decent man who deserves a second chance. She said his daughters would be lost without him.
Further statement of Applicant
[23] Exhibit G1, Section 501 G documents, G2 page 95.
The Applicant provided a signed letter dated 14 May 2021[24] in response to a Natural Justice Letter from the Department. An extract of this letter is as follows:
I firstly wanted to start by apologising for this horrible accident in my life. This is not something I ever thought I would do or think about doing, or will ever do in the future. I accept that my offending is very serious and I do not condone my behaviour or actions. Please know I am extremely remorseful for this happening to my partner.
I accept I have had some minor drug use in the past along with some other charges of mishandling shop goods and wilful damage. Since having kids I have stopped taking any drugs as I know these are not good actions for my children to be around or the type of behaviour are father needs to show to the children. I love my kids so much and I need to be there for them as they grow up and provide the love and care they need.
I just want to comment on the sentencing remarks in the transcript dated 24th February 2021. The Judge mentions I did not plead guilty early, but this was due to my duty lawyer advising me not to. After discussing this with my lawyer I was only following his advice.
I now want to speak about the Domestic Violence charge against me. I accept and acknowledge that my actions are very serious. I am very disappointed in myself and still in disbelief that this is happening. I reacted very badly and dangerously in a situation when we were both under the influence of alcohol. While I do accept responsibility for my actions, I wanted to let you know the circumstances leading to the offending that day. I am not minimising, justifying or passing the blame for my actions however just stating that I feel and believe I was pushed and provoked to a point where my decision-making was in anger and that isn’t good under the influence of alcohol. The statement from my neighbour also reflects the day and the situation building up to the point where I made the very poor decision to do what I did.
Again I am not trying to pass blame, just trying to explain what caused me to react in that way.
I am willing and wanting to do any rehabilitative courses available to me and be a better man and father to my children. I have already completed a drug and alcohol course before I was sentenced. I have a good relationship with my ex-partner and we have been able to work through the past year while a DVO was in place to see my kids. Our commitment between me and my ex-partner is to be there for our children.
[24] Exhibit G1, Section 501 G documents, G2 page 96
Letters from Suzanne Utai
The Tribunal has also had regard for a signed letter,[25] dated 18 July 2021 from Suzanne Utai, a Mental Health Practitioner from Grow Support Incorporated. Ms Utai said she was a Mental Health Practitioner providing Psychological Therapies, and had received a referral from the Applicant’s doctor. She said the Applicant had attended therapy articulating his desire to further rectify and gain an understanding of how to learn strategies in assisting him to mend his relationship with his partner/mother of his children. The Applicant had explained the charges he had against him but stated he did not agree with the charges. He had been referred in 2019 and attended sessions throughout 2020 during which he expressed his love for his children and a belief that he and his partner could overcome the differences with help. He was taking steps to develop a plan so he and his partner could be better parents together and have a better relationship.
[25] Exhibit G1, Section 501 G documents, G2 pages 97-98.
Ms Utai opined that the absence of his children was having an impact on his stress levels, and he was being “denied quality time with his children”. Although he disagreed with the charges, he was open to learning new coping mechanisms. He was also open to change to ensure his daughters grow up in a safe environment. She went on to state:
Although John had Domestic Violence charges against him, he has constantly maintained charges were over exaggerated. He knows domestic violence is not appropriate and came to see me seeking better coping skills to manage his own behaviour.
Ms Utai said the Applicant had never presented abusive or violent and had always been pleasant and courteous to staff and clinicians.
Ms Utai provided a further letter[26] to the Tribunal dated 25 November 2021 in which she stated that the Applicant had asked her to elaborate on the sessions she completed with him prior to his detention. She said he had undertaken 19 sessions with her since November 2019, the last one being in December 2020. As a psychotherapist she had used a combination of interventions focusing on Psycho-education, Cognitive behavioural therapeutic strategies, and Interpersonal Therapy. She also incorporated skills training in problem-solving skills, anger management, stress management and communication training.
[26] Exhibit A9.
She said that during the sessions he was able to accept his responsibility in his relationship and recognise healthy versus unhealthy relationships, use strategies to control his anger, understand where his downfall was and working on better communication skills to enhance his relationship rather than break it down further.
She recalled that the Applicant was trying to change negative behaviours and had gained an insight into the effects of his behaviour on his children and was very remorseful of the impact it would have caused his children. He was learning new ways of dealing with stressful situations. She believed he was wanting to change and wanting to better himself as a better father and partner in his family.
Further Evidence of the Applicant
The Tribunal has had regard for the Certificate of Attendance in the name of the Applicant issued by the Inala Alcohol & Drugs Service “In recognition of completion of the Early Recovery Substance Use Program” dated 27 September 2021 and the associated letters of attendance.[27]
[27] Exhibit A1.
The Tribunal has had regard to an email sent from the Applicant[28] to the Tribunal dated 25 October 2021 in which he again expressed remorse and acknowledge the serious nature of his offending and its impact on his children. He said his two young children had been without a father for two years, and he hoped to be a good role model for them.
[28] Exhibit A2.
The Tribunal has also had regard for the unsigned letter[29] from the Living Without Violence Program Team of Anglicare to the Applicant dated 2 November 2021 confirming that the Applicant had contacted Anglicare on that date and expressed an interest in participating in the Living Without Violence group program for men. The letter stated the Applicant’s name had been placed on a waiting list for interview with a view to possibly acceptance in a future program.
[29] Exhibit A3.
The Tribunal has also had regard for a signed Apology letter[30] from the Applicant to W dated 12 October 2021. The letter apologised for his actions, and acknowledged his “despicable” act. He expressed the view he would never let himself do anyone harm ever again. He said it was not his intention to cause W “so much pain”. He said he was ashamed by his behaviour and accepted full responsibility for his actions and that he was the only one to blame for those actions.
[30] Exhibit A4.
The Tribunal has also had regard for a signed Apology letter[31] from the Applicant addressed to “whom it may concern” and dated 13 October 2021. In this letter, the Applicant apologised to his family, the Australian Community, the “Courts Justice system” and again to the victim (singular) of his offending. To the victim, he again apologised for “the disgusting acts that I committed” and expressed regret. He also apologised to his family for disappointing them.
[31] Exhibit A5.
The Applicant also apologised to his children saying
“I am sorry for what you had to experience witnessing what I have done. I know that this affected you both and hurt you. I am so sorry and I love you both. My hope would be to be a good role model for you and show you that your father can recover and change his past ways”.
In apologising to the Australian Community and the Australian Justice system, the Applicant said that he understood that living in Australia is a privilege, he was aware and regretful of his offending and the serious nature of his behaviour, and deeply regretted his family violence behaviour and its impact on his children who had been without a father for two years. He expressed the hope that “you can believe and trust that my rehabilitation has created a long-term positive change.”
The Tribunal has also had regard for a further signed and dated statement,[32] addressed to the AAT by the Applicant, submitting further evidence and letters. He said “I really do have nothing for me in the Solomon Islands”. He expressed the view that his job and loved ones were within Australia, and that he would not recover if sent back to his home country. He said there was no chance of reconciliation with his family in the Solomon Islands. He said the standard of living was very poor as opposed to Australia. He had taken every chance to do courses whilst in detention, and seen a psychologist regularly. It was very important to him to stay in Australia with his children, and to support them emotionally and financially. He expressed the desire to be “a good member of the community”.
[32] Exhibit A6.
The Tribunal has also had regard for a further signed undated statement,[33] by the Applicant addressed to “whom it may concern”. He repeated his expressions of regret and acknowledgement of the serious nature of his family violence behaviour and its impact on his children. He reiterated his desire to remain in Australia and be a good role model for his children.
[33] Exhibit A7.
The Tribunal has also had regard for the International Health and Medical Services (“IHMS”) records including a Health Induction Assessment[34] dated 8 March 2021 which disclosed no alcohol or drug use and made no health recommendations and listed him as a fit and healthy young man. It also recorded: “Social alcohol use, did not elaborate, does not sound significant amounts”.
[34] Exhibit A8.
A further progress note from a consultation on 11 March 2021 stated:
“client denied past Hx of Drug and Alcohol but did confirm a charge in relation to domestic violence which he has pleaded guilty too (sic), to avoid jail time; this has now resulted in detention and visa cancellation. Client described a Hx of abuse from his female partner in the context of her alcohol misuse and described behavioural violence.

The Tribunal notes that the records indicate that the Applicant failed to attend mental health clinic appointments just as often as he attended.
The Applicant also provided to the Tribunal a letter,[35] from the State Penalties Enforcement Registry (SPER) of the Queensland Government agreeing to defer payments of his debts until 31 December 2021.
[35] Exhibit A11.
The Applicant’s criminal history is informed by the following documents:
(a)Australian Criminal Intelligence Commission Check Results Report dated 26 March 2021;[36]
(b)Sentencing remarks of Judge Smith in the District Court of Queensland on 9 December 2020;[37]
(c)Verdict and Judgment Record of the District Court of Queensland dated 9 December 2020;[38] and
(d)Sentencing remarks of Magistrate Shearer in the Queensland Magistrates Court at Richlands on 24 February 2021.[39]
[36]    Exhibit G1, G Documents, G2, pages 34-36.
[37]    Exhibit G1, G Documents, G2, pages 37-40.
[38]    Exhibit G1, G Documents, G2, page 41.
[39]    Exhibit G1, G Documents, G2, pages 42-44.
The Tribunal notes from the Australian Criminal Intelligence Commission Check Results Report that the list of offences committed by the Applicant extends to three pages,[40] and covers a period of nearly ten years.
[40] Exhibit G1, G Documents, G2, pages 34-36.
Evidence at Hearing
The hearing took place via Microsoft Teams on Thursday 9 December 2021. The Applicant was self-represented, and the Respondent was represented by Ms Emma Letcher-Boldt of Clayton Utz, Sydney.
The Applicant conceded the accuracy of the history alleged against him in the Respondent’s Statement of Facts Issues and Contentions (SFIC) and made no assertion that he passed the character test.[41]
[41] Transcript, , page 6, lines 20 to 35.
Cross-Examination
Under cross-examination by the Applicant confirmed the offences against W in 2019 at their home in Inala. They had been together over a period of years but had separated for a year during that time. The offences took place in the presence of his children who were then aged 5 or 6, and 4 respectively. He said he did not see any injuries to W and did not know she had suffered any until it was mentioned in the paperwork when he went to court.[42]
[42] Transcript, page 7 line 41 to page 8 line 6.
He confirmed he had not agreed with police when he was interviewed that he had squeezed W’s neck, but now agreed that he had. He confirmed that his conduct breached a DVO which was made because of his prior conduct. He said this DVO had been put in place because of an argument between him and W. In describing the episode which led to the DVO he did not mention any physical conduct on his part. He was then referred to Exhibit R3, SM4 page 66, which set out the grounds for the DVO as stated by police, and shown it via video. The document described the events of 11 December 2018 which led to a DVO being put into place. He was referred to the fact that he was heavily intoxicated, and there was a physical altercation which resulted in W being on the floor and his grabbing her by the throat. He said he remembered the episode, and agreed that it was quite similar to the offences he committed in 2019, which breached the DVO which he said, required him to be of good behaviour towards W and their children. He agreed that he breached both of those requirements in 2019.[43] The DVO was later varied and broadened on 6 February 2020, and extended until 5 February 2025.[44]
[43] Transcript page 11 lines 11 to 12.
[44] Exhibit R3, Respondent’s Further Summonsed Material, SM4 page 55.
The Applicant was referred to the medical documents he had submitted to the Tribunal as Exhibit A8, and what he had told the IHMS staff He had told them he did not have a history with alcohol and drugs, and told them it was W who had been intoxicated. He blamed a lack of understanding for this and said he was under pressure. He said he had been drinking before he went to prison, but not in prison. He said he took responsibility for his answers, and agreed he did have such a history.[45]
[45] Transcript page 12, lines 5 to 25.
He also told them W was intoxicated at the time of the October 2019 offences, whereas he was also. He confirmed that he had been under the influence of alcohol and angry, and said he still felt that he had been “pushed and provoked”. He said that what he did was wrong, and he was guilty. He did not think he committed the offences because he was angry and under the influence of alcohol. He said he should not blame alcohol; he should blame it on himself.
He agreed that he became aggressive when intoxicated and had been convicted of offences relating to drugs. He said he stopped using illegal drugs after his first daughter was born. He still drinks alcohol, and he last drank alcohol the week before he went to prison on 9 December 2020.
The Applicant was referred to the documents regarding the Early Recovery Substance Use Program at Exhibit A1. He confirmed the program was directed towards alcohol and drug use. He attended between October and December 2019 but continued drinking after he had completed the program until a week before he went to prison in December 2020. There had been no discussion about whether he should cease drinking, but he had been encouraged to stay away from alcohol. After he completed the program he was drinking during the month before he went to prison to relax him after work. He said he drank twice a month before he was imprisoned.
He had completed other courses relating to alcohol and drug use before going to prison. In prison he could not do any courses. Since admission to immigration detention, he had not completed any drug and alcohol courses. He said that if he is returned to the Australian community he might drink occasionally, but not like he had done before.
He said he had completed two courses on anger management and stress management and was seeing a psychologist every fortnight. No completion or attendance certificates were issued in immigration detention. One month after entering detention he started attending courses twice a week.
He had not undertaken any courses that related specifically to domestic violence, but his counsellor and the anger and stress management course had dealt with aspects of domestic violence. He was on a waiting list through Anglicare for a specific domestic violence course referred to at Exhibit A3. He thought the course would go for six months to a year but did not know how often he would have to attend. It would be held in Brisbane where he intended to live.
He was referred to the letter dated 18 July 2021 from Ms Utai, where it was recorded repeatedly that he disagreed with the domestic violence charges and maintained they were over-exaggerated. He said he now acknowledges that he has done wrong and committed very serious offences.
He was also referred to his letter of 14 May 2021, where he spoke of his offending and said he was “pushed and provoked.” He was asked if he still thought that his offending was a “horrible accident” in his life. He said he no longer thought that, but still felt that he was pushed and provoked, but what he did was wrong.
When asked why he felt he was pushed and provoked, he blamed W’s behaviour towards him.[46]
[46] Transcript page 20 lines 35 to 47, page 21, lines 1 to 6.
He acknowledged that his offending had an impact on W and had affected his children who were wondering where their father was. He said it was wrong for children to witness such acts.
The Applicant said that he did not have physical access to his children for the period he was on bail in the community between the date of the offences in October 2019 and the date of his sentencing. He said he had not seen them for between seven and nine months before he went to prison. During that time he had been living with his elder sister, and on two or three occasions his children had been there when he got home from work. Apart from these occasions he had not had contact with them, and they had not visited him whilst he had been in prison or immigration detention. He has no contact with them now because of the DVO and is not allowed to call or FaceTime them.
If returned to the community he said he will go to Legal Aid to assist him to seek contact with his children, who currently live with their mother who is their primary caregiver. He would like to share custody on an alternate weekly basis. He will live with his mother at a suburb in Brisbane if released. This was not near W’s residence.
When asked about his niece A, he could not recall her birthday. He said she is about eleven and going to high school. She lives with his sister, and he last saw her before he went to prison. Neither A nor his sister have come to visit him in prison or immigration detention. He is in touch with his sister weekly or fortnightly and talks to A as well. His sister is his niece’s primary caregiver.
He arrived in Australia on 11 September 2001 at the age of 14. He attended primary school in the Solomon Islands. On 29 August 2002 he returned to the Solomon Island to care for his grandparents and returned to Australia on 9 January 2007. He lived there from the ages of 15 to 20. He did not go to school or work during this period. He just spent time with his grandmother.
He has family members there, his mother’s sister and brother and their children. He said he has three other aunties and one other uncle and their children. His father is also there but he does not have a relationship with him. He has a relationship with his mother’s family. He has not seen his father since he was a baby. He would have support (other than financial support) from his mother’s side of the family if he returned.[47]
[47] Transcript page 27 lines 30 to 35.
Following his return to Australia on 9 January 2007 he committed his first offence in November 2008, and his first criminal offence about two and a half years later.
If he remains in Australia, he plans to return to his former full time job making pallets. He will be living with his mother, who is not working and would care for the children if they are with him. He said he expected that W would allow the children to live with him.
He told the Tribunal that he owed SPER about $1,900 in accumulated fines from his previous offending. It had previously been as high as $5,000 or $6,000.
Evidence of Joyce Sheedy
Mrs Sheedy confirmed the veracity of her statement, and expressed concern for the Applicant’s children. When asked about the Applicant’s “one silly mistake” she said she did not know what happened because she was not there.
Evidence of Peter Grabar
Mr Grabar confirmed the veracity of his statements. Neither party had any questions for him.
Evidence of W
W confirmed the veracity of her statutory declaration of 16 January 2021 and told the Tribunal she said she is no longer the Applicant’s partner, and that their relationship had ended the night of the incident when she was assaulted, and which led to him being imprisoned. They had been living together in an on and off relationship over a period of five years since June 2014.
W expressed support for the Applicant to remain in Australia so that their children can have access to their father. She expressed concern for her children’s mental health and said that the older one remembers him a lot more than the younger one and asks for him and wants to speak to him. Her younger girl does not really remember her father much. It has affected the older one a lot more.
She said that she and the Applicant will not be living together if he is released, and he cannot come near her until 2025 in consequence of the DVO. When asked about the offences of 2019, she said she felt like it was” just a little fight that really got out of hand”.[48] She agreed that the offences he committed against her were very serious, and she was taken for x-rays to ensure nothing was broken. She had bruising to her neck and back. The children were present when the offences were committed. She claimed that this was the first time it ever happened. After she was taken to a hospital she was placed in a refuge.
[48] Transcript page 41, lines 9 to 10.
When asked about the DVO issued in 2018, she could not recall the incident which gave rise to it. She said she has a “pretty good” relationship with his mother and sister and was going to the mother’s house for the Applicant’s brother’s birthday that evening.
She said her relationship with the Applicant was definitely over. She felt they could both be civil, and she is willing to share the children with him and his family. He is a good father, and she believes he is a good person. They just cannot get along.
W made no mention of any intention or attempt to revoke the DVO or shorten its duration.
Closing Submissions
Ms Letcher-Boldt made brief closing submissions, reiterating the Minister’s reliance on the SFIC. She acknowledged that the Applicant had undergone some rehabilitation since offending, but no specific program post imprisonment that was aimed specifically towards family violence or alcohol consumption.
She submitted that the Applicant displayed little insight into his offending, and no understanding of the impact on W and limited understanding of the impact on his children. She submitted that the Applicant still considered that he was pushed and provoked into his offending. There was a risk the Applicant would reoffend and Considerations 1 and 2 weighed strongly against revocation of the mandatory cancellation of the Applicant’s visa.
She submitted that the Applicant was not the primary caregiver to his children, had lengthy absences from them and was not intending to reside permanently with his children, who had been present during the events leading to the DVO and his arrest and incarceration. She drew the Tribunal’s attention to the fact that J seemed to have a closer relationship to him than P, who did not ask after him.
Regarding the niece A, she submitted that this should only receive limited weight as the Applicant was not in a parental role and would be able to maintain contact by telephone with him. The interests of the children were outweighed by Primary Considerations 1,2, and 4, which weighed heavily against revocation of the mandatory cancellation of the Applicant’s visa.
She submitted that the Applicant had breached the trust of the Australian community.
Regarding impediments to the Applicant’s return to his home country, she submitted that the Applicant was 35 years old, and there was no evidence of ill health, or likely language or cultural barriers. She nevertheless conceded that he would face challenges on his return, but that fact that he had lived 20 years of his life there would assist him, as would the fact that there would be some support from his mother’s side of the family.
Ms Letcher-Boldt submitted that the Applicant had strong family links to Australia, including his mother, sister, brother, two daughters, and his friends and work colleagues. He also had some employment history and had contributed doing voluntary work. However, whilst he arrived early in his life, when he returned, he was an adult and began offending within two years, and his links to Australia should therefore be given less weight.
CONSIDERATION
In addition to the foregoing, the Tribunal has had regard for the sentencing remarks of His Honour Judge Smith[49] on 9 December 2020:
[49] Exhibit G1, Section 501 G-Documents, G2, pages 37-40.
Mr Manebona, you’ve pleaded guilty to one count of common assault, one count of choking in a domestic setting, and one count of assault occasioning bodily harm. I take into account the pleas of guilty and reduce the penalties I would otherwise have imposed by reason of the pleas. They show cooperation in the administration of justice and have saved the cost of a trial. In sentencing you, I have regard to the principles of sentencing mentioned in section 9, subsection (1) of the Penalties and Sentences Act, the relevant matters in subsection (2), and because violence and harm was involved here, (2A) applies, and I primarily have regard to subsection (3).
You were born on the [date] of November 1986. You were 32 at the time; you’re now 34. You have a criminal history, but there is none for violence. There’s a domestic violence order in place; exhibit 2. I’ve considered section 42 of the Act and do not consider any amendments are necessary. As to the facts of this case, you and the complainant have been in an on and off relationship for about five years. There were two children: [J], who was four, and [P], two, at the time of the offences. It seems to me, from what I’m told, it was a fairly toxic relationship, with alcohol being involved with both parties. On 13 December 2018, a protection order was granted in favour of the complainant against you, and the children were named persons. That order said that you had to be of good behaviour.
On the 14^th of October 2019, you and she were at home and there was an argument. You left to try and prevent an escalation of the argument; both had consumed alcohol, but you returned at 7 pm intoxicated and angry. She was uncomfortable and asked you and your friend to leave, but that caused your anger to escalate. You then grabbed her by the arms and shoulders; count 1. She resisted; in response, you grabbed her by the throat, squeezed the neck. The pressure caused her to lose her breath for about five to 10 seconds. She struggled but could not escape your hold. You then dragged her by the throat into the living room, and using both hands, picked her up by the throat so her feet were off the ground and threw her to the ground. She landed hard and felt pain to the head; count 3. The children saw this.
She managed to get away and called for help. You went to a neighbour’s house. There was bruising to the neck, head and back, abrasions to the side, and red hands marks on the neck. Police attended; you were interviewed. You made some admissions; you denied squeezing her throat though, which is not accepted. I’ve seen the photographs here. There’s no victim impact statement, but of course, it can readily be inferred that the offending here has caused some emotional and physical distress. She’s quite charitable though and says she doesn’t want you to go to jail.
The Crown’s relied on HBZ [2020] QCA 73, which case has assisted me in reaching my decision. Now, your barrister has told me you’re a citizen of the Solomon Islands and clearly enough, by reason of any sentence I impose excess of 12 months today, there’s a real risk of deportation and immigration detention, and I specifically have regard to the statements of principle in Norris and Abdy regarding that and mitigate the sentence by reason of that. Ms Juhasz concedes two years is appropriate as a head sentence but submits, in light of the timely plea, your being on bail for a year with no further offending and no breaches of the order you should stay on today. She has told me you were born on the Solomon Islands, but your mother resides in Australia; she’s here in court to support you. You had a grandparent in the Solomons, but she has died – was it a female or a male, sorry?
…
HIS HONOUR: Grandmother. So there’s no direct family, although there’s an extended family. As I say, you were born in the Solomons; you came to North Queensland and had school in Rockhampton from 14 to 16. You went back to the Solomons to live with your grandparents after that, but then came back to Queensland in the early 2000’s. You’ve been consistently employed; you’ve worked as a welder. Presently, you’re working in a pallet factory. I’ve also had regard to exhibit 7, and I’m impressed, actually, you’ve done this recovery program. I hope that that helped, and I’ve seen that certificate in that regard.
Ms Juhasz stresses the nature of the relationship, which was dysfunctional. You’re willing to pay child support. The complainant had her own mental health issues. Alcohol clearly was a bad thing for both of you. You made admissions in your record of interview. She stresses the absence of previous convictions for violence, which is very relevant. You’re very remorseful for this, and you’d like to ultimately have contact with the children, but I’ve put that off because, of course, this needs to be dealt with first.
In the end, it was reasonably protected. Choking is regarded seriously by the courts; deterrent sentences are necessary. I think you need to go to jail, but I propose to significantly reduce the actual custody, in light of the deportation issues, which I’ve mentioned, and the other mitigating factors.
On each count, a conviction is recorded. On count 1, I impose three months imprisonment; count 2, two months imprisonment; count 3 – sorry, two years imprisonment; count 3, 18 months imprisonment. Those terms of imprisonment are to be served concurrently with each other. I order the terms of imprisonment be suspended after you have served a period of three months imprisonment, and you must not commit another offence punishable by imprisonment within a period of two years, if you are to avoid being dealt with for the suspended term of imprisonment.
[Tribunal’s emphasis]

The Tribunal has also had regard for the sentencing remarks[50] of Magistrate Shearer:
I’ve taken into account your plea of guilty. I don’t think anyone in any universe could say that it was an early plea by any stretch of the imagination, given that you were first before the court on the 15^th of October 2019. So it was well over a year before any pleas were entered. The reality is that this is a – this was a very serious breach of the domestic violence order constituted not just by not being of good behaviour, but by strangulation, assault occasioning bodily harm and common assault, and Judge Smith came to the very lenient view that you need only serve three months in custody for that without, it seems, requiring anything of you apart from walking out the prison door. Given that this the court that deals with domestic violence, makes domestic violence orders, has to consider all of the applications of domestic violence orders – and I assume that one has been made in this case, has it?
MR HORGAN: Yes, your Honour. There’s one in place already.
BENCH: Part of the peer role of this court is to ensure that domestic violent – domestically violent offenders don’t reoffend. Now, I don’t know that that can be achieved by the – a complete suspension of the order with no counselling, no evidence that you’ve undertaken any sort of domestic violence programs or anything ike that to reduce the risk of reoffending.
A fact that you don’t have any previous convictions for violence says, in the scheme of things, I think really neither here nor there because strangling someone, and assaulting them in the way you did, is not normal human behaviour and, occurring in a domestic setting, it’s something that the community I think would expect the courts to take steps to ensure that the person received supervision and some sort of domestic violence counselling or courses to ensure that it doesn’t happen again because I’m sure the complainant in this matter is someone who obviously you’re not going to be having a relationship with in future, but you may very well have a relationship with someone else and this sort of behaviour simply can’t be allowed to recur. The Parliament has made that perfectly clear by doubling the maximum penalty for this offence that can imposed in this court and increasing it to five or adding the new offence that increases it to five when dealt with in the District Court. So in my view, it would not be an appropriate sentencing response to merely convict and not further punish you.
I’m not going to inference with your release date, but I do think that you ought to be subject to supervision for some period of time and that that include domestic violence – a domestic violence course or counselling and that can only be achieved on parole. Leaving it up to you to do it I think would be a guarantee that it didn’t happen. So I’ve taken into account totality and that’s why your release date won’t be interfered with, but for the reasons I’ve just said, in my view, parole is appropriate. So for this charge, you’re convicted and sentenced to 12 months imprisonment. Parole release is fixed at the 8^th of March 2021. Right. Thank you.
[Tribunal Emphasis]
[50] Exhibit G1, Section 501 G documents, G2 pages 42-43.
The Tribunal has also had regard for the judgment of Her Honour Mullins JA (with whom McMurdo JA and Boddice J agreed) in R v HBZ [2020] QCA 73 which was cited in the remarks of Smith DCJ. In the course of considering the construction of the word “chokes” in s 315A of the Criminal Code Act 1899 (Qld) (the provision under which the present Applicant was sentenced by Smith DCJ), her Honour gave insight into the circumstances which led to the enactment of this provision.
Before turning to those circumstances, it is convenient to set out s. 315A:
(1) A person commits a crime if-
(a) the person unlawfully chokes, suffocates or strangles another person without the other person’s consent; or
(b) either –
(i) the person is in a domestic relationship with the other person; or
(ii) the choking, suffocation or strangulation is associated domestic violence under the Domestic and Family Violence Protection Act 2012.
Maximum penalty – 7 years imprisonment.
(2) An assault is not an element of an offence against subsection (1).
Her Honour recorded that s. 315A was enacted to address instances of non-fatal strangulation in line with a recommendation of the Specific Taskforce on Domestic and Family Violence (Queensland) in its 2015 Report Not Now, Not Ever: Putting an End to Domestic and Family Violence in Queensland an extract of which her honour cited at [35] which included the following:
Strangulation is a very common feature of domestic and family violence and is also seen as a predictive risk factor for future more severe domestic and family violence and for homicide. The introduction of a separate offence for strangulation, which is not limited by association with a future crime, would allow for better recording of domestic and family violence incidents leading to better risk assessment and increased protection of victims.
Her Honour also referred to the Explanatory Notes for the Bill which introduced s. 315A and quoted the following passages at [36] to[37]:
The new strangulation offence and the significant penalty attached, reflect that this behaviour is not only inherently dangerous, but is a predictive indicator of escalation in domestic violence offending, including homicide. The Taskforce noted the importance of identifying misconduct to assist in assessing risk to victims and increasing protections for them.
…
The introduction of the new offence is justified to protect vulnerable members of our community, identify this predictive violent domestic conduct, denounce this type of offending, and provide adequate deterrence to perpetrators of this type of offending.
Her Honour went on to observe at [56]:
The gravamen of the offending conduct which the offence seeks to deter is the action of one domestic partner towards the other that is described as either choking, strangling or suffocating the victim and not the consequence of the act. The rationale for the offence is that even though one incident in the domestic context of choking, strangling or suffocating may not result in any serious injury, the conduct must be deterred, because it is inherently dangerous and experience shows that if it is repeated death or serious injury may eventually result.
[Tribunal emphasis].
The Tribunal now turns to the specific considerations of Direction 90.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1 of the Direction compels decision-makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Application of Factors in Paragraph 8.1.1(1) of the Direction
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
Material before the Tribunal shows that a Protection Order was made under the Queensland Domestic and Family Violence Protection Act 2012 (Qld) (the DV Act) in the Magistrates Court at Richlands on 13 December 2018.[51] This arose as a result of an incident which occurred at about 9:30 PM on 11 December 2018. Extracts from the “Grounds for a protection order”[52] include the following:
Upon arrival, Police spoke with the aggrieved. She stated at around 20:00 hrs the respondent attended the aggrieved’s address and started kicking her front screen door, demanding to be let in. The aggrieved opened the wooden door and told the respondent to leave as she had just put the kids to bed. The respondent appeared heavily intoxicated and was yelling incoherently at the aggrieved and she told him to leave before slamming the door. The aggrieved stated she could hear the respondent hitting the letterbox before starting to walk up and down the road, continuing to yell incoherently…
After half an hour, the respondent reattended the aggrieved’s address. The aggrieved let the respondent inside and an argument started about the respondent’s behaviour. One of the children walked into the kitchen. The aggrieved picked up the child and said she was going to take them to the local Police station for help. The aggrieved and the respondent became involved in a physical altercation, with the aggrieved on the floor and the respondent standing over her. The aggrieved started kicking out at the respondent and he grabbed her by the throat to stop her. The aggrieved stated her breathing was not restricted, but a bruise was forming on the side of her neck when speaking with Police. The respondent then put the aggrieved in a wrist lock to loosen the aggrieved’s grip on the child who was still in her arms. The respondent then took the child and left the address on foot.
Police believe a protection order is necessary to protect the aggrieved and the children given the assault occurred while the child was in the arms of the aggrieved. The aggrieved stated the respondent is usually pleasant towards her and the kids, however has been known to become aggressive when he is intoxicated.
[51] Exhibit R3, Respondent’s Further Summonsed Material, SM4 page 62.
[52] Exhibit R3 Respondent’s Further Summonsed Material, SM4 page 66.
The Applicant was present[53] in the Magistrates Court at Richlands on 13 December 2018 when the following order was made by consent without admissions:
(1)The respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.
(2)The respondent must be of good behaviour towards the child/ren, must not commit associated domestic violence against the child/ren and must not expose the child/ren to domestic violence.
[53] Exhibit R3 Respondent’s Further Summonsed Material, SM4 page 62.
Following the episode on 14 October 2019 which led to the charges before Judge Smith, and Magistrate Shearer, Police applied for a variation of the DVO, and information placed before the Magistrate included the following[54]:
In September 2019 there were three separate domestic violence incidents between the Agg and Resp all of which were finalised as “No DV” incidents however this incident is a drastic escalation of violence and seriousness.
Police hold grave fears for the safety and well-being of the Agg and their children should the Resp be allowed to return to the Agg address. Please believe that domestic violence would be highly likely to occur again should the Resp be able to return to the address or should he have any contact with the Agg.
[Tribunal emphasis].
[54] Exhibit R3 Respondent’s Further Summonsed Material, SM4 page 59.
More detail of the events of 14 October 2019 may be found in the bail affidavit of Detective Sgt Brett Puller[55] , extracts of which include the following:
[55] Exhibit R3 Respondent’s Further Summonsed Material, SM4 page 44-50.
The respondent left the house following a verbal argument with the aggrieved for a short period of time and returned home with one of their children. Whilst here, another verbal argument has commenced with the aggrieved in relation to him wanting to leave the dwelling after dropping this child home.
This argument quickly escalated at the respondent has grabbed the aggrieved around the throat with his right hand and held his left hand behind her head and squeezed with such force that it caused a large amount of bruising across the victim’s neck and stopped her breathing.
The respondent has dragged the victim from one end of the room to the other and continued to squeeze the victim’s throat using his hands. The aggrieved stated she could not breath for between 5 and 10 seconds.
The respondent has picked the aggrieved off the floor by her neck and dropped her from a height to the ground causing her pain and bruising to her back and head.
The respondent has let go and commenced punching the ground next to the aggrieved’s head in an attempt to cause the victim fear, but these punches did not connect with her head. The aggrieved states the respondent has kicked her at least on one occasion around the right side of her and (sic) lower back.
.…
Police could see the visible bruising to the aggrieved’s neck already.… The aggrieved was transported to the PA Hospital by QAS offices as a result of injuries to her neck and head. They identified haematomas to her head and bruising to her neck which required medical assistance.… Detectives identified the injuries to the aggrieved neck and were advised that she sustained bruising to her head and ribs as a result of the assault by QAS and medical staff at the hospital.
…
During the interview, the respondent stated that the aggrieved was aggressive towards him and in order to calm her down, he grabbed her by the throat and carried her down to the ground. He stated that he punched the floor near her head as he was not stupid enough to assault her. The respondent stated the aggrieved’s injuries are as a result of him grabbing her by the throat and could not offer any lawful or emergent excuse for doing so or for his reasoning for assaulting her other than he wanted to make his point known.
…
On this occasion the defendant has committed a violent and heinous act on the aggrieved person. The defendant has viciously grabbed the victim by the throat and lifted her in the air for a considerable time, not allowing the aggrieved to breathe and proceeded to throw her onto the ground. This violent act was also conducted in front of the two children who observed the entire incident. The defendant has shown that he has no regard for the current Domestic Violence Protection Order that is in place by breaching both conditions.…
The defendant is apparently employed for a Pallet making business however, has not worked for the past month. The defendant predominantly associates himself with known property and drug offenders. He is a recreational drug user and has a high dependency to alcohol which he abuses on a daily basis.
The defendant has previous criminal history and interactions with Police. The defendant has been charged with Possessing Dangerous Drugs (2016), Possessing Dangerous Drug (2015 – Caution), Possess Utensils (2014), 2x Failure to Appear in Accordance with Undertaking (2013), Possess Utensils (2013), Wilful Damage (2011), Possessing Dangerous Drugs (2011) and 2X Unauthorised dealing with shop goods (2011).
The defendant has previously shown that he has disregarded previous Undertaking to Bail in 2013. It is highly likely that if the defendant is bailed, he will not attend court due to the seriousness of the offence and has proven this on two separate occasions in 2013 when trusted with entering into a bail undertaking. Investigators believe that the defendant should have this matter heard and the defendant be incarcerated until this time so ensure his appearance before court to ensure he does not interfere with the aggrieved person or put her at further risk by returning to their home to continue his violent outburst which is now apparent that he is capable of. This is not a trivial matter, and investigators note that it is a serious and violent attack on the aggrieved person in front of the children. The defendant resides with the aggrieved and will only return to their address which will put the aggrieved and her children at high risk of incidents such as this re-occurring.
.…
The defendant has shown a complete lack of empathy for the incident and shown during the interview that he does not take the incident seriously as he was yawning and laughing throughout the interview.
Given the serious nature of the violence shown by the defendant against the victim, detectives believe there is a serious risk to the victim and the defendant should be remanded into custody to ensure her safety in this matter as well due to the serious nature of the incident. Detectives have identified the defendant’s behaviour has escalated and believe if he was granted bail, has the potential to put the victim’s life in danger.
[Tribunal emphasis].
The Applicant’s conduct caused his former partner to receive medical attention for bruising to her neck, head and back, abrasions to her side, and red hand marks on her neck.[56] The Applicant’s other criminal convictions include possession of a utensil or pipe he had used to smoke ice,[57] and possession of cannabis.[58]
[56]    Exhibit R2, Respondent’s Summonsed Material SM1 page 2.
[57]    Exhibit R2, Respondent’s Summonsed Material SM3 at page 38.
[58]    Exhibit R2, Respondent’s Summonsed Material SM3 at page 34.

The Applicant has failed to offer any convincing evidence of insight into the seriousness and consequences of his offending, and its impact on W or their children.
There is not sufficient evidence before the Tribunal to persuade it that the Applicant has adequately addressed his alcohol issues, which appear to be the root of his problem and a major contributing factor to his domestic violence offending.
For these reasons, the Tribunal gives Primary Consideration 2 weighs against revocation of the mandatory cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 2
Primary Consideration 2 weighs against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under s 501, or non-revocation under s 501CA, is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 13.2(4) of the Direction provides a list of factors to be considered in determining the best interests of the minor children. Those factors relevantly comprise for present purposes:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
It is first necessary to identify the children actually or possibly relevant to this proceeding. The Applicant has identified his two minor biological daughters J and P and his minor niece A as relevant children who would be affected by the decision.
The Applicant’s elder daughter J appears to be more attached to the Applicant and missing him more than her younger sibling. W described J as having a very good relationship with her father, and they were “best friends”. W stated J is stressed and unsettled, and not sleeping or eating well. P has been asking and crying for her father and “gets confused on who to call dad”.[63] W also gave evidence that the Applicant loves and adores his daughters.
[63] Exhibit G1, Section 501 G documents, G2 page 84.
The Applicant has a parental relationship with J and P, but has been substantially out of their lives for a period of about two years, and they are apparently well cared for by W, and have contact with the Applicant’s sister. The Applicant’s contact with J and P during this period has been minimal in consequence of the DVO, imprisonment, and detention.
The extent to which the Applicant might play a positive role in his daughter’s lives turns initially on the future of the DVO which is on foot until 2025. Assuming this obstacle can be overcome, it then turns on his capacity to moderate his drinking. There was no clear evidence of a proposal to completely revoke the DVO, but there does appear to be an implicit intention on the part of W and the Applicant to seek to vary it so as to allow for shared custody. Both he and W gave evidence of a proposal for shared custody of the children on a week on, week off basis. It is very likely that W and the Applicant would (unless they act through intermediaries) be in close contact on a weekly basis. Provided the Applicant is not adversely affected by drugs or alcohol during these occasions, the Tribunal accepts that the Applicant might play a positive role in the lives of his daughters. On the other hand, were he to be adversely affected by drugs or alcohol, the Tribunal harbours concerns that once again the children might be exposed to further episodes of family violence, and these may adversely affect the children.
The Applicant is not in a parental role with A, and there is no reason to believe she is not adequately cared for by her mother, the Applicant’s sister. The Tribunal accepts that she does have some relationship with the Applicant, although once again there appears to have been a lengthy period of separation. There are no relevant court orders. A was not present during the episodes of family violence, and the Applicant’s prior conduct does not appear to have impacted on her other than by leading to separation.
There is no expert evidence before the Tribunal regarding the extent of the impact of the Applicant’s past conduct on his daughters. It would be surprising if it had no negative impact, and it may well have caused emotional trauma.
It may be that from the Solomon Islands, the Applicant may face obstacles, for instance in the expense of telephone calls, or the availability of satisfactory internet facilities to maintain regular contact with his daughters.
It is about 12 years until J turns 18, and about 15 years until P turns 18. It is about 7 years until A turns 18.
It appears that J will be most severely impacted by the Applicant’s deportation, and that P will also be heavily impacted, but possibly not to the same extent as J. The impact on A is most likely less than on J or P. The Tribunal gives weight in these proportions in favour of revocation.
The Tribunal accepts that it is in their best interests of all of the children in the proportions discussed above that the Applicant remain in Australia, and have some contact with them to the extent they wish, and this consideration weighs in favour of revocation of the mandatory cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 3
The best interests of the children mentioned above weighs in favour of the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[64]
[64] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Analysis – Allocation of Weight to this Primary Consideration 4
The Applicant in this case has, as a mature man, committed very serious violent offences against a woman in the face of the DVO. In doing so, he has clearly failed to meet the expectations of the Australian community, and the Tribunal is satisfied that there is an unacceptable risk that he will do so again. The Tribunal accepts that his record of criminal and other serious conduct is such that the Australian community would expect that his visa remain cancelled.
Conclusion: Primary Consideration 4
Accordingly, Primary Consideration 4 weighs against revocation of the mandatory cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.
9.1 International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence.
This Other Consideration is not relevant.
9.2 Extent of Impediments if Removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is a 35-year-old man, and he does not contend, and there is no medical evidence that he suffers any health issues.
There do not appear to be any significant language or cultural barriers to his return to the Solomon Islands, as he has lived a substantial part of his life there.
The Solomon Islands is of course a developing country, and social, medical and economic support would, to the extent that they are available, would be just as available to him in establishing himself and maintaining basic living standards as they are to other citizens of that country.
The Tribunal accepts that the Applicant has a poor relationship with his father, and may face adversity in the context of an ignominious return to the Solomon Islands. On the other hand, he has numerous relatives on his mother’s side who can offer him personal and social, but not financial support.
The Tribunal accepts that the Applicant will face challenges returning to his home country.
This Other Consideration weighs in favour of revocation of the mandatory cancellation of the Applicant’s visa.
9.3 Impact on Members of the Australian community including Victims
Paragraph 9.3(1) states that decision-makers must consider the impact of the s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The only relevant evidence before the Tribunal comes from the victim of the Applicant’s most serious offending, W, who gave evidence before the Tribunal that although her relationship with the Applicant is finished, she has a good relationship with his mother and sister, and was going to his mother’s home that evening to attend the Applicant’s brother’s birthday. She gave positive evidence regarding the Applicant particularly as to his role as a father, a good person, and an important role model, and requested for the sake mainly of her elder daughter, that the Applicant be allowed to remain in Australia.
The Tribunal is concerned that W’s evidence has been to some degree compromised by the closeness of her relationship with the Applicant’s mother, sister and brother, and tailored in consequence. The Tribunal gives W’s evidence little weight in regard to this consideration.
There is no broader evidence regarding the impact on the wider Australian community.
In the absence of other relevant evidence, the Tribunal gives this Other Consideration neutral weight.
9.4 Links to the Australian Community
Paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors:
·the strength, nature and duration of ties to Australia; and
·the impact on Australian business interests
9.4.1 Strength, Nature and Duration of Ties to Australia
The Applicant first arrived in Australia on 11 September 2001 when he was 14 years of age. He returned to the Solomon Islands on 27 August 2002 where he lived until 9 January 2007 at which time he returned to Australia. The Applicant commenced his offending within two years of his arrival, and his criminal offending began in 2011, approximately four years after his return. In this circumstance, the Tribunal gives less weight to the period the Applicant has resided in Australia having regard for paragraph 9.4.1(2)(a)(i) of the Direction.
In his favour, the Applicant does have employment history in Australia from 2007 to 2011, from 2012 to 2013, and from 2016 to 2020. In addition, he has also done volunteer work as described above.
There is no doubt that the Applicant’s immediate family will be very significantly and adversely impacted by a decision to remove him from Australia. His mother, sister, brother, two daughters and niece are all Australian citizens entitled to remain indefinitely in Australia. His two children, in particular, will not have their father with them as they grow up, and this is likely to cause them emotional and other hardship.
This Other Consideration weighs in favour of revocation of the mandatory cancellation of the Applicant’s visa.
9.4.2 Impact on Australian Business Interests
There is no evidence before the Tribunal that the Applicant’s deportation will impact on Australian business interests in the manner contemplated by Direction 90.
Overall, the Applicant’s links to the Australian community weighs in favour of revocation of the mandatory cancellation of his visa.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations 1, 2, and 4, with each weighing in favour of non‑revocation. The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: neutral weight;
(b)extent of impediments if removed: weighs in favour of revocation;
(c)impact on victims: neutral weight; and
(d)links to the Australian community: weighs in favour of revocation.
CONCLUSION
The Tribunal is now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, The Tribunal finds as follows:
·Primary Consideration 1 weighs very heavily in favour of non-revocation;
·Primary Consideration 2 weighs in favour of non-revocation;
·Primary Consideration 3 weighs in favour of revocation;
·Primary Consideration 4 weighs in favour of non-revocation; and
·To the extent that Primary Consideration 3 and Other Considerations (b) and (d) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations 1, 2 and 4.
Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 227 (two hundred and twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

.........................[SGD].....................................
Associate
Dated: 17 December 2021

Date(s) of hearing: 9 December 2021

Applicant: By videoconference

Solicitors for the Respondent: Ms Emma Letcher-Boldt

Clayton Utz
ANNEXURE A

Exhibit Number

Description

Date of Document

Party

Filing Date

G1

Section 501 G documents (G1 to G7, paged 1 to 177)

-

R

13 OCT 2021

R1

Respondent’s Statement of Facts, Issues and Contentions (20 pages)

22 NOV 21

R

22 NOV 2021

R2

Respondent’s Summonsed Material (SM1 to SM3, paged 1 to 40)

-

R

22 NOV 2021

R3

Respondent’s Further Summonsed Material (SM4, paged 41 to 69)

-

R

1 DEC 2021

A1

Applicant’s Rehabilitation Evidence (4 pages) including:

· Letters of Attendance - ‘Early Recovery Group’ Inala Alcohol and Drugs Service, dated 27 September 2021, 7 November 2021 and 21 November 2021.

· Certificate of Attendance – ‘Early Recovery Substance Abuse Program’ Inala Alcohol and Drugs Service, dated 27 September 2021.

-

A

8 OCT 2021

A2

Email from Applicant (1 page)

25 OCT 21

A

25 OCT 2021

A3

Letter from Anglicare (1 page)

2 NOV 21

A

3 NOV 2021

A4

Letter of Apology from the Applicant addressed to Victim (1 page)

12 OCT 21

A

24 NOV 2021

A5

Letter of Apology of the Applicant (1 page)

13 OCT 21

A

24 NOV 2021

A6

Letter of the Applicant (undated) (1 page)

-

A

24 NOV 2021

A7

Statement of the Applicant (undated) (1 page)

-

A

24 NOV 2021

A8

Applicant’s International Health and Medical Services (IHMS) Medical Records (51 pages)

-

A

25 NOV 2021

A9

Letter from Suzanne Utai, Grow Support Inc (1 page)

25 NOV 21

A

29 NOV 21

A10

Letter from Peter Grabar, JG50 Pty Ltd (1 page)

30 NOV 21

A

1 DEC 21

A11

Letter from State Penalties Enforcement Registry (SPER) (1 page)

15 NOV 21

A

4 DEC 21

[2021] AATA 4680

17 December 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Date(s) of hearing:	9 December 2021
Applicant:	By videoconference
Solicitors for the Respondent:	Ms Emma Letcher-Boldt
Clayton Utz

Exhibit Number	Description	Date of Document	Party	Filing Date
G1	Section 501 G documents (G1 to G7, paged 1 to 177)	-	R	13 OCT 2021
R1	Respondent’s Statement of Facts, Issues and Contentions (20 pages)	22 NOV 21	R	22 NOV 2021
R2	Respondent’s Summonsed Material (SM1 to SM3, paged 1 to 40)	-	R	22 NOV 2021
R3	Respondent’s Further Summonsed Material (SM4, paged 41 to 69)	-	R	1 DEC 2021
A1	Applicant’s Rehabilitation Evidence (4 pages) including: · Letters of Attendance - ‘Early Recovery Group’ Inala Alcohol and Drugs Service, dated 27 September 2021, 7 November 2021 and 21 November 2021. · Certificate of Attendance – ‘Early Recovery Substance Abuse Program’ Inala Alcohol and Drugs Service, dated 27 September 2021.	-	A	8 OCT 2021
A2	Email from Applicant (1 page)	25 OCT 21	A	25 OCT 2021
A3	Letter from Anglicare (1 page)	2 NOV 21	A	3 NOV 2021
A4	Letter of Apology from the Applicant addressed to Victim (1 page)	12 OCT 21	A	24 NOV 2021
A5	Letter of Apology of the Applicant (1 page)	13 OCT 21	A	24 NOV 2021
A6	Letter of the Applicant (undated) (1 page)	-	A	24 NOV 2021
A7	Statement of the Applicant (undated) (1 page)	-	A	24 NOV 2021
A8	Applicant’s International Health and Medical Services (IHMS) Medical Records (51 pages)	-	A	25 NOV 2021
A9	Letter from Suzanne Utai, Grow Support Inc (1 page)	25 NOV 21	A	29 NOV 21
A10	Letter from Peter Grabar, JG50 Pty Ltd (1 page)	30 NOV 21	A	1 DEC 21
A11	Letter from State Penalties Enforcement Registry (SPER) (1 page)	15 NOV 21	A	4 DEC 21