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

[2023] AATA 2094

Manuel and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2094 (12 July 2023)

Division:GENERAL DIVISION

File Number:          2022/2677

Re:Brett Terry Manuel

APPLICANT

Minister for Immigration, Citizenship and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Senior Member C. J. Furnell

Date:12 July 2023

Place:Melbourne

The Tribunal sets aside the decision under review and, in substitution for that decision, the Tribunal decides to revoke the decision to cancel the Applicant’s visa. 

................................ [SGD]........................................

Senior Member C. J. Furnell

Catchwords

MIGRATION – mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa – Migration Act 1958 (Cth) s 501(3A) – New Zealand – Applicant does not pass character test – substantial criminal record – whether there is another reason why mandatory cancellation should be revoked – Direction 99 – primary and other considerations – decision under review set aside and substituted

Legislation

Family Law Act 1975 (Cth)
Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases

Aitchison v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 357
Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 559
Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
BLBY v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 128 BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Brown v Minister for Immigration and Citizenship (2010) 265 ALR 668
Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514
DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97
DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84
Donnelly v Minister for Immigration and Border Protection [2019] FCA 798
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Esber v Commonwealth of Australia (1992) 174 CLR 430
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
Frugtniet v Australian Securities and Investments Commission [2023] FCAFC 14
FYBR v Minister for Home Affairs (2019) 272 FCR 454
GWRV v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 39
Hughes v R [2017] HCA 20
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kayo Rerekura and Minister for Home Affairs [2019] AATA 153
Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16
Li v Minister for Immigration, Citizenship, Migrant Services and Multicultural [2022] FCA 1594
MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11
MDXJ v Secretary, Department of Social Services [2020] FCA 1767
Meyrick v Minister for Home Affairs [2020] FCA 677
Minister for Home Affairs v Sharma [2019] FCA 597
Minister for Immigration v HSRN [2023] FCAFC 68
Minister for Immigration and Ethnic Affairs v Guo WeiRong (1997) 191 CLR 559 at 574
Minister for Immigration and Border Protection v Makasa [2021] HCA 1
Minister for Immigration and Citizenship v Anochie [2012] FCA 1440
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529
MQGT v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 291
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
Plaintiff M1 v Minister for Home Affairs [2022] HCA 17
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
PQSM v Minister for Home Affairs [2019] FCA 1540
Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46
Trout v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 583
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409

Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545

Secondary Materials

Direction No 99 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member C. J. Furnell

12 July 2023

1. In this proceeding, the issue is whether a May 2021 decision to cancel the applicant’s Class TY Subclass 444 Special Category (Temporary) visa (the “visa cancellation decision”)[1] ought to be revoked.

   [1] Respondent Tender Bundle (‘RTB’), RTB1, pp.73-78.

2. The cancellation of the applicant’s visa was mandatory because, under s 501(3A) of the Migration Act 1958 (the “Act”):

   (a)A delegate of the Minister was satisfied that the applicant did not pass the character test set out in s 501 of the Act because he had a substantial criminal record;[2]  and

   (b)The applicant was then serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of an Australian State.

   [2] As defined in the Act, s 501(7). See in particular Act, s 501(7)(d).

3. In June 2021, the applicant made representations about revocation of the visa cancellation decision in response to, and in accordance with, the requisite invitation to do so.[3]

   [3] Act, s 501CA(3). See RTB1, pp.81-83.

4. As a result, the respondent was empowered to revoke that decision if satisfied that the applicant passed the Act’s character test or that there was another reason why the decision should be revoked.[4]

   [4] Act, s 501CA(4).

5. A delegate of the respondent was not, however, satisfied of either of those things. In March 2022, the delegate decided not to revoke the visa cancellation decision.[5]

   [5] RTB1, pp.17-24.

6. The applicant asked the Tribunal to review the delegate’s decision.[6]

   [6] RTB1, pp.10-15. In June 2022, the Tribunal decided to affirm the delegate’s March 2022 decision: RTB, pp.694-725.  In November 2022, however, the Tribunal’s decision was quashed with the matter being remitted for reconsideration according to law: RTB2, pp.756-760.

7. More will be said later about the role of the Tribunal in conducting such a review. It generally entails, however, the Tribunal performing the same function and exercising the same power, being subject to the same constraints and addressing the same question or questions as the delegate.

8. As such, as they were for the respondent’s delegate, the questions ultimately in issue in this proceeding are whether the Tribunal is satisfied that the applicant passes the relevant character test or that there is another reason why the visa cancellation decision should be revoked.

9. In answer to those questions and for the reasons which follow, I am not satisfied that the applicant passes the character test but I am satisfied that there is another reason why the visa cancellation decision should be revoked.

   MATERIAL CONSIDERED

10. In undertaking its review of the March 2022 decision to refuse to revoke the visa cancellation decision, the Tribunal is obliged to make “the correct or preferable decision” on the material before it.[7]     

    [7] See Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [96]–[98] (Hayne and Heydon JJ).

11. The material before the Tribunal included evidence adduced at the hearing and certain documentary material lodged with the Tribunal prior to the hearing.

12. As for evidence adduced at the hearing, the Tribunal heard from the applicant, the applicant’s oldest daughter (“Daughter 1”), the applicant’s mother (“Ms AM”) and the applicant’s partner (“Ms TV”).

13. As for documentary material lodged with the Tribunal, it comprised:

    (a)A tender bundle of 1219 pages of documents lodged with the Tribunal by the respondent (the “RTB” documents) (Exhibit R1).

    (b)A supplementary bundle of documents lodged with the Tribunal by the applicant (the “ATB” documents).

    (c)A statement from the applicant of 16 March 2023.

    (d)A statement from the applicant of 12 April 2023.

    (e)A letter of support from Daughter 1 dated 7 March 2023.

    (f)An undated letter of support from Ms AM.

    (g)A letter of support from the applicant’s father (“Mr AF”) dated 11 March 2023.

14. The parties lodged submissions about that documentary material prior to the hearing.[8]

    [8] See the respondent’s statement of facts, issues and contentions of 4 April 2023 (“R SFIC”) and the applicant’s statement of facts, issues and contentions of 21 March 2023 (“A SFIC”).

    ASPECTS OF FACTUAL CONTEXT

15. The applicant was born in New Zealand in September 1977 and arrived in Australia in April 1981, aged three.

16. Since then, he has spent almost all his time in Australia, having travelled overseas “twice for short trips to New Zealand, and once on a short trip to Indonesia.”[9]

    [9] A SFIC [7]; RTB1, pp.186-190.

17. He completed his education (up to year 10) and an apprenticeship (as a heavy-duty diesel mechanic) in Australia.

18. Almost all the applicant’s family lives in Australia.

19. His parents have been separated since around 2016. His mother, Ms AM, aged 70, lived in Western Australia but moved to Sydney after the applicant was incarcerated in 2021 and his father, Mr AF, aged 68, lives in Queensland.[10]

    [10] RTB1, p.118.

20. The applicant has four children, two boys and two girls.[11]

    [11] RTB1, p.83.

21. The two boys are minors and live with their mother in New South Wales. One was born in November 2009 (Son 1) and the other in November 2011 (Son 2).[12] The younger son suffers from autism.[13]

    [12] RTB1, p.90.

    [13] RTB1, p.91.

22. Daughter 1 was born in September 1994 when the applicant was 17. She lives in Western Australia and has two sons,[14] one born in November 2014 (“Grandson 1”) and the other born in June 2016 (“Grandson 2”).

    [14] RTB1, p.91.

23. The applicant’s younger daughter (“Daughter 2”) was born in 1997.[15] She lived in Western Australia until around 2019,[16] when she moved to New South Wales.[17]

    [15] Applicant’s statement of 16 March 2023.

    [16] RTB1, p.118.

    [17] Applicant’s statement of 16 March 2023.

24. The applicant has an older brother who has two children. Little, however, was said about them in this proceeding.

25. The applicant is in a relationship with a woman called in these reasons Ms TV. That relationship commenced in around February 2020.[18] The applicant and Ms TV lived together for approximately two months, commencing in around mid-December 2020[19] and ending in February 2021 when the applicant was incarcerated.  They plan to get married.[20] Ms TV has five children.[21]

    [18] RTB1, p.89.

    [19] In oral evidence, Ms TV said that she and the applicant started living together just before Christmas of 2020.

    [20] RTB1, p.89.

    [21] RTB1, p.117.

26. The applicant has two uncles and three aunts living in New Zealand.[22] The applicant says he does not to know them.

    [22] RTB1, p.94.

27. The applicant claims to have always worked when free in the community. In 2015 to 2019 he worked as a mechanic and then from 2019 to 2021 he worked as a truck driver.[23]

    [23] RTB1, p.96.

28. The applicant is a drug addict. He says “…I’ve spent my life addicted to drugs where I was self-medicating for ADHD.”[24] In a history provided to a psychologist, he is said to have begun “…using amphetamines at age 15 which changed to methylamphetamines (ICE) about 10 years ago. He said his use of ICE was regular and daily before his arrest.”[25]

    [24] Applicant’s statement of 16 March 2023.

    [25] March 2021 report of Ms Cidoni, psychologist: RTB1, p.119.

29. Illicit substances (as well as alcohol) were said to provide solace and escape from, but to have exacerbated the symptoms of, various mental health conditions from which the applicant is said to suffer,[26] such as ADHD, PTSD and major depression and generalised anxiety. While in detention, the applicant has been prescribed medication for depression.[27]

    [26] Ibid at RTB1, p.121; Report of Ms Cidoni of August 2021: RTB pp.130-1.

    [27] RTB1, pp.1161-1162.

    Does APPLICANT Pass the Character Test?

30. The character test is set out in s 501(6) of the Act. Under that section, a person is considered not to pass the test if any of a number of circumstances applies in relation to the person.

31. One such circumstance is when the person has a substantial criminal record.[28] Under the Act, a person will have such a record if, for example, the person has been sentenced to two or more terms of imprisonment which total 12 months or more.[29]

    [28] Act, s 501(6)(a).

    [29] Act, s 501(7)(d).

32. In this regard and as will be soon seen, the applicant was sentenced to:

    (a)a term of imprisonment of three months in April 1996.

    (b)two terms of imprisonment of six months and one day in August 2005, to be served concurrently, with six months of the sentence suspended. I note that in determining the total of a person’s terms of imprisonment, the whole term of each sentence to be served concurrently is required to be counted,[30] as is the term of any suspended sentence.[31]

    (c)a term of imprisonment of nine months in June 2021.[32]

    [30] Act, s 501(7A).

    [31] Brown v Minister for Immigration and Citizenship (2010) 265 ALR 668 at [114].

    [32] RTB1, pp.46-48 (Australian Criminal Intelligence Commission check results report of 16 July 2021).

33. Accordingly, the applicant has a substantial criminal record. He has been sentenced to imprisonment for terms which, in aggregate, amount to 12 months or more. As such and as conceded by him,[33] the applicant does not pass the relevant character test.

    [33] A SFIC [5].

34. Given the failure to pass that test, the visa cancellation decision can only be revoked if I am satisfied that there is another reason why it should be revoked.

    Is there another reason why the cancellation decision should be revoked?

35. As is clear from my decision in this proceeding, I am satisfied that there is such a reason.

36. That state of satisfaction was arrived at in the performance of a function or the exercise of a power of the Tribunal under the Act. As such, the Tribunal was required to comply with any direction given under s 499 of the Act about the performance of such functions or the exercise of such powers.[34]

    [34] Act, s 499(2A).

37. A number of directions have been given under s 499. The direction that applied at the time of the decision the subject of review[35] (“Direction 90”) differs from the one which currently applies (“Direction 99”[36]).

    [35] The direction applicable at the time of the decision the subject of review, Direction 90, was revoked with effect from 3 March 2023: see Direction 99.

    [36] Direction 99 being an instrument made on 23 January 2023, which commenced on 3 March 2023 and entitled “Direction No 99 — Migration Act 1958 — Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”.

38. As I see it and consistently with the submissions of the parties, Direction 99 is the direction with which the Tribunal is bound to comply in this proceeding. 

39. It might have been contended that the role of the Tribunal dictates that it comply with Direction 90. The Tribunal reviews certain decisions and, in so doing, performs the same function and exercises the same power as the relevant decision-maker. Its role requires that it stand in the decision-maker’s shoes in order to “do over again” that which was done by the decision-maker,[37]  performing the same function, exercising the same power,[38] being subjected to the same constraints and addressing the same question or questions[39] as the decision-maker.

    [37] Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], quoting with evident approval two earlier decisions, Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51] and Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 315 [40]-[100].

    [38] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ZRTY [2022] FCA 1529 per Katzmann J at [34] citing Esber v Commonwealth of Australia (1992) 174 CLR 430 at 440. Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [14]-[15]. Minister for Immigration and Border Protection v Makasa [2021] HCA 1 at [50], where it is said that the “…merits review function of the AAT is “to stand in the shoes of the decision-maker whose decision is under review so as to determine for itself on the material before it the decision which can, and which it considers should, be made in the exercise of the power or powers conferred on the primary decision-maker for the purpose of making the decision under review”. The function of the AAT, in other words, is “to do over again” that which was done by the primary decision-maker.”

    [39] Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at [51], where it is said that the “…AAT exercises the same power or powers as the primary decision-maker, subject to the same constraints. The primary decision, and the statutory question it answers, marks the boundaries of the AAT’s review. The AAT must address the same question the primary decision-maker was required to address, and the question raised by statute for decision by the primary decision-maker determines the considerations that must or must not be taken into account by the AAT in reviewing that decision”.

40. In undertaking that role, the Tribunal is “…not at large.  It is subject to the same general constraints as the original decision-maker and should ordinarily approach its task as though it were performing the relevant function of the original decision-maker in accordance with the law as it applied to the decision-maker at the time of the original decision.” [40]

    [40] Frugtniet v Australian Securities and Investments Commission [2019) 266 CLR 250 at [14] per Kiefel CJ, Keane and Nettle JJ (with my emphasis).

41. Hence, as a general rule, the role undertaken by the Tribunal entails application of the legal context which confronted the decision-maker.[41] Hence, for example, a consideration which the person who made a decision the subject of Tribunal review was required to take into account must also be taken into account by the Tribunal and a consideration which could not have been taken into account by that person cannot be taken into account by the Tribunal.[42] This is a function of its role rather than, say, because of any interpretative rule operating to preserve rights that might have accrued under a repealed legislative instrument.[43]  

    [41] See also Shi v Migration Agents Registration Authority (2008) 235 CLR 286 per Kiefel J (as Her Honour then was) at [134] “…in reaching a decision on review of a decision of the original decision-maker, the Tribunal should consider itself as though it were performing the function of that administrator in accordance with the law as it applied to that person.”

    [42] Frugtnietv Australian Securities and Investments Commission [2019) 266 CLR 250 at [51] per Bell, Gageler, Gordon and Edelman JJ “… A consideration which the primary decision-maker must take into account in the exercise of statutory power to make the decision under review must be taken into account by the AAT. Conversely, a consideration which the primary decision-maker must not take into account must not be taken into account by the AAT.”

    [43] See, for example, Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 at [5].

1. The role to be undertaken by the Tribunal on review of any particular decision is, however, subject to alteration by statute. Hence, in the circumstances considered by the Full Federal Court in GWRV,[44] it was said that cases such as Shi and Frugtniet “…do not support the proposition that the Tribunal must ask itself the same questions that the primary-decision maker did ask itself in circumstances where the Tribunal’s jurisdiction has been limited, if not expressly, then by necessary implication…”.[45] In particular, Shi was said to say “…nothing about the authority of the legislature to confer a right of review, whether at large or on terms, to the Tribunal.”[46] As for Frugtniet, the Court noted that the High Court had there expressly stated that the Tribunal’s role of standing in the shoes of the relevant decision-maker applied “…except where altered by some other statute…”.[47]

   [44] GWRV v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 39 (“GWRV”). See also Frugtniet v Australian Securities and Investments Commission [2023] FCAFC 14 at [57] where the general position as to the law to be applied by the Tribunal on review was, in the context of the matter before the Court, considered to have been altered by statute, in particular, certain transitional provisions.

   [45] GWRV at [50].

   [46] GWRV at [52].

   [47] GWRV at [54].

2. Accordingly, absent any statutory alteration to the Tribunal’s usual role, the Tribunal would be required to comply with Direction 90 if it comprised part of the law which applied to the delegate who made the decision the subject of review.

3. I do not need to decide whether Direction 90 did comprise part of that law. While it is arguable that it did,[48] as I see it, when the Tribunal is exercising powers and functions under the Act, that aspect of the usual role of the Tribunal which requires application by the Tribunal of the legal context which applied to the relevant decision-maker has been relevantly altered.

   [48] The nature of a direction under s 499 is unclear. In Trout v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 583 at [83]-[84], Feutrill J recently concluded that a direction was an administrative policy and not part of the legal framework. At [86], his Honour stated that although “…the delegate was bound to comply with Direction 79 at the time of the delegate’s decision and a failure to take into account a mandatory relevant consideration of Direction 79 would have deprived the delegate’s decision of legal effect, it was not a legal constraint on the exercise (or not) of power under s 501CA(4). It was a statement of executive policy regarding the exercise (or not) of that power at that time, but it had no bearing on the rights of the applicant under s 501CA(4).” In Meyrick v Minister for Home Affairs [2020] FCA 677 at [74], it was said that there are difficulties in determining whether such a direction is administrative or legislative in character. In Minister for Immigration and Citizenship v Anochie [2012] FCA 1440 at [26]-[31], it was suggested that a s 499 direction was a species of delegated legislation. In Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [54], however, it was said that a s 499 direction is not a legislative instrument but, rather, a statement of policy which does not alter the scope or content of a decision-maker’s power. These decisions were discussed in MQGT v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 291 at [16]-[17], where it was suggested that much was to be said for the view taken in Uelese. Arguably, however, a direction under s 499 is more than a statement of policy. The expression of policy is an administrative act. Such an act cannot give rise to mandatory relevant considerations. Such considerations can only be imposed by Australia’s domestic law: Plaintiff M1 v Minister for Home Affairs [2022] HCA 17 at [20]-[29]; CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 at [490]. A direction under s 499 has been found to give rise to mandatory relevant considerations. It has been said to identify, non-exhaustively, “…matters that a decision-maker must consider…”: Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104 at [45], citing Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 at [16]. See also BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 at [22], where it is said that such a direction imposes mandatory and aspirational considerations. A s 499 direction identifies mandatory relevant considerations such that a failure to comply with such a direction may constitute jurisdictional error: BLBY v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 128 [19]. Such a direction imposes requirements that are a precondition for the making of a valid decision: PQSM v Minister for Home Affairs [2019] FCA 1540 at [22]. In Kumar v Minister for Immigration and Border Protection [2020] FCAFC 16 at [29], it was said in relation to a direction that if it “…required a particular matter to be taken into account as a mandatory relevant consideration in reaching the required state of satisfaction and such a matter was advanced by an applicant but ignored by the delegate or Tribunal, then jurisdictional error would be demonstrated…”. In Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46 at [23], it was said that s 499 directions “…must be taken into account, and they must be accurately understood...”. In Minister for Immigration v HSRN [2023] FCAFC 68 at [39], a s 499 direction was said to prescribe “…to a significant extent, how the relevant discretion is to be exercised”. On the other hand, policy does not appear to require anything of the Tribunal. In MDXJ v Secretary, Department of Social Services [2020] FCA 1767 it was said (at [17]) that the “…part which a governmental policy should ordinarily play in the determinations of the Tribunal is a matter for the Tribunal to determine, in the context of the particular case, informed by considerations of the desirability of consistency of administrative decisions, but balanced against the ideal of justice in the individual case …  Further, it is well-established that the Tribunal … is at liberty to adopt whatever policy it chooses, or no policy at all, in fulfilling its statutory function.”

4. That alteration is effected by the empowering statute and, in particular, by s 499 of the Act.

5. The s 499 requirement to comply with a direction made under that section is one imposed on the Tribunal directly, not as a result of the Tribunal having stepped into the shoes of a decision-maker.[49] Rather than being about the performance of functions and powers of a decision-maker to whose position the Tribunal has, in a sense, been subrogated, a s 499 direction is, as applied to the Tribunal, about the performance of its functions and powers under the Act. When exercising such functions and powers, it is necessarily implicit that the personal obligation of the Tribunal to comply with a s 499 direction only attaches to a direction extant at the time of that exercise. At the time of the Tribunal’s exercise of its functions and powers under the Act in the context of this proceeding, the only relevant extant direction is Direction 99.

   [49] Act, s 499(2A).

6. As there has been a failure to pass the Act’s character test, compliance with Direction 99 requires that the Tribunal consider whether there is another reason to revoke the visa cancellation decision “given the specific circumstances of the case”.[50] The direction is not, however, “…an exhaustive universe; it refers to matters that a decision-maker must consider but does not confine what may be taken into account…”.[51]

   [50] Direction 99, cl 5.1(3).

   [51] Calvey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 104 at [45], citing Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17 at [16]. See also BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99 at [23] as to the position under Direction 90.

7. The Tribunal’s consideration is to be undertaken informed by,[52] and in the context of a framework comprised of,[53] certain principles.

   [52] Direction 99, cl 6.

   [53] Direction 99, cl 5.2.

8. Those principles are set out in cl 5.2 of Direction 99. They are as follows:

   “5.2      Principles

   (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 measureable risk of causing physical harm to the Australian community.

   (4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

   (5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

   (6) Decision-makers must take into account the primary and other considerations relevant to the individual case.  In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.”

9. I turn now to the considerations which (to the extent that they are relevant) I am required by Direction 99 to take into account in deciding whether to revoke the visa cancellation decision.[54]

   [54] Direction 99, cl 6.

   Considerations – Overview

10. The relevant considerations are those set out in clauses 8 and 9 of Direction 99. They are divided into primary considerations and other considerations.

11. The primary considerations are protection of the Australian community from criminal or other serious conduct; whether the conduct engaged in constituted family violence; the strength, nature and duration of ties to Australia; the best interests of minor children in Australia; and expectations of the Australian community.[55] 

    [55] Direction 99, cl 8.

12. The other considerations include (but are not limited to) legal consequences of the decision; extent of impediments if removed; impact on victims; and impact on Australian business interests.[56]

    [56] Direction 99, cl 9(1).

13. The primary considerations are generally to be given greater weight than the other considerations[57] and one or more primary considerations may outweigh other primary considerations.[58] 

    [57] Direction 99, cl 7(2).

    [58] Direction 99, cl 7(3).

14. While primary considerations should generally be afforded greater weight than the other considerations, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[59] However, for an “other consideration” to be afforded more weight than a primary consideration “…there must be some identified reason, in the particular circumstances, as to why it is appropriate for the particular ‘other consideration’ to be given greater weight than one or more of the three primary considerations”.[60]

    [59] Schuster-McFadyen v Minister for Immigration and Citizenship [2011] FCA 1303 at [32].

    [60] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19 at [11].

15. In taking considerations into account, “appropriate weight” is to be given to information and evidence from independent and authoritative sources.[61] 

    Protection of the Australian community[62]

    [61] Direction 99, cl 7(1).

    [62] Direction 99, cl 8.1.

16. I turn now to the first of the primary considerations to be taken into account, the protection of the Australian community from criminal or other serious conduct. This consideration is one that requires the Tribunal to keep in mind the Australian Government’s commitment to the protection of the Australian community from harm as a result of such conduct by non-citizens, with particular regard being required to be had to the first of the framework principles previously identified (i.e. the principle about how there is a particular expectation engendered when conferring on non-citizens the privilege of entering and remaining in Australia).[63]

    [63] Direction 99, cl 8.1(1).

17. Taking this primary consideration into account requires that regard be had to two subsidiary considerations. They are the nature and seriousness of the applicant’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious conduct.[64]

    Nature and seriousness of conduct[65]

    [64] Direction 99, cl 8.1(2).

    [65] Direction 99, cl 8.1.1.

18. As for the nature of the applicant’s conduct to date, it has involved numerous offences committed over a long period (commencing in November 1995 and ending in 2021), albeit with significant gaps in convictions, such as between 2008 and 2014 and between 2014 and 2021.  As noted by both the respondent[66] and applicant,[67] the applicant’s offending generally falls into three categories; driving offences, offences relating to illicit drug use and offences involving violence.[68]

    [66] R SFIC [6].

    [67] A SFIC [25]-[26].

    [68] See the Australian Criminal Intelligence Commission check results report of July 2021 at RTB1, pp.46-8.

19. The more serious of the first two categories of offending involved:

    (a)Driving under suspension without a licence for which the applicant was sentenced in April 1996 to three months’ imprisonment.

    (b)Stealing a motor vehicle for which the applicant was in March 2002 made the subject of a six-month community-based order.

    (c)Driving under suspension without a licence for which the applicant was sentenced in August 2005 to two terms of imprisonment of six months and one day (six months of each of which was suspended).[69]

    [69] See RTB1, pp.47-8.

20. As for the applicant’s offences involving violence, they essentially arise out of four incidents in the course of each of which the applicant assaulted a person with whom he was then in, or had been in, an intimate personal relationship.[70] The applicant submits that the circumstances of this offending are as set out in a June 2022 decision of the Tribunal (the “June 2022 decision”).[71]

    [70] The applicant was convicted in January 2003 of assaulting a public officer but I infer it was not significant given that it only attracted a fine of $200.

    [71] A SFIC [27].

21. In respect of the first incident, the applicant was convicted in July 2006 of aggravated assault occasioning bodily harm and unlawful damage for which he was fined. In these reasons, the victim of the assault is called Ms V1.

22. In the June 2022 decision,[72] the incident was described by reference to a statement of material facts.[73]

    [72] See RTB2, pp.694-725.

    [73] Found at RTB1, pp.556-559.

23. According to that statement:

    The complainant and the accused have been in a relationship for about 2 and half months whereby they lived at separate addresses, but the accused would stay over at the complainant's home about 3-4 nights a week.

    On [date redacted] December, 2005 the complainant and the accused were drinking at [name redacted] until about 11.00pm when the complainant left and returned to her home at [redacted].

    About half an hour later the accused has left the tavern and attended at the complainant's address where he has knocked at the front door before opening a vertical sliding window (adjacent to the front door) and calling out.

    The complainant has attended at the front door and observed the accused attempting to climb through the open window so she opened the front door and let the accused into the hallway.

    The complainant and the accused have then began to argue about an incident that had occurred at the… earlier that evening and other personal issues about their relationship.

    During the argument the accused has pushed the complainant against a wall in the bedroom and threatened to headbut (sic) her before he has thrown the complainant against another wall and caused to fall onto her bed.

    The accused placed his hands around the neck of the complainant and picked her up so she was in front of him and they were facing each other. He has then head butted her several times causing a laceration to her lower lip that bled slightly and bruising to the area around her left eye.

    The accused forced the complainant to the floor and stood over her calling her a 'sook' and told her to stop crying…

    The complainant has attempted to close the front door but the accused prevented her from doing so and has again grabbed the complainant, dragged her outside and forced her onto the ground.

    The accused then stood over the complainant and told her he was going to gaol, before he took hold of her head and forced it several times onto the ground causing minor abrasions and bruising to her scalp and soreness to her back.

    At that point the behaviour of the accused changed and he allowed the complainant to get up off the ground, he told her he was sorry and that he loved her.

24. While before SM Morris (the Senior Member who made the June 2022 decision), the applicant accepted that he had pushed Ms V1 against a wall (and, before me, that he had thrown her on a bed), he denied having been in a domestic relationship with her, putting his hands around her neck and headbutting her or dragging her outside.

25. As for the second and third incidents involving violent offending by the applicant, in May 2014, he was convicted of assault occasioning actual bodily harm and common assault for which he was made the subject of a good behaviour bond requiring compliance with an apprehended violence order for 18 months. In these reasons, the victim of the assaults is called Ms SV.

26. In the June 2022 decision, the two relevant incidents were described by reference to a New South Wales Police facts sheet.[74]

    [74] RTB1, p.660.

27. According to that facts sheet:[75]

    The Accused…and …the Victim, …, have been in an intimate relationship for about 7 years. As a result of the relationship they share 2 children aged 2 and 4. Along with this, the Victim has twin thirteen year old sons from a previous relationship…

    On Friday the 27th of December 2013 the Accused and Victim were in the dining room at the above mentioned address. Here they have become involved in a disagreement about financial matters. Without warning the Accused has snapped and lunged at the Victim, grabbing her by the forearms and pushing her a few metres backwards from the dining room to the kitchen. The Accused has followed the Victim into the kitchen and pushed her for a second time with such force she has fallen to the ground. The Victim stood and attempted to leave, however the Accused has followed the Victim and grabbed her by the arms again. He pushed her forcefully out of the house and into the yard… As a result of that incident the Victim had bruising on both arms.

    On Saturday the 4th of January 2014, the Accused and Victim were in the rear yard of the above mentioned address. The thirteen year old twins swimming at the river nearby and the two youngest children in the household…

    the Accused was about 5 metres from the Victim. He has turned to face her, he had an opened bottle of beer in his hand. The Accused has thrown the glass bottle at the Victim missing her and began running towards her at speed. Upon reaching her the Accused immediately punched the Victim in the right side of the face with a closed fist. This was done with such force, the Victim fell to the ground. The Victim has put her right hand up over her face trying to protect herself and the Accused stood over the Victim and continued punching her to the right side of the head. The Victim cannot remember how many times she was punched, however stated it was a lot. The Victim was on the ground screaming in pain and yelling out for help.

    As a result of the assault the Victim has substantial bruising and swelling to the right eye, swelling and soreness to the right side of her head and jaw. The Victim has bruises on both shoulders. She has genuine fears for her safety.

    [75] RTB1, pp.527-8.

1. Before SM Morris, the applicant denied he had thrown a bottle at Ms SV but otherwise admitted the gist of the facts as outlined in the facts sheet. In particular, he accepted that “…he had been in a relationship with Ms SV for around seven years and that there were two incidents,.. He agreed that he lunged at Ms SV and pushed her, and that she fell to the ground. He agreed that he followed her and grabbed her by the arms… [He] agreed that he punched Ms SV with a closed fist, that she fell to the ground, and that he continued punching her multiple times. He agreed that Ms SV screamed for help.”[76]

   [76] RTB1, p.661.

2. As is apparent from the police facts sheet, Ms SV is the mother of Son 1 and Son 2.

3. As for the fourth incident involving violent offending by the applicant, in June 2021, he was sentenced by Murphy J of the Victorian County Court to a term of imprisonment of nine months followed by a nine-month community corrections order, having been convicted of recklessly causing injury. The matter was before Murphy J because the applicant had appealed to the County Court against a sentence of 15 months’ imprisonment imposed by a Victorian Magistrate in March 2021.

4. The incident was described in the sentencing remarks of both the Magistrate[77] and of Murphy J.[78] I adopt those remarks as an accurate reflection of the facts of the relevant offending. It is understood by the Tribunal that the applicant’s conviction in March 2021 and sentence in June 2021 were based, at least in part, on those remarks. I note that the victim of this offending was Ms TV, the applicant’s current partner.

   [77] RTB1, pp.49-60.

   [78] RTB1, pp.61-72.

5. Murphy J noted that:

   The circumstances of the offending were set out in the informant's statement. In brief outline, the appellant had been in a relationship with the complainant for around three months and had been living with her and her children for a shorter period. In the early hours of the morning of 7 February 2021, in the bedroom, he asked the complainant whether the relationship was over. She advised him that it was. She repeated that. At that point, he proceeded to punch the complainant a number of times in the head, causing injury to the face, jaw, and nose. She ended up on the floor from the assault, and the appellant then used his hands and placed them around her neck and started to choke her. She struggled for breath and kicked her legs out in desperation. After a short time, he stopped choking the victim. The victim attempted to escape from the bedroom, but the appellant was blocking the door, and she escaped through a window. She called the police and was transported to [name redacted] Hospital where CT scans revealed a nasal fracture and bruising to her face.[79]

   [79] RTB1, p.66.

6. The applicant denied certain of the peripheral facts. For instance, he said that the victim, Ms TV, did not say she wanted to end the relationship and that it was he, not Ms TV, who was asleep in bed prior to the altercation. Again, however, he otherwise admitted the gist of the facts as outlined in Murphy J’s sentencing remarks.

7. Each of the three victims of the four incidents of violent offending just outlined was a female who had been in an intimate relationship with the applicant.

8. I appreciate that the applicant denies that he had been in an intimate relationship with the first such victim, Ms V1.  The applicant having been in an intimate relationship with her was, however, a factual matter adverted to in sentencing remarks of the Victorian Magistrate before whom the applicant appeared in March 2021 and, as such, appeared to underlie the conviction and sentence imposed in respect of that offending.[80] 

   [80] The Victorian Magistrate who convicted the applicant in March 2021 also characterised the earlier victim as the applicant’s short-term partner (RTB1, pp.53, 57) and as having been in a relationship with the applicant (RTB1, p.50), and described the applicant’s offending against Ms TV in terms of its being reflective of a pattern or recurring theme (RTB1, p.51).

9. While underlying the conviction and sentence so imposed, that factual matter is not immune from challenge. This is because neither the 2021 conviction nor sentence imposed in respect of it is foundational to the Tribunal’s jurisdiction in this proceeding.[81] Nevertheless, to challenge that matter of fact successfully, there needs to be probative material before the Tribunal of a significance sufficient to overcome the evidential strength accorded to it by reason of that conviction and  sentence.[82]  I am not satisfied that the applicant’s uncorroborated denials are of the required significance.

   [81] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 at [56]. Cf Li v Minister for Immigration, Citizenship, Migrant Services and Multicultural [2022] FCA 1594 at [75]-[77], where an applicant sought to challenge certain facts relating to convictions which constituted the foundation for the Tribunal’s exercise of power. See also MBJY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 11 at [72].

   [82] Minister for Home Affairs v Sharma [2019] FCA 597 at [20]; Donnelly v Minister for Immigration and Border Protection [2019] FCA 798 at [46].

10. As for the seriousness of the applicant’s conduct, on his behalf, it was accepted that certain of his offending had been very serious.[83] He was right to do so.

    [83] This was accepted in the applicant’s closing address. Note also that it was acknowledged in the A SFIC (at [34]) that his offending was to be viewed very seriously.

11. A characterisation of at least certain of the applicant’s offending as very serious reflects that which was adopted by a Victorian Magistrate when convicting the applicant of recklessly causing injury in March 2021. The Magistrate described that offending as a “very serious form of family violence.”[84] When considered in the context of his December 2005 and early 2014 offending, the applicant’s 2021 offending was said by the Magistrate to represent “…a recurring theme of violence against women, violence against partners, and as I said the only description for the matter I'm dealing with today is savagery.”[85] It was “… at the highest end of seriousness for a charge such as this which is a reckless cause injury.”[86]

    [84] RTB1, p.57.

    [85] RTB1, p.58.

    [86] RTB1, p.52.

12. A characterisation of at least certain of the applicant’s offending as very serious is also consistent with the outcome of an assessment made in light of the factors to which I am required to have regard in the context of this consideration.

13. I turn now to a consideration of those factors.

    Without limiting the range of conduct that may be considered very serious, viewed very seriously by the Australian Government and the Australian community view are violent and/or sexual crimes, crimes of a violent nature against women or children and acts of family violence[87]

    [87] Direction 99, cl 8.1.1(1)(a).

14. A finding that the applicant’s offending was very serious reflects the view which the Australian Government and the Australian community are said in Direction 99 to have. As is apparent from the description earlier of that offending, it involved crimes of violence, crimes of a violent nature against women and (as will be elaborated upon later) acts of family violence.

    Without limiting the range of conduct that may be considered serious, the Australian government and the Australian community consider to be serious certain crimes and conduct[88]

    [88] Direction 99, cl 8.1.1(1)(b).

15. A crime against a government representative or official in the performance of their duties is a crime considered to be serious.

16. The applicant has committed such a crime, having been convicted in January 2003 of assaulting a public officer for which he was fined $200. At the hearing, the applicant described what had occurred as involving him grabbing a police officer by the officer’s shirt.

17. The respondent noted that the applicant has been convicted of certain other offences, such as misleading police and giving false names to police.[89] While this offending involved government representatives or officials, I do not consider them to be crimes against such representatives and officials.

    With the exception of certain crimes and conduct (such as crimes of a violent nature against women and acts of family violence), the sentence imposed by the courts for a crime or crimes[90]

    [89] R SFIC [37b].

    [90] Direction 99, cl 8.1.1(1)(c).

18. Excluding the applicant’s most recent offending which involved acts of family violence, the applicant has been the subject of three sentences of imprisonment, one imposed in 1996 and the second and third imposed in 2005.

19. In this regard, the imposition of any term of imprisonment reflects a view that the offence concerned was serious; “…[c]ustodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence(s)….”,[91] noting that sentences “…involving terms of imprisonment are the last resort in the sentencing hierarchy…”.[92]

    The frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness[93]

    [91] Vargas and Minister for Home Affairs (Migration) [2019] AATA 3409 at [34].

    [92] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].

    [93] Direction 90, cl 8.1.1(1)(d).

20. The applicant’s offending spans a period of around 26 years. There have, however, been substantial gaps in his offending in that period. Indeed, more recently and as submitted by the respondent, “the frequency of the applicant’s offending appears to have decreased over time.”[94] Moreover, while his most recent offending in 2021 was his most serious (as reflected in the sentence of 9 months’ imprisonment for that offending, his most severe sentence), I do not consider there to be any trend of increasing seriousness in the applicant’s offending.  A trend is not constituted simply by the applicant’s last offending being his most serious.

    The cumulative effect of repeated offending[95]

    [94] R SFIC [37d].

    [95] Direction 99, cl 8.1.1(1)(e).

21. The harm caused by the applicant’s offending is touched on later when discussing the nature of the harm that would be suffered were the applicant to engage in further criminal or other serious conduct. Subject to my comments on that harm, I am not satisfied on the material before me that his offending has had any cumulative effect.[96]

    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending[97]

    [96] I note that the second incident involving Ms SV in January 2014 did not have the effect of breaking up their relationship; it seems to have ended consequent on the first such incident in December 2013: RTB1, p.358.

    [97] Direction 99, cl 8.1.1(1)(f).

22. It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.

    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)[98]

    [98] Direction 99, cl 8.1.1(1)(g).

23. It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.

    Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia[99]

    [99] Direction 99, cl 8.1.1(1)(h).

24. It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.

    Risk to the Australian community should he commit further offences or engage in other serious conduct

25. I turn now to the second matter to which consideration must be given in the context of the protection of the Australian community primary consideration: the risk to the community should the applicant commit further offences or engage in other serious conduct.[100]

    [100] Direction 99, cl 8.1.2.

26. In assessing risk, I am required by Direction 99 to have regard, cumulatively, to:

    (a)the nature of harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and

    (b)the likelihood of him doing so taking into account information and evidence on the risk of him re-offending and evidence of rehabilitation achieved.[101]

    [101] Direction 99, cl 8.1.2(2).

27. I am also required to “…have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases…”. Indeed, the harm from some conduct may be so serious that any risk of its repetition is unacceptable.[102] 

    [102] Direction 99, cl 8.1.2(1).

28. In response to these requirements, the respondent appears to have submitted that any risk of the applicant repeating conduct of the type he has engaged in is unacceptable, given the potential harm from such conduct.[103]

    [103] R SFIC [39].

29. As for the applicant, he submits that “…the infrequent nature of his past offending is suggestive of lower risk.” This is coupled with an acknowledgement that “…the tolerance for any risk of future harm is low” given the seriousness of the harm that could be caused should there be any repetition of his past conduct.[104]

    [104] A SFIC [37].

30. As is apparent from those submissions, the parties accept that individuals could be significantly harmed were the applicant to engage in further criminal or other serious conduct. They were right to do so.

31. Informed by his history of offending, should the applicant re-offend, women with whom the applicant was or had been in a relationship would be likely to suffer physical harm (possibly very serious physical harm) as a result of being savagely attacked, including by being choked and punched. They might also suffer psychological harm consequent upon being physically harmed or rendered fearful of violent assault.

32. As to the nature of harm to the Australian community were the applicant to engage in further criminal or other serious conduct, again informed by his history of offending, it would reflect the nature of the harm suffered by individual members of the community as a result of that conduct. Further, the community would be harmed by having to devote scarce resources to meet additional law enforcement, incarceration and healthcare costs resulting from the applicant’s conduct.

33. As for the likelihood of the applicant engaging in further criminal conduct, I am not satisfied that it is likely that he would do so should he be released into the community. I do find, however, that the risk of him re-offending is significant.

34. Before delving into my reasons for this finding, I mention that the mere fact that the applicant has engaged in certain conduct in the past is not probative of there being a significant risk of him doing so again.[105]

    [105] See Kayo Rerekura and Minister for Home Affairs [2019] AATA 153 at [65]: “the mere commission of offences or offending conduct in the past is not, of itself, sufficient.”

35. According to Mortimer J in Splendido,[106] a “bare recitation of what a person has done in the past” is an insufficient basis for a finding as to the person’s likely future conduct. While, in some circumstances, the past may constitute a reliable guide to the future,[107] for it to do so, more than a mere outline of past conduct needs to be shown if over-valuing personality-based explanations and under-valuing situational-based explanations for conduct are to be avoided.[108] Included within that “more” are facts about the relevant person’s circumstances, or about the nature and circumstances of the person’s past conduct, that rationally support the assessment of the person’s risk of engaging in the relevant conduct.[109]

    [106] Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 at [77] per Mortimer J, Moshinsky J agreeing.

    [107] See, for example, Zyambo v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 545 at [26], where the Court was dealing with an applicant who “had an extraordinarily lengthy criminal history which was characterised by relapses into drug use, crime and periods of imprisonment. Although there were some periods of abstinence, Mr Zyambo was prepared to engage in further criminal offending even after warnings that his visa might be revoked were he to do so”.

    [108] See Hughes v R [2017] HCA 20 at [70]-[72] per Gageler J.

    [109] In Minister for Immigration and Ethnic Affairs v Guo WeiRong (1997) 191 CLR 559 at 574, it was said that the “…extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.” In Splendido at [78], it was said that the “…nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, of future offending. Also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for an assessment about the nature and extent of any risk of further offending.” In Hughes v R [2017] HCA 20 at [174], Nettle J (albeit in dissent) stated that “Evidence that an accused has committed an offence is not, of itself, significantly probative of the accused having committed another offence …To make evidence of previous offending or misconduct significantly probative of a subsequent offence there needs to be something more about the nature of the offences or the circumstances of the offending in each case, or about the victim of each offence, which rationally affects to some significant degree the assessment of the probability that the accused committed the offence.”

36. As I see it, facts concerning about the applicant’s circumstances and the nature and circumstances of his past conduct are supportive of an assessment of his risk of recidivism as being significant.

37. We are not here dealing with a singular offence or conduct so aberrant that there ought to be no expectation of its repetition. In this regard, in a different but analogous context, the plurality in DMQ20 noted that criminal “…behaviour properly described as aberrant or opportunistic might very conceivably be thought not to reflect a level of risk of repetition that is sufficient to constitute its perpetrator as a danger to the community. But the same might not be said of a recidivist offender—for example, one who has repeatedly partaken of criminal misconduct and presents as likely to embark upon similar misadventures in the future.[110] Here, in my respectful opinion appropriately, the applicant’s offending against women with whom he has been in a relationship has been characterised as part of a pattern or recurring theme.[111] This is suggestive of some character trait or condition that renders the applicant prone to engaging in the type of conduct of concern.

    [110] DMQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 84 at [141].

    [111] RTB1, pp.51, 58 (remarks of Victorian Magistrate before whom the applicant appeared in March 2021).

38. That suggestion is reinforced when regard is had to material before the Tribunal concerning the applicant’s mental health issues. As mentioned earlier, the applicant is said to suffer from ADHD and PTSD. In this regard, those conditions “…particularly adult ADHD are difficult to manage without medication and the impulsivity inherent in this condition can cause angry outbursts, impulsivity and repeat offending. It is known to be associated with low frustration tolerance, irritability, and mood lability. PTSD symptoms of arousal and reactivity also impact upon outcomes resulting in sudden, interpersonal confrontations, and anger.”[112] Similarly, features of ADHD are said to include low frustration tolerance while PTSD can lead to explosive anger and a loss of restraint[113] which, in the case of the applicant, have adversely affected his ability to self-regulate.[114]

    [112] RTB1, p.595 (supplementary assessment report of Ms Cidoni, psychologist, of 5 May 2022).

    [113] RTB1, pp.122, 130 (reports of Ms Cidoni of March 2021 and August 2021).

    [114] RTB1, p.599 (report of Ms Nielsen, psychotherapist, of 30 May 2022).

1. The mental health issues from which the applicant continues to suffer, and the consequent disinhibition and loss of control over his emotions and behaviours,[115] played a significant underlying role in his offending.[116] This suggests that the applicant’s mental health issues, of themselves, give rise to a material risk of recidivism, absent them being effectively addressed.[117] 

   [115] RTB1, p.130 (report of Ms Cidoni of August 2021).

   [116] RTB1, pp.122, 130 (reports of Ms Cidoni of March and August 2021).

   [117] Indeed, the Victorian Magistrate who addressed the applicant’s 2021 offending, stated that “… unless something changes persons are at risk of you reacting, especially if they are in an intimate relationship with you”: RTB1, p.59. Similarly, a psychiatric nurse engaged by The Victorian mental health advice and response service opined in June 2021 that the applicant required “ongoing mental health care to be made a requirement of a community based order for their mental health wellbeing or to help prevent offending”: RTB1, p.261-2.

2. Steps that might be taken by the applicant towards addressing those issues were identified by Ms Cidoni, a psychologist. In March and August 2021 reports, she referred to the potential for treatment by a psychiatrist to trial psychostimulants, specialised interventions to address alcohol and drug use and psychological therapy.[118]

   [118] RTB1, pp.122, 131.

3. On the material before me it does not appear that the applicant has trialled psychostimulants prescribed by a psychiatrist. He has, however, undertaken programs directed to addressing his illicit drug use (details of which I will get to shortly). As for psychological therapy, the applicant has engaged with a psychotherapist (Ms Neilsen),[119] who is said by Ms Cidoni to have reported making positive progress with the applicant.[120] In addition, he has undertaken various programs while in prison directed to behavioural improvement and, according to the applicant, his rehabilitation.[121] I mention a LINCS in families program[122] and anger management, family violence and parenting programs in which the applicant claims to have enrolled.[123]

   [119] RTB1, 599: the 30 May 2022 report of Ms Neilsen refers to weekly counselling since 10 May 2022.

   [120] Ms Cidoni’s May 2022 report at RTB1, p.597.

   [121] RTB1, p.83.

   [122] Completed in November 2021 involving a one-day practical workshop: RTB1, p.612, described at RTB1, p.621.

   [123] RTB, p.95.

4. The applicant’s evidence was to the effect that he has only limited access to services to address his mental health issues while in detention.[124] Despite this, while in detention he has pro-actively sought assistance by contacting and engaging with men’s health lines.[125] Moreover, he has expressed an intention (which I accept as being genuine) to continue to engage with his psychotherapist and with appropriate services and programs, once free in the community.[126] The necessity of the applicant giving effect to that intention is reflective of a requirement that his mental health care be “ongoing”.[127]

   [124] RTB, p.114 and statement from the applicant of 16 March 2023: “Being in detention I’ve had no access to the help I need.”

   [125] RTB1, p.594.

   [126] Statement from the applicant of 16 March 2023: “I plan on finding a GP who can work with me and direct me to the past I need, I have organised, continued work with my counsellor and have enrolled in a men’s behavioural program that comes highly recommended. I know that for this to never happen again, I’m going to have to continue working on myself and will continually seek help to better myself in the future.” Ms Neilsen is said to have reported in May 2022 positive progress with the applicant with a view to continuing with sessions with the applicant when free in the community: RTB1, p.597.

   [127] A psychiatric nurse engaged by the Victorian mental health advice and response service opined in June 2021 that the applicant required “ongoing mental health care to be made a requirement of a community based order for their mental health wellbeing or to help prevent offending”: RTB1, pp.261-2. Moreover, Ms Cidoni opined that the applicant’s risk of reoffending is mitigated if he is provided with the necessary ongoing help: RTB1, p.131. In May 2022, Ms Cidoni opined that the applicant should continue with weekly substance abuse counselling: RTB1, p.595.

5. The foregoing suggests that the applicant has taken steps in a legitimate effort to address his mental health issues. On the material before me, however, I am not satisfied that the steps so taken address those issues to an extent sufficient to render insignificant the chance of the applicant again engaging in behaviour of a type to which those issues give rise, being behaviour which materially heightens his risk of recidivism (such as behaviour involving impulsive conduct and bouts of sudden anger).

6. The applicant’s use of illicit drugs had made his engaging in behaviour of that type more likely or prevalent and also served to compromise his insight and judgment.[128] In this regard, I note that the applicant’s offending against Ms TV in 2021 occurred in a context in which he had been using methylamphetamine (ICE) for around a decade,[129] had been using it daily[130] and had been awake for four or five days.[131]

   [128] RTB1, pp.122, 130 (Ms Cidoni’s reports of March and August 2021). The applicant’s substance abuse exacerbated the symptoms of his mental health issues: RTB1, p.130.

   [129] RTB1, p.128.

   [130] RTB1, p.255.

   [131] RTB1, p.118.

7. The applicant now says, and I accept, that he has not used illicit drugs since being placed on remand in February 2021.[132] I also accept as sincere his expression of an intention to never again use illicit drugs.[133] Consistent with that intention, the applicant has sought details of services available to him on release into the community,[134] and taken advantage of a number of programs, that ought mitigate the risk of his relapse into drug use. In terms of programs undertaken I note, for instance:

   (a)The applicant’s completion in June 2021 of a 30-hour alcohol and other drug program when he apparently learned cognitive exercises to overcome cravings.[135]

   (b)The applicant’s completion in 2021 of an individually delivered program called “Know the Score.”[136]

   (c)An April 2022 letter outlining drug and alcohol treatment sessions undertaken by the applicant. At the time of the letter, he was said to have attended in March and April 2022 seven of eight sessions, with a further five sessions forecast. In those sessions the applicant was described as being “…a consistently punctual client who engages appropriately throughout sessions… [The applicant]… has demonstrated insight into factors contributing to the development and maintenance of his past drug use, identified previous triggers and he has reported implementing coping techniques discussed in treatment to manage cravings.[137]

   [132] RTB11, pp.1204-5.

   [133] Such an intention was expressed in both the applicant’s oral evidence and written material. For instance, in his March 2023 statement he said that “I can honestly say that drugs will never be a part of my life again and use what I’ve done as my main incentive never to go down that path again”.

   [134] In April 2022, the applicant obtained from Caraniche details of a range of services and programs that might be available to him once free in the community: RTB1, pp.617-8.

   [135] RTB1, pp.109, 150.

   [136] RTB1, pp.152, 613.

   [137] RTB1, pp.619-20.

8. Despite the applicant’s lengthy abstention from illicit drug use and his engagement with appropriate drug and alcohol services and programs, it nevertheless remains the case that the applicant’s capacity to remain drug-free when in the community has not been tested.  The applicant has been forthright in acknowledging that being free in the community will bring with it various challenges: “I understand that life outside in the community will put pressure on me that might be different from being in jail or detention and that I will need to have support and proper coping skills.”[138] I note that, presumably to assist the applicant in addressing those challenges, Ms Cidoni recommends that the applicant engage with weekly substance abuse counselling when free in the community.[139] No doubt those challenges are not made any easier by the fact that the applicant’s illicit drug habit is one of long standing,[140] involving the use of a particularly pernicious drug, ICE.[141] Indeed, the difficulty they pose would be compounded were Ms TV, the woman who the applicant intends to marry, to be using illicit drugs such as ICE. Of concern in this regard is the applicant’s evidence to the effect that Ms TV, while not then a regular user, did, on occasion, use ICE with him before his arrest in February 2021.

   [138] RTB1, p.589 (statement of 5 May 2022).

   [139] RTB1, p.595 (May 2022 report).

   [140] The applicant’s evidence was that he had started using illicit drugs when aged 15. The Magistrate who sentenced the applicant in March 2021 noted that the applicant “…was diagnosed with ADHD at age 14 and he was treated with Ritalin from the age of 14 to 15. He was drinking heavily and using amphetamines by age 15 and methamphetamines in the last decade… Substance provided precarious solace and escape from his uncomfortable state but also exacerbated his symptoms”: RTB1, p.58.

   [141] The applicant’s evidence was that he had been using ICE for around a decade.

9. The applicant has a number of pro-social supports that might be said to mitigate the risk of him re-offending. In particular, on his release into the community, the applicant would appear to have arranged supports in the nature of accommodation[142] and employment.[143] In addition, he will have familial (albeit geographically remote) supports, especially from his parents and Daughter 1 (supports on which I will elaborate when discussing the applicant’s links to Australia).

   [142] Ms TV’s mother is said by Ms TV to offer to have him live with her on release: see Ms Cidoni’s August 2021 report at RTB1, pp.125-6.

   [143] See email from a former employer of the applicant of 28 April 2022 in which it is said that he would give the applicant full time employment: RTB1, p.614.

10. While supports of this nature ameliorate risk, they are not new in the sense that they were largely in place when the applicant offended in 2021.[144] Not having prevented the applicant from offending then does not inspire confidence that they would now do so.  

    [144] I appreciate that Daughter 1, together with Grandson 1 and Grandson 2, intend to move to the east coast of Australia to be closer to the applicant, which should enhance her capacity to provide support to her father, the applicant.

11. In addition, the applicant will have the support of Ms TV. Again, however, he had that support when he offended in 2021. Moreover, whether that support is pro-social depends very much on whether Ms TV has ceased to use illicit drugs (noting the applicant’s evidence mentioned earlier to the effect that Ms TV had been an occasional user of ICE before he was placed on remand in February 2021).

12. Lastly, a person genuinely remorseful for having engaged in certain types of conduct is less likely to repeat conduct of that type. In this regard, I accept as genuine the applicant’s expressions of remorse and regret for his offending (particularly in relation to Ms TV).[145]

    [145] I note that Ms Cidoni opined that the applicant presented as genuinely remorseful: RTB1, pp.122, 130. In the applicant’s March 2023 statement, he said that his “recent behaviour has really disgusted me what I did is unforgivable.”

13. Ms Cidoni stated in an August 2021 report that the applicant had scored 5 when assessed using a particular risk assessment tool, the Ontario Domestic Assault Risk Assessment.  That result seemed to have placed him in a particular cohort less than half the members of which “…committed another assault against their partner (or, in some cases, a future partner) that comes to the attention of the police within an average of about 5 years.” I do not attribute significant probative value to that assessment. Cohort evidence of that type does not directly address the question in issue. It “…says nothing about the likelihood of a particular member in the cohort reoffending.”[146] In any event, whatever might be taken from that assessment, it is not one suggestive of the applicant being a low risk of re-offending.

    [146] Aitchison v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 357 at [45].

14. Also not suggestive of the applicant being a low risk of re-offending is the conclusion in a June 2021 community correction order assessment report that his re-offending risk was medium.[147]

    [147] RTB1, pp.263-4.

    Protection of the Australian community: conclusion

15. The applicant has engaged in very serious offending. If he were to re-offend, the resultant harm could be very significant.

16. Given the seriousness of that potential consequent harm, there should, as the applicant submits, be a low level of tolerance for any risk of the applicant re-offending. As I assess it, however, that risk is significant.

17. In these circumstances, the protection of the Australian community consideration weighs against finding that there is another reason for revocation of the visa cancellation decision, and it does so to a significant extent.

    FAMILY VIOLENCE

18. The second of the primary considerations concerns family violence. It is of relevance in this proceeding because the applicant has been convicted of offences that involve family violence.[148]

    [148] Direction 99, cl 8.2(2)(a).

19. The applicant accepts that his offending in 2014 and 2021 involved family violence.[149] He was right to do so. In addition, however, his offending in 2005 also involved family violence given my finding that Ms V1 had been in an intimate relationship with the applicant. More particularly and as described earlier, each of his offending against Ms V1 in 2005, his offending against Ms SV in 2013 and 2014[150] and his offending against Ms TV in 2021 involved “violent, threatening or other behaviour by …[the applicant] that coerces or controls a member of the …[applicant’s] family”.[151] Each of Ms V1, Ms SV and Ms TV was a member of the applicant’s family. Each of them had “an intimate personal relationship” with the applicant.[152]

    [149] A SFIC [40].

    [150] Not put to the applicant was other conduct of the applicant in relation to Ms SV that might have been considered to constitute family violence, comprised of conduct of the applicant that caused Ms SV to be fearful. Reference is made to the discussion later concerning the two apprehended domestic violence orders against the applicant in relation to Ms SV.

    [151] Direction 99, cl 4(1) definition of “family violence”.

    [152] Direction 99, cl 4(1) definition of “member of the person’s family”.

20. In Direction 99, the Australian government is said to have serious concerns about conferring on a non-citizen who engages in family violence the privilege of remaining in Australia. The seriousness of those concerns in this proceeding is proportionate to the seriousness of the family violence engaged in by the applicant.

21. In assessing the seriousness of the family violence engaged in by the applicant, I am required by Direction 99 to consider, where relevant, certain factors.[153] I do so now.

    Frequency of conduct engaged in by the applicant conduct and/or whether there is any trend of increasing seriousness

    [153] Direction 90, cl 8.2(3)(a)-(d).

22. The applicant has not engaged in family violence frequently. His family violence offending occurred in 2005, at the end of 2013 and beginning of 2014, and in February 2021.

23. As stated earlier, while his most recent family violence offending in 2021 was his most serious (as reflected in the sentence of 9 months’ imprisonment for that offending, his most severe sentence), I do not consider there to be any trend of increasing seriousness in the applicant’s offending.

    The cumulative effect of repeated acts of family violence

24. Subject to my earlier comments when discussing the nature of the harm that would be suffered were the applicant to engage in further criminal or other serious conduct, I am not satisfied on the material before me that the applicant’s offending has had any cumulative effect.

    Rehabilitation achieved since last known act of family violence

25. Considering rehabilitation in this context also requires that regard be had to the extent to which the applicant accepts responsibility for his family violence-related conduct, the extent to which the applicant understands the impact of his behaviour on the victims of it and on any witnesses to it and any efforts to address factors which contributed to his conduct.

26. Having regard to these factors, I find that the applicant has taken substantive steps towards rehabilitation.

27. On behalf of the applicant it was submitted that “…he accepts responsibility for his family violence related conduct... understands and regrets the impact of his behaviour on the victims of the abuse and witnesses of that abuse, and…is seeking to engage in a men’s behavioural change program with a view to gaining further insight and understanding…” and has taken a number of steps to address his addiction to drugs.[154] I accept the gist of that submission.

    [154] A SFIC [40].

28. The applicant generally accepts responsibility for his family violence-related conduct. While he denies aspects of his offending in relation to Ms V1, I do not see this as reflective of any endeavour to avoid responsibility for his conduct generally. He does not seek to deny the gist of his offending against either Ms SV or Ms TV and his expressions of remorse for that conduct are, I find, genuine.

29. The applicant’s understanding of the impact of his conduct on his victims is apparent from that remorse and from the courses and treatment he has undertaken and proposes to undertake when free in the community. As mentioned earlier, he has engaged with a psychotherapist and, while in prison, has undertaken various programs directed to behavioural improvement. While programs in detention might be limited (as is the case, according to the applicant), he has pro-actively sought assistance by contacting and engaging with men’s health lines and expressed his intention (which I accept as being genuine) to continue to engage with his psychotherapist and with appropriate services and programs (including a men’s behaviour change program[155]), once free in the community.

    Whether the applicant has re-offended since being formally warned, or since otherwise being made aware by a court, law enforcement or other authority, about the consequences of further acts of family violence

    [155] Apparently, this involves a 40-hour, 20 session anger management program with a focus on interpersonal relationships and family violence: RTB1, p.595. 

30. It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.

    Other factors

31. It might be suggested that the Tribunal ought not harbor serious concerns about the applicant’s family violence once the seriousness of that violence is considered in light of the factors to which regard is required to be had. That might be so if that violence was to be considered only in the light of those factors.  As I see it, however, there are at least two other factors of relevance in assessing the seriousness of that violence.

32. The first other factor concerns the nature of the violence. It was serious, involving punching and choking. Indeed, I note that the Victorian Magistrate who sentenced the applicant in March 2021 for his offending against Ms TV characterised what had occurred as a very serious form of family violence.[156] Secondly, the family violence engaged in was not a singular, exceptional event but reflected a pattern of behaviour. That, to my mind, elevates its seriousness.

    [156] RTB1, p.57.

    Family Violence: conclusion

1. The only direct evidence of the views of any of the relevant children is that reflected in an undated letter of Son 1 to which reference was made earlier. In it, he speaks of his love for his father and of Son 2 having had nightmares about the applicant not coming home.    

   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[233]

   [233] Direction 99, cl 8.4(4)(g).

2. It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.

   Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct[234]

   [234] Direction 99, cl 8.4(4)(h).

3. It has not been contended, and nor does the material before me suggest, that this factor is of relevance in this proceeding.

   Conclusion

4. In my determination, non-revocation of the visa cancellation decision is not in the best interests of any of the relevant children. Hence, the consideration concerning their best interests weighs in favour of me being satisfied that there is another reason to revoke the decision to cancel the applicant’s visa.

5. The weight I attribute to this consideration is significant. I do so primarily because the applicant’s removal to New Zealand would be likely to have a significant adverse impact on each of Son 1 and Son 2 and would also have an adverse impact (albeit to a lesser extent) on each of Grandson 1 and Grandson 2.

   EXPECTATIONS OF THE AUSTRALIAN COMMUNITY[235]

   [235] Direction 99, cl 8.5.

6. The expectations of the Australian community consideration constitutes the fifth and last of the primary considerations.

7. The respondent submits that this consideration weighs strongly against revocation of the visa cancellation decision.[236]

   [236] R SFIC [62].

8. As understood by the Tribunal, the respondent’s submission appeared to be based on a contention that a particular community expectation provided for in cl 8.5 of Direction 99 applies in the circumstances.[237]

   [237] Direction 99 specifically states that the Australian community would expect that a person should not continue to hold a visa if the character concerns are through conduct of the kind of family violence, crimes against women and commission of crimes against officials: [8.5(2)(a), (c) and (d)]. The applicant has engaged in these kinds of offences.: R SFIC [61].

9. Stepping back from that contention for a moment, it is worth noting that the enquiry which the expectations of the Australian community consideration engenders does not concern what the Australian community expects in fact but, rather, concerns what the Government deems the community’s expectations to be. Decision makers, including the Tribunal, are required to proceed on the basis of the Government’s views as to those expectations, as expressed in the relevant provisions of Direction 99 and without independently assessing community expectations.[238] The content of any such deemed expectation is, accordingly, to be discerned by construing the relevant provisions of Direction 99.[239]

   [238] Direction 99, cl 8.5(4).

   [239] FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [68]. See also Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68 at [24]; [33].

10. A construction of cl 8.5 of Direction 99 gives rise to at least two potentially relevant community expectations. As already noted, the respondent places reliance on one of those expectations, in particular. That expectation is derived from cl 8.5(2) of Direction 99. It provides that:

    “In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. 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

    …

    (c)   commission of serious crimes against women…; in this context, ‘serious crimes’ include crimes of a violent…nature…”

11. The respondent contends, correctly, that the applicant has engaged in conduct involving acts of family violence and has committed crimes of a violent nature against women. On that basis it is submitted that the community would expect that the applicant not continue to hold a visa.

12. I do not accept the construction of cl 8.5(2) inherent in the respondent’s submission. The latter part of cl 8.5(2) particularises the circumstances in which the Australian community expectation identified in the first part of the clause arises. Hence, and for instance, mandatory cancellation of a visa so that a person would not continue to hold a visa would be expected where the offences are of a such a nature as to raise serious character concerns through, say, acts of family violence or the commission of crimes of a violent nature against women.

13. The approach found in cl 8.5(2) to particularising the expectation that arises by reason of the inherent nature of certain offending or conduct is reflected in the principles found in Direction 99, which both inform and comprise the framework within which considerations (such as the expectations of the Australian community consideration) are to be taken into account. 

14. As identified earlier, one such principle provides that:

    “In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community”[240]

    [240] Direction 99, cl 5.2(6).

15. As expressed, the words of that principle reflect a clear intention that conduct mentioned in cl 8.5(2) be considered to be of such a nature that even strong countervailing factors “may be” insufficient to justify, amongst other things, revocation of a mandatory cancellation decision. That intention is expressed in the principle and given effect in cl 8.5(2).

16. On the respondent’s construction of cl 8.5(2), the expectation provided for in it may apply simply to any offending involving acts of family violence or violence against women. This is not the case. Under the clause offending of that nature only gives rise to the expectation provided for in the clause if serious character concerns are raised through the offending. It is not enough to engage in conduct of the relevant kind. If it were, there would be no need for the requirement that serious character concerns be raised.

17. I am not satisfied that serious character concerns were raised through the applicant’s conduct in question. There is no definition in Direction 99 of what constitutes a serious character concern. It would, however, appear to be a concept tied to the character test found in s 501 of the Act. In this regard, on the material before me, I am not satisfied that the applicant’s acts of family violence and offending involving violence against women would result in the applicant being considered to not pass that test. For instance, a person does not pass that test if, amongst other things, the person is considered to have a substantial criminal record. A person will have such a record if sentenced to a term of imprisonment of 12 months or more. The applicant’s conduct now in question did not attract such a sentence.

18. Accordingly, I do not find that the Australian community is taken to expect that the applicant not continue to hold a visa by reason of cl 8.5(2) of Direction 99.

19. Another Australian community expectation reflected in cl 8.5 of Direction 99 is, however, to similar effect to that found in cl 8.5(2). In particular, in cl 8.5(1), it is said that the Australian community expects non-citizens to obey Australian laws while in Australia and that, where a non-citizen has engaged in serious conduct in breach of this expectation or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow them to enter or remain in Australia.

20. In breach of the expectation that he, as a non-citizen, obey Australian laws, the applicant’s offending saw him engage in what constitutes serious conduct for the purposes of Direction 99.[241] Indeed, the Australian community is taken to view conduct of the type in which the applicant engaged as not only serious but very serious.[242] Hence, as a “norm”, the Australian community is taken to expect that the applicant not be allowed to remain in Australia. Whether that expectation applies in the circumstances, therefore, depends on whether the “norm” is displaced.

    [241] Noting that the concept of “serious conduct” is simply defined in Direction 99 inclusively so as to include certain non-criminal conduct: cl 4(2).

    [242] Noting that crimes of violence are said to be regarded as very serious by the Australian Government and the Australian community: Direction 99, cl 8.1.1(1)(a).

21. I do not consider the “norm” to be displaced in the circumstances. For it to have been displaced, much would be required to distinguish the applicant’s circumstances from those which might reasonably be expected to be encompassed within the “norm”. While everyone’s circumstances are to an extent unique, I am not satisfied that the applicant’s circumstances are such as to warrant a conclusion that the community’s normal expectation is inapplicable to him.

22. In the result, the Australian community is to be taken to expect that the applicant not be allowed to remain in Australia. Revoking the visa cancellation decision and thereby releasing the applicant into the community would be inconsistent with the expectation.

23. Hence, the expectations of the Australian community consideration weighs against revocation of the visa cancellation decision, as it almost inevitably always will.[243] The weight to be attributed to the consideration, however, depends on what is appropriate in “the particular circumstances”.[244]

    [243] Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68 at [33].

    [244] FYBR v Minister for Home Affairs (2019) 272 FCR 454 at [101]-[102].

24. On behalf of the applicant and in reliance on the principle found in cl 5.2(5) of Direction 99,[245] it is contended that the consideration ought to be given limited weight because the applicant has lived in Australia since he was a young child. I accept that contention insofar as doing so operates to ameliorate the weight that might otherwise be attributed to the consideration. Indeed, other circumstances similarly so operate.[246] In this regard, I also refer to the significant links the applicant has to members of the Australian community and to the children whose best interests are served by revocation of the visa cancellation decision.

    [245] It will be recalled that under that principle “Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.”

    [246] See, for example, Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 559 at [75]-[78].

25. The ameliorating effects of these circumstances are, however, offset to an extent by other circumstances. I have in mind here the very serious offending that the applicant engaged in, the significant risk of him re-offending and the significant harm likely to ensue should he re-offend. 

    Conclusion

26. The consideration concerning the expectations of the Australian community weighs against me being satisfied that there is another reason to revoke the visa cancellation decision. I attribute moderate weight to this consideration.

    OTHER CONSIDERATIONS[247]

    [247] Direction 99, cl 9.

27. The considerations which I am required by Direction 99 to take into account are, as mentioned earlier, divided into primary and other considerations.

28. The other considerations are defined to include but not be limited to a consideration of legal consequences of the decision; extent of impediments if removed; impact on victims; and impact on Australian business interests.[248] 

    [248] Direction 99, cl 9(1).

    Legal consequences of decision

29. Clause 9.1(1) of Direction 99 requires decision-makers to be:

    “…mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.”

30. The applicant is a citizen of New Zealand. The material before the Tribunal is not suggestive of Australia’s non-refoulement obligations being engaged in respect of the applicant and nor has any claim been made that they are. Moreover, the applicant acknowledges that he has “no prima facie entitlement” to a protection visa.[249]

    [249] A SFIC [48]: noting that as stated in cl 9.1(2) of Direction 99 “the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations”.

31. In these circumstances, a decision not to revoke the visa cancellation decision would render the applicant unable to apply for any other Australian visa,[250] and, as indicated in cl 9.1(1), “…liable to removal from Australia as soon as reasonably practicable in the circumstances specified in …[section 198 of the Act], and in the meantime, detention under section 189.”

    [250] Act, s 501E. This does not apply to a Bridging R (Class WR) visa which the Tribunal understands is only issued when application is made at the invitation of the respondent: see s 501E(2)(b) and Migration Regulations 1994, reg 2.12AA.

32. On the other hand, a decision to revoke the visa cancellation decision would restore the applicant’s visa and the right to remain in Australia provided for by it. It would also facilitate his release from detention.

    Conclusion

33. I have had regard to the legal consequences of a decision in this proceeding, whether it be to revoke or not to revoke the visa cancellation decision. Those consequences have, to an extent, informed the approach of the Tribunal in relation to certain of the other considerations to which the Tribunal is required by Direction 99 to have regard. In seeking to come to the correct or preferable decision in this proceeding, however, those consequences of themselves weigh neither in favour of nor against any particular decision. Simply, they are what they are.

    Extent of impediments if removed

34. If relevant, Direction 99 requires that consideration be given to the extent of any impediments that the applicant may face if removed from Australia to New Zealand, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of New Zealand), taking into account his age and health, whether there are substantial language or cultural barriers and any social, medical and/or economic support available to him in New Zealand.

35. I find that the applicant is likely to face difficulties in establishing himself and maintaining basic living standards were he to be removed to New Zealand. He would need to find a place to live, seek employment and gain access to governmental services and supports (for example, in order to continue with his current medication for depression). Subject to my comments later concerning the applicant’s mental health disorders and a lack of family support, however, those difficulties are likely to be only transitional.

36. Neither the applicant’s age nor, subject to my comments later concerning his mental health disorders, his health would constitute a material impediment to him establishing himself and maintaining basic living standards in New Zealand. He is 45 years old and, as such, young enough to be able to continue to work in the areas in which he had continued to find work prior to his incarceration in 2020.[251] Moreover, the applicant appears generally to be in good health (again, subject to my comments concerning the applicant’s mental health disorders).

    [251] For example, at RTB1, p.614, reference is made to the applicant working as a heavy vehicle diesel mechanic and interstate truck driver.

37. Similarly, there are no substantial language or cultural barriers which would impede the applicant in establishing himself and maintaining basic living standards in New Zealand.

38. As for social, medical and/or economic support available to the applicant in New Zealand, it would be that which is generally available to other citizens of New Zealand.

39. The applicant submits that he would be impeded by a lack of a support network in New Zealand, in combination with his mental health disorders.[252] 

    [252] A SFIC [59].

40. In terms of a support network, I accept the applicant’s evidence to the effect that he knows no-one in New Zealand. Both Ms AM[253] and Daughter 1[254] corroborated that evidence. While the applicant has two uncles and three aunts living in New Zealand, he says, and I accept, that he does not know them.

    [253] Undated statement of Ms AM in which she said that the applicant “has no ties with NZ”.

    [254] Statement March 2023 of Daughter 1 in which she said that that applicant has, in New Zealand, “no-one, no support system, no family”.

41. Having a family-based support network available is of great importance to the applicant and, hence, its absence would, I find, be keenly felt by him. His family, he says, is his world,[255] an integral part of his life.[256]

    [255] The Applicant’s March 2023 statement.

    [256] RTB1, p.94.

42. I accept that removing the applicant to New Zealand and thereby severely impairing any opportunity for him to interact physically with his family is likely to cause a worsening of the mental health disorders from which the applicant suffers.[257] The author of several of the psychological reports before me in this proceeding, Ms Cidoni, characterised the applicant’s family support  as “vital.”[258] Ms Cidoni went on to opine that the applicant commencing “…life in a country he left at age 3 means he has no support networks or close friends, and this will be challenging for him because of his mental illness.” The applicant’s evidence was to the effect that would not be able to cope in the absence of a family support network.[259]

    [257] As will be recalled the applicant has been diagnosed as suffering from ADHD, PTSD and major depression and generalised anxiety and is currently prescribed medication for depression.

    [258] RTB1, p.595 (May 2022 report).

    [259] RTB1, pp.83, 98.

43. The applicant should have available to him treatment for his disorders equivalent to the treatment for such disorders available to other New Zealand citizens. Indeed, the respondent contended that it should “be readily accepted” that the applicant will be eligible for health services of a standard comparable to those available in Australia.[260] The applicant’s submission that his mental health disorders would worsen on removal to New Zealand is not, however, addressed by a contention concerning the quality of the treatment available in New Zealand for such disorders. 

    [260] R SFIC [63].

1. The applicant’s removal to New Zealand might also adversely affect the applicant’s mental health disorders by disrupting the relationship he has established with health services providers (such as Ms Neilsen) and requiring that new such relationships be established. According to Ms Cidoni, “[d]isconnection of the current therapeutic supports will be a major backward step.”[261]

   [261] May 2022 report: RTB1, p.596.

2. While I consider a worsening of the applicant’s mental health disorders to be a likely result of his removal to New Zealand I was not taken to, and unable to locate in the material before me, any medical evidence addressing the extent of any such worsening or of the impact it would have on the applicant’s capacity to establish himself and maintain basic living standards. 

   Conclusion

3. This consideration concerning impediments to be faced by the applicant on removal to New Zealand weighs in favour of there being another reason to revoke the visa cancellation decision. It does so, however, only to a slight extent.

   Impact On Victims

4. If relevant in the circumstances, Direction 99 requires that consideration be given to the impact of a decision to revoke the visa cancellation decision[262] on members of the Australian community, including victims of his criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the applicant has been afforded procedural fairness.

   [262] In cl 9.3 of Direction 99, the concept employed is of a “s 501CA decision”. That section only provides for one decision, a decision to revoke a visa cancellation decision. In its terms, it does not encompass a decision to not revoke a visa cancellation decision. In cl 9.4 of Direction 99, however, the reference to a decision under 501CA is clearly intended to encompass a decision not to revoke a visa cancellation decision.  In CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 at [23], the analogous provision in a predecessor of Direction 99 was construed, however, in a way that directed consideration only to a decision to revoke a visa cancellation decision.

5. Ms TV is one of the victims of the applicant’s criminal behaviour. Hence, her children are family members of a victim of such behaviour.

6. Elsewhere in these reasons I have made findings that suggest that revocation of the visa cancellation decision would have a positive impact on Ms TV and certain of her children. For example, in discussing the applicant’s links to the Australian community, I found that non-revocation of the visa cancellation decision would have a significant adverse impact on Ms TV by depriving her of the potential to benefit from the emotional and other support that the applicant might offer as her partner. In particular, that removal would, I found, imperil the significant financial support which the applicant, as Ms TV’s partner, would likely be able to provide Ms TV. In discussing the best interests of certain of Ms TV’s children earlier, I also found that non-revocation of the visa cancellation decision would result in them losing an opportunity to benefit from their mother being in a stable married relationship and the consequent (albeit probably only partial) relief from the struggles which, I infer, are experienced by those of Ms TV’s children who live with her.

7. Those findings address the impact likely to be felt by Ms TV in her capacity as the applicant’s partner and likely to be felt by certain of Ms TV’s children in their capacity as members of the family of the applicant’s partner. A victim can be heard whether the victim’s evidence weighs in favour of or against[263] non-revocation of the visa cancellation decision. However, where the victim’s evidence relates to more than one consideration, the Tribunal is not required to take it into account repetitiously.[264] In this context, I accept the respondent’s submission that, when addressing the impact on victims consideration, regard need only be had to Ms TV’s evidence insofar as it was given in her capacity as a victim of the applicant. Certain of her evidence was, I consider, given by her in that capacity.

   [263] PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235 at [24].

   [264] Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 at [26] per Perram J: “Where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously”.

8. Ms TV stated that she had forgiven the applicant and that she was not afraid of him.[265] That is precisely the sort of evidence which Perram J in Bale indicated may be of relevance in the context of the impact on victims consideration.[266]  Ms TV’s evidence to the effect that, as she saw it, the applicant’s removal from Australia would be excessive punishment for his offending against her was also evidence given by her as a victim of that offending.

   [265] RTB1, p.147.

   [266] Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 at [27], cited with apparent approval in DKN20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 97 at [43].

9. Offset against Ms TV’s evidence, however, is evidence of the impact which a decision to revoke the visa cancellation decision might have on another victim of the applicant, Ms SV.

10. In September 2016, Ms SV was said by police in New South Wales to have demonstrated “genuine fear” of the applicant.[267] This was repeated in January 2021 when police in New South Wales characterised Ms SV as being extremely fearful of the applicant.[268] 

    [267] RTB1, p.375.

    [268] RTB1, p.385.

    Conclusion

11. I find that the impact on victims consideration weighs neither in favour nor against finding that there is another reason to revoke the visa cancellation decision.

    Impact on Australian business interests

12. If relevant in the circumstances, Direction 99 requires that consideration be given to any impact on Australian business interests if the applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under s 501CA of the Act would significantly compromise the delivery of a major project or important service in Australia.[269]

    [269] Direction 99, cl 9.4(1).

13. The applicant concedes that delivery of a major project or important service in Australia would not be significantly compromised by his removal to New Zealand.[270]

    [270] A SFIC [61].

14. This is not to suggest that his removal from Australia would not have some adverse effect on Australian business interests other than because of an employment link.[271] In this regard, reference is made to a May 2022 letter from a former employer of the applicant. In it, the applicant was said to have “good skill levels in the Heavy Vehicle Repair industry as a technician.” The letter’s author went on to say that this “…industry at present has a massive skill shortage and certainly is in need of people with the Skill levels …[the applicant] is capable of.”

    [271] In Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311, Rangiah J, at [68] stated that the “… requirement is to consider any impact on Australian business interests. The requirement is not confined to business interests of a particular scale or importance.”

    Conclusion

15. Given that evidence of a skills shortage, I find that this consideration weighs in favour of finding that there is another reason to revoke the visa cancellation decision. It does so, however, only to a slight extent noting that any skills shortage would not be significantly affected by making available the services of one qualified tradesman.  

    Conclusion as to Other Reasons for Revocation

16. The respondent called on the principle set out in cl 5.2(6) of Direction 99 and contended that, even if there were strong countervailing considerations in this proceeding, they would be insufficient to justify revocation of the visa cancellation decision. As will be recalled, under that principle, even strong countervailing considerations “may be insufficient in some circumstances” to justify revoking a mandatory cancellation where the person concerned has engaged in conduct of the type mentioned in paragraph 8.5(2) of Direction 99.

17. I do not accept that contention. The applicant has engaged in conduct of the type mentioned in paragraph 8.5(2) of Direction 99 (such as family violence). That, of itself, however, does not mean that any strong countervailing considerations ought to be considered insufficient to justify revocation of the visa cancellation decision. The basis for concluding that any countervailing considerations ought to be considered insufficient in this proceeding was not identified.

18. In considering whether there is another reason for revocation of the decision to cancel the applicant’s visa, my conclusions in relation to the various considerations to which I have had regard (including those to which Direction 99 requires that I have regard) do not point in a uniform direction.

19. In particular, in the circumstances of this matter, and ignoring those considerations which I have found not to be relevant or to weigh neutrally:

    (a)weighing in favour of a conclusion that there is not another reason for revocation of the visa cancellation decision are three of the primary considerations, being the considerations concerning protection of the Australian community from criminal or other serious conduct (to a significant extent), family violence (to a moderate extent) and expectations of the Australian community (to a moderate extent).

    (b)weighing in favour of a conclusion that there is another reason for revocation of the visa cancellation decision are the primary considerations concerning the strength nature and duration of the applicant’s ties to Australia (to a significant extent) and the best interests of minor children in Australia (to a significant extent), and other considerations concerning the extent of impediments if removed from Australia (to a slight extent) and impact on business interests in Australia (to a slight extent).

20. It is clear from what has just been said that the decision in this proceeding is finely balanced. Overall, however, I am satisfied that there is another reason to revoke the visa cancellation decision. The three primary considerations that weigh against being so satisfied (only one of which is attributed significant weight) are overborne by the combination of the considerations that weigh in favour of being so satisfied, being two primary considerations (each attributed significant weight) and two of the other considerations (albeit each only being attributed slight weight). This is in a context where the applicant has been in Australia since he was a young child, has strong links to the Australian community and would appear to have made some positive contributions to the community.

    Decision 

21. As I stated at the beginning of these reasons, in this proceeding, the task for the Tribunal is to decide whether it is satisfied that the applicant passes the relevant character test or that there is another reason why the visa cancellation decision should be revoked.

22. I am not satisfied that the applicant passes the character test.

23. I am, however, satisfied that that there is another reason why the visa cancellation decision should be revoked.

24. Hence, the Tribunal sets aside the respondent’s delegate’s decision in March 2022 not to revoke the visa cancellation decision. In substitution, the Tribunal decides to revoke that visa cancellation decision.

I certify that the preceding 274 (two hundred and seventy-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell

........................[SGD]................................................

Associate

Dated: 12 July 2023

Dates of hearing:	18 and 19 April 2023
Counsel for the Applicant:	Eugene Twomey
Counsel for the Respondent:	Alison Martyn
Solicitors for the Respondent:	Mills Oakley Lawyers