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

[2022] AATA 2857

McQuade and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2857 (29 August 2022)

Division:GENERAL DIVISION

File Number:               2022/4935

Re:David McQuade

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Griffin QC

Date:29 August 2022

Date of written reasons:        1 September 2022

Place:Sydney

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision of the delegate of the Minister dated 30 May 2022 not to revoke the mandatory cancellation of the Applicant's Class BC Subclass 100 Partner visa. In substitution, the Tribunal decides that the cancellation of the Applicant's Subclass 100 Partner visa is revoked.

......................................[sgd]..................................

Senior Member Griffin QC

CATCHWORDS

MIGRATION – mandatory cancellation of visa – Class BC Subclass 100 Partner (Migrant) visa – where visa was cancelled pursuant to s 501(2) because applicant failed to pass character test – substantial criminal record - Ministerial Direction No. 90 – primary considerations – protection of the Australian community – seriousness of offending and future risk – family violence – best interests of minor children in Australia – expectations of the Australian community – other considerations – extent of impediments if removed – emotional effects – impact on victims – links to the Australian community – the strength, nature and duration of ties to Australia  – decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth) ss 499, 501, 501CA, 501E

CASES

Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115

FYBR v Minister for Home Affairs [2019] FCAFC 185

SECONDARY MATERIALS

Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member Griffin QC

1 September 2022

1.       On 30 May 2022, a delegate of the Minister cancelled the Applicant’s Subclass 100 (Partner) visa under section 501(2) of the Migration Act 1958 (Cth) (the Act). The Applicant asks for review of that decision pursuant to the provisions of the Act.

2.       It is not in contention that the Applicant does not pass the character test under section 501(6) of the Act, and on that basis, he has a substantial criminal record as defined by the Act. That record will be discussed below.

3.       The Applicant was born in 1987 and is 35 years old. He arrived in Australia in September 2014, aged 27, and is a citizen of the United Kingdom. The Applicant’s family, including his mother, father, brother, sister, and relations by marriage still reside in the United Kingdom.

4.       The Applicant has spent two separate periods of residency in Australia between 2014 and 2016, and from 2018 until the present time, a period totalling about six years.

5.       The Applicant formed a relationship with Ms B, and he followed her to Australia. There are two children of that relationship whose ages are 10 years and 2 years. Those children reside with their mother, although the Applicant has continued to have substantial contact with the children by agreement with the mother.

6.       The basis upon which the Minister’s delegate cancelled the visa referred to above is because amongst other things, the Applicant was convicted of domestic violence offences and other property-related offences in 2015. It is relevant that an Apprehended Violence Order (AVO) was taken out on behalf of Ms B, in 2020, without any formal findings by a court against the Applicant. The Applicant was also convicted in March of 2022 of high range alcohol-related driving offences. The details of these offences will be discussed relevantly in relation to the considerations of Direction No. 90, made pursuant to the Act, and will be properly and relevantly considered under this application.

Background to the Applicant’s offending and related matters

7.       There is no report of any criminal conduct in respect of the Applicant until he offended quite seriously against his then partner on 12 December 2014. An agreed statement of facts prepared in March 2015 was placed before the court before whom the Applicant was sentenced in 2015.

8.       It is relevant to appreciate the extent of the Applicant’s offending by reference to the detail of that offending at some length. The Respondent’s outline contains reference to that and is, to the extent of the facts contained in the outline, not relevantly disputed by the Applicant.

[10] The facts of the Applicant's conduct relevant to these offences is detailed in a statement of 'Agreed Facts' that is signed by the Applicant and dated 25 March 2015 (Additional Evidence Bundle, 44-48):

On the evening of Friday 12 December 2014, the victim and the Defendant caught a train from Sydney to Gosford and they then drove home from the train station. On the way home they picked up their daughter Ella from William and Rose Bushell's residence and they then went home to their family residence.

After the victim and Ella went to bed, the Defendant stayed up, playing video games and drinking beer. At about 4am, the victim heard a noise in the kitchen, and observed a number of empty beer bottles. She told the Defendant to stop drinking and that he should go to bed. The Defendant agreed and feel asleep on the lounge.

CHARGE ONE - Assault - Natalie

At 5.50am, the Defendant's mobile phone alarm went off in the lounge room. The victim walked into the lounge room and an argument started. As part of this argument, the Defendant said to the victim "I am only here because of Ella" the child of their relationship. The Victim responded: 'If that is all you are here for, you can leave if you like". At this point the Defendant said "no, this is my house, you can leave." The victim tried to stand up to confront the Defendant on a number of occasions and the Defendant then pushed victim back onto the lounge. The Defendant then threw his mobile phone at the victim which did not make contact with the victim and landed on the floor.

The victim then walked into her bedroom and packed clothes for herself and Ella and left the premises and drove to her parent's residence at Erina. As the victim left the Defendant was crying. Following the departure of the victim and Ella their child the Defendant searched for his phone, credit card and internet connection to enable him to book a flight back to England. He was unable to locate his phone, credit card and internet connection.

[11] A short time later the Applicant followed his partner to her parent's house:

CHARGE THREE - assault - Natalie Bushell

The Defendant believed that the victim had taken his phone, credit card and his internet connection to ensure that he could not book a flight back to the UK. So, he went to the home of Rose and Williams Bushell. He knocked on the door, and Rose Bushell answered the door. The Defendant entered the house and requested the victim return his phone, credit card and internet connection. The Defendant was told repeatedly by the victim that she did not have these items. The Defendant then lost his temper and started kicking the walls and the couch and yelling abuse, slapping the victim once.

CHARGE FOUR - Damage Property

The Defendant then knocked the TV onto the floor and then went into the kitchen area of the premises and threw a plastic kettle from the kitchen into the lounge room. The kettle hit the television, causing the screen to smash. The victim grabbed her phone and told the Defendant she was going to call her father.

The Defendant then removed a bottle of lemonade from the Fridge and walked out of the house, saying, "I am going to wait out the front for your Dad and deal with him".

He then picked up Ella's tricycle from the front of the house and threw it at a front window, causing two of the glass panels to smash. At this point Rose and Natalie Bushell had run into the main bedroom with Ella. The bedroom door was, shut and the Police were called to the premises.

CHARGE EIGHT - Section 111 - Enter property with intent.

The Defendant then re-entered the house, yelling "You've got 30 seconds to come out and give me my credit card, phone and internet connection." The Defendant then smashed more window panels, and smashed some panels of glass in an entertainment unit.

CHARGE SIX and SEVEN - Intimidate Rose and Natalie

The Defendant walked to the main bedroom door which Rose, Natalie and Ella were hiding behind. The Defendant then kicked the door, in an attempt to gain entry, but was unable to do so. The Defendant then said "I'm gunna burn you out if don't go out". Due to this Rose told Natalie to go and talk to David, but the door mechanism was damaged due to the kicking of the door.

[12] After this, the Police arrived at the house and arrested the Applicant.

[13] The incidents are also detailed in a Police Facts Sheet (G6, 49-55).

[14] In sentencing the Applicant, Magistrate Lee stated, 'I formed the view that for the most serious out of the sets of offences that the only appropriate sentence is a sentence of imprisonment' (G5, 45). The Applicant was permitted to serve the periods of imprisonment imposed by way of an intensive corrections order. (A copy of the ICO is at 31- 34 in Additional Evidence Bundle).

[15] The Pre-Sentence Report prepared by the Department of Corrective Services (Additional Evidence Bundle, 28-30) states that the Applicant acknowledged that 'alcohol over-consumption had contributed to his offending actions', and continued:

[16] Mr McQuade claimed that he no longer drank alcohol on the weekends, and only occasionally during the week. He informed that he has been attending Alcoholics Anonymous, and had taken to heart the need to be more controlled in his use of alcohol. Mr McQuade's partner noted that binge drinking had been a common occurrence throughout the duration of their relationship. She agreed that her partner needed to control his drinking, and said she believes he would benefit from counselling to address alcohol related issues.

[16] In total, the Applicant was sentenced by Magistrate Lee as follows:

(a)       Stalk/intimidate intend fear physical etc harm (domestic) - T2:

(i) Intensive correction order: 4 months commencing 19/06/2015 concluding 18/10/2015;

(b)       Common assault (DV) - T2:

(i)Bond S9: 2 years supv NSW Prob Service, attend programmes for counselling, educational development or drug and alcohol rehabilitation;

(c)       Destroy or damage property >$5000 & <=$15000 (DV) - T1:

(i)Bond S9: 2 years supv NSW Prob Service, attend programmes for counselling, educational development or drug and alcohol rehabilitation;

(d)       Common assault (DV) - T2:

(i)Fine: $900 Bond S9: 2 years supv NSW Prob Service, attend programmes for counselling, educational development or drug and alcohol rehabilitation

(e)       Stalk/intimidate intend fear physical etc harm (domestic) - T2:

(i)Intensive correction order: 4 months commencing 19/06/2015 concluding 18/10/2015;

(f)        Enter dwelling w/I (steal) - T1:

(i)Intensive correction order: 13 months commencing 19/06/2015 concluding 18/07/2016.

9.       In March 2022, the Applicant committed driving offences by driving with a high range blood alcohol reading and as a result of an accident where no person was injured, was further charged with negligent driving. The Applicant was required to enter into a Community Correction Order for a period of 2 years until May 2024, disqualified from holding or obtaining a drivers licence and fined $800.

10.     In June 2020, Ms B called police with concerns about the Applicant’s drinking behaviour and his harassment of her, to use a neutral phrase, by sending her numerous text messages. In evidence, Ms B said that she was annoyed and frustrated at the Applicant’s conduct but was not put in fear or frightened by the Applicant’s conduct. The Tribunal accepts that evidence as honest, truthful and correct. The lack of fear expressed by Ms B has ramifications in a consideration of the question of family violence discussed more fully elsewhere herein.

11.     All of this is clearly a continuing domestic situation involving Ms B because she is the mother of the Applicant’s two children. The text messages were particularly inappropriate statements directed at the Applicant’s former partner and is reminiscent of the earlier behaviour which led to the offences in 2014.

12.     On this occasion, unlike the circumstances in 2014, there were no threats or violence of any kind. The Applicant was, it is accepted, drunk at the time, which was at that time a continuing course of behaviour for him and was the subject, in part of his contact with Ms B, and about the payment of child support. It is apparent this conduct had continued and been continuing with the Applicant for some time prior to June 2020.

13.     An AVO on behalf of the former partner, Ms B, was taken out by police officers. There were no findings made by the court against the Applicant in terms of any conduct, especially criminal offending or offending of violence, against Ms B.

14.     Further analysis of this conduct will be discussed below within the relevant considerations.

LAW

[24] Pursuant to s 501(2) of the Migration Act, the Minister (or a delegate) may cancel a visa that has been granted to a person if:

(a)   The Minister (or delegate) reasonably suspects that the person does not pass the character test; and

(b)   The person does not satisfy the Minister (or delegate) that the person passes the character test.

[25] If a decision-maker (other than the Minister) reasonably suspects that a person does not pass the character test, and the person does not satisfy the delegate that they do satisfy the character test, in determining whether to exercise the discretion to cancel the person’s visa, the decision-maker must take into considerations set out in Direction No. 90, Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (Direction 90).

[26] The primary considerations to be taken into account (at section 8 of Direction 90) are:

(a) protection of the Australian community from criminal or other serious conduct;

(b) whether the conduct engaged in constituted family violence;

(c) the best interests of minor children in Australia; and

(d) expectations of the Australian community.

[27] The decision-maker must also take into account other considerations, insofar as they are relevant, in accordance with section 9 of Direction 90. These include (but are not limited to):

(e) international non-refoulement obligations;

(f) extent of impediments if removed;

(g) impact on victims;

(h) links to the Australian community, including:

(i) strength, nature and duration of ties to Australia;

(ii) impact on Australian business interests.

15.     The Applicant was sentenced to a term of imprisonment for more than 12 months. The Applicant does not pass the character test.

16.     It is common ground that the Applicant does not pass the character test and in this application, the Tribunal must assess whether the discretion pursuant to section 501(2) should be exercised to cancel the Applicant’s visa, having regard to the considerations in Direction No. 90.

17.     In this application, it is not a review of the delegate’s decision but a de novo exercise of discretion by this Tribunal. The Applicant’s outline, that may suggest that the Tribunal’s role is to review the Applicant’s failed application to the delegate of the Minister, and referred to above, is incorrect.

18.     The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501(2) (Direction No. 90). Section 5 of Direction No. 90 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:

(a)Australia has a sovereign right to determine whether non-citizens who are of character concern have a right to enter or remain in Australia. Being able to come 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 (paragraph 5.2(1));

(b)non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia (paragraph 5.2(2));

(c)the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (paragraph  5.2(3));

(d)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age (paragraph 5.2(4));

(e)decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non- citizen's conduct or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community (paragraph 5.2(5)).

19.     Part 2 of Direction No. 90 identifies the considerations relevant in determining whether to exercise the discretion pursuant to s 501. It comprises four Primary Considerations and several specified, but non-exhaustive, Other Considerations, which must be taken into account.

20.     Pursuant to Part 2 of Direction No. 90, the Tribunal must, to the extent that they are relevant to this case, take the relevant considerations (both primary and other) into account and:

(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight (paragraph 7.1).

(2)Primary considerations should generally be given greater weight than the other considerations (paragraph 7.2).

(3)One or more primary considerations may outweigh other primary considerations (paragraph 7.3).

21.     These principles are of course dependent upon the facts and circumstances of each case.

22.     The primary considerations are:

(1)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);

(2)Whether the conduct engaged in constituted family violence (Primary Consideration 2);

(3)The best interests of minor children in Australia (Primary Consideration 3); and

(4)Expectations of the Australian community (Primary Consideration 4).

23.     The Tribunal must also take into account other considerations insofar as they are relevant.

24.     These considerations include (but are not limited to):

a)International non-refoulement obligations;

b)Extent of impediments if removed;

c)Impact on victims;

d)Links to the Australian community, including:
i) strength, nature and duration of ties to Australia; and
ii) impact on Australian business interests.

EXERCISING THE DISCRETION

25.     In exercising its discretion, the Tribunal must comply with Direction No. 90 which sets out the relevant considerations.

Primary Consideration 1 – Protection of the Australian community

26.     Paragraph 8.1 of Direction No. 90 provides:

(1)    When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

27.     Paragraph 8.1(2) of Direction No. 90 provides that decision-makers should also give consideration to:

a)the nature and seriousness of the non-citizen's conduct to date; and

b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

The nature and seriousness of the Applicant's conduct to date

28.     Sub-paragraph 8.1.1 of Direction No. 90 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:

a)without limiting the range of offences that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community (sub-paragraph 8.1.1(1)(a)(i)- (iii)):

(i)violent and/or sexual crimes;

(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;

(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious (sub-paragraph 8.1.1(1)(b)(i)-(iv)):

(i)causing a party to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision- maker's opinion (for example, section 501(6)(c);

(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;

e)the cumulative effect of repeated offending;

f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).

The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

29.     Paragraph 8.1.2 of Direction No. 90 provides that decision-makers must have regard to the following:

(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

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

b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i)    information and evidence on the risk of the non­ citizen re-offending; and

ii)   evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

Seriousness of offending and future risk 

30.     Paragraph 8.1.2(2)(b) of Direction No. 90 requires the Tribunal to have regard to the likelihood of the person engaging in further criminal conduct, including evidence of re-offending and rehabilitation.

31.     The history and seriousness of the Applicant’s offending in relation to the 2014 offences are set out above. That offending was particularly serious, involving criminal and family violence over a period of time on the one day which affected the Applicant’s then partner, Ms B, and her mother. This behaviour involved physical pushing and at a later time, a slap to the face, as well as threats of violent behaviour directed at the former partner and her mother.

32.     The Tribunal recognises that the level of physical violence to Ms B is at the lower end of the scale of violent behaviour.

33.     The Applicant’s traffic offences are also particularly serious, although the extent of such offending is limited.

34.     Overall, the Tribunal regards the Applicant’s offending as particularly serious.

35.     The Applicant has undertaken various rehabilitative courses in respect to his alcohol abuse and although such courses may, in particular cases, have some success, it is simply too soon to know whether the Applicant has been sufficiently rehabilitated.

36.     The risk of future offending in the Applicant’s case, on all the evidence, seems to suggest situational behaviour directed to Ms B alone and there is a possibility that such behaviour could occur in the future, absent the effects of rehabilitative courses undertaken.

37.     Of significance, however, is the continued positive and protective operation of Apprehended Domestic Violence Orders which appear to have operated relatively successfully to protect Ms B from original violent behaviour by the Applicant, occasioned in 2014.

38.     The presence and continuation of the Apprehended Domestic Violence Orders, in the Tribunal’s opinion, genuinely diminishes the risk of violence to Ms B. There is no satisfactory evidence, in the Tribunal’s opinion, that the Applicant is realistically likely to offend others by this quality of violence.

39.     The Tribunal was impressed by and accepts the oral evidence given by the Applicant and Ms B that there is presently a relatively harmonious and co-operative relationship between the parties. This relationship has continued for some little time up to the hearing and the Tribunal finds that it is likely to continue. This bodes well for the likelihood of the Applicant behaving in a law-abiding fashion and, in particular, with respect to proper behaviour to Ms B in the future.

40.     The Tribunal, however, recognises the potential for drunken conduct which may, for example, effect users of the road, and other innocent persons by reason of possible drunken misconduct by the Applicant.

41.     Overall, the Tribunal recognises and accepts the seriousness of the Applicant’s offending conduct and associated future risks, which have been discussed immediately above and elsewhere in this decision. This consideration, therefore, weighs, in the Tribunal’s estimation, against the Applicant, but in the Tribunal’s opinion, it does not supply a determinative result in the exercise of the Tribunal’s discretion. The Tribunal recognises that there are other factors and considerations to be weighed in the overall ultimate exercise of the Tribunal’s discretion.

Primary Consideration 2 – Family violence committed by the non-citizen

42.     Paragraph 8.2(1) of Direction No. 90 provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.

43.     Paragraph 4(1) defines family violence to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful’ (emphasis in original).

44.     Primary Consideration 2 is relevant in circumstances where (paragraph 8.2(2)):

a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.2(2)(a)); and/or

b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.2(2)(b)).

45.     Paragraph 8.2(3) of Direction No. 90 provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:

a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.2(3)(a));

b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.2(3)(b));

c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.2(3)(c)):

(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.2(3)(c)(i));

(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.2(3)(c)(ii));

(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.2(3)(c)(iii)); and

d)whether the non-citizen 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 (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.2(3)(d)).

46.     It is clear from the evidence, including the recent convictions for driving offences, that the Applicant has had a continuing problem with alcohol. His alcohol-fuelled behaviour was central to the commission of the family violence offences in 2014 which were against his then partner, the circumstances of which have been referred to above. There is no doubt, in the Tribunal’s mind, that the circumstances surrounding the Applicant’s conduct with his ex-partner, quite apart from what might be said of the partner’s conduct on that occasion amounts, on the Applicant’s part, to family violence as contemplated by Direction No. 90. The very grave seriousness of this conduct is undoubted.

47.     The behaviour involved pushing Ms B, physically assaulting her by slapping in the context of other violent, non-physical activities that were directed to both Ms B and her mother, including threats of serious violence. This offending is grave to an extremely serious degree.

48.     The Tribunal notes that although this relationship has endured for a number of years, and the parties are now separated with shared parenting arrangements, nonetheless, a distinct antagonism by the Applicant to his former partner, particularly on the evidence when alcohol has been consumed, continued to exist and was manifest in June of 2020.

49.     The Respondent argues that the making of an Apprehended Domestic Violence Order in June 2020 is evidence of family violence and should be taken into account, partly on the basis that the protected person, Ms B, was a person properly regarded as a member of the Applicant’s family and therefore, in a family relationship, and amenable to the concepts of family violence as contemplated and defined by Direction No. 90. The Tribunal is satisfied that Ms B was a member of the Applicant’s family.

50.     Nowhere in the evidence, however, does Ms B complain that she was put in fear of the Applicant by his behaviour and, in fact, there is no allegation of any threats by the Applicant on the occasion to which the AVO refers and was instituted.

51.     The Tribunal, during the course of submissions, requested the Respondent and the Applicant to provide further submissions on an issue of family violence that arose on the material before the Tribunal, and in particular, on the evidence of Ms B.

52.     The Tribunal accepts Ms B’s evidence on the topic of the AVO that she was annoyed and frustrated at the Applicant’s continued texting of her and on that basis, called the police, concerned that the Applicant’s conduct was affected by alcohol.

53.     Ms B’s evidence is not inherently incredible and the subjective explanation of her concerns, specifically that she was not fearful of the Applicant, are particularly relevant. The Tribunal does not accept that inferences can be drawn inconsistent with the accepted evidence of Ms B on this topic.

54.     An essential ingredient in the notion of family violence is, in this case, that the relevant person, Ms B, must have been fearful or put in fear in some way.

55.     On all the evidence, including the factors argued by the Respondent that should be taken into account, the Tribunal decides that the witness, Ms B, was not fearful or put in fear and an essential ingredient of family violence is not proved.

56.     The Applicant’s conduct, the basis for the application for the AVO, is not, the Tribunal finds, a proper basis for finding family violence conduct on this occasion. The Tribunal ignores it as an incident of family violence. The conduct itself, however, is a relevant consideration in the relationship between the Applicant and Ms B, and is discussed elsewhere in this decision, including in Links to the Australian community.

57.     On the view the Tribunal has formed, it is not necessary to decide whether the Apprehended Violence Order of 2020 was properly made.

58.     The Tribunal is not satisfied that the taking out of the AVO in June 2020 is an incident of family violence as contemplated by Direction No. 90. If, however, the Tribunal is wrong in that assessment, nonetheless, it considers the behaviour of the Applicant in 2014 as conduct so serious that, whether or not the June 2020 circumstances are incorporated as family violence, this consideration weighs strongly against the discretion to reinstate the Applicant’s visa. This is so, even though the Tribunal recognises that the behaviour in relation to the Applicant’s family violence is limited to conduct in 2014.

Primary Consideration 3 – Best interests of minor children in Australia

59.     Paragraph 8.3(1) of Direction No. 90 provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision.

60.     This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made (sub-paragraph 8.3(2)).

61.     Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.

62.     Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:

a)the nature and duration of the relationship between the child and Applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact) (sub-paragraph 8.3(4)(a));

b)the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements (sub- paragraph 8.3(4)(b));

c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));

d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways  (sub-paragraph 8.3(4)(d));

e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));

f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));

g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and

h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).

63.     The Respondent properly concedes that this consideration weighs in favour of the Tribunal setting aside the cancellation of the Applicant’s visa. Arguments promoted by the Respondent which are made on the basis of the question of weight include that the children live with the Applicant’s former partner who performs ‘a parental role’ in relation to the children and that the Applicant will be able to maintain contact with his children in other ways, including by telephone and video calls. It is relevant that the Respondent argues that the risk of the Applicant’s continued problematic use of alcohol will impact on his relationship with the children, with the likelihood of further acts of family violence towards his partner.

64.     There is no suggestion or inference that can be drawn that the Applicant has, in the past, caused violence to his children. On the evidence, the Applicant has been deeply involved with his children, fulfilling a parental role. As the Applicant’s representative argues, both children are young and at a developmental stage, with the significance of having a father in their lives as extremely important. Further, it is argued by the Applicant, that the emotional ramifications of cancellation would be significant on the children should their father be deported. The Tribunal considers that substantial weight should be given to those arguments.

65.     There is evidence to support the fact that the children are reliant on their father financially, although it is possible to make such contributions other than being resident in Australia. Of significance is that Ms B considers that she and her children would be in difficult financial circumstances if the Applicant’s visa were to be cancelled.

66.     Even taking the Respondent’s submissions as to weight at their highest, there is no doubt, in the Tribunal’s mind, that the presence of this particular Applicant in the lives of his children, in his particular circumstances, must weigh extremely heavily in the best interests of those children.

67.     The Tribunal is of the view that this consideration, which at its centre is the best interests of the children, undoubtedly weighs particularly heavily in favour of setting aside the cancellation of the Applicant’s visa. Furthermore, this consideration, to the Tribunal’s mind, is of singular importance in this particular application.

Primary Consideration 4 – Expectations of the Australian community

68.     Paragraph 8.4(1) of Direction No. 90 provides as follows:

The Australian community expects non-citizens to obey Australian laws while in Australia. 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 not to allow such a non- citizen to enter or remain in Australia.

69.     Paragraph 8.4(2) also provides that it 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

(b)   causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

(c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;

(d)   commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

(e)   involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

(f)    worker exploitation.

70.     The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).

71.     This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).

72.     This consideration has been the subject of extensive judicial discussion and ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185). Although these principles are discussed in relation to the former Direction No. 79, those principles are not relevantly different in principle with respect to Direction No. 90.

73.     It is not for the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the ‘norm’, relevantly now stipulated in Direction No. 90 at 8.4. per Stewart J and Charlesworth J (93); (100 to 104); (68), referring to the relevantly similar Direction No. 65 at 13.3(1).

74.     This consideration must weigh against the Applicant, particularly taking into account the nature of the offending which is, in 2014, undoubtedly family violence.

75.     However, it is clear enough from recent decisions of the Federal Court such as Deng,[1] that real and intellectual consideration must be given to the factors affecting the weight to be given to this consideration. Although the norm is set out in the community’s expectations, the weight to be applied through this consideration may be variously affected by subjective factors and circumstances relevant to the Applicant, and perhaps other relevant parties.

[1] Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115.

76.     The Tribunal identifies, in this case in particular, that the Applicant’s links to the Australian community through his children and the presence of their mother in Australia are appropriate factors to consider in terms of weight. Although the Applicant has not lived a particularly long time in Australia, he has contributed to Australian society through work. There are so-called references by associates of the Applicant who speak well of him and that, in turn, the Tribunal infers, means that he has established social ties in Australia.

77.     Although this is a separate relevant consideration under that particular mandatory heading, it is, nonetheless, a factor which the Tribunal gives modest weight to in the overall assessment of the weight to be applied to this consideration, weighing as it must, the community’s concerns about the Applicant’s offending, particularly the family violence.

78.     The Tribunal notes and considers in the weight to be attached to this consideration that the family violence offending occurred in 2014, without any further criminal conduct of that type since. The Tribunal makes this comment, recognising the existence of the AVO which has been discussed elsewhere in this decision.

79.     In all the circumstances, the Tribunal is satisfied that this consideration ultimately weighs against the Applicant but it does not hold determinative weight in the overall consideration by the Tribunal of this application.

Other considerations

80.     A decision-maker must also take into account Other Considerations where relevant. These considerations include (but are not limited to) (paragraph 9(1) Direction No. 90):

a)international non-refoulement obligations;

b)extent of impediments if removed;

c)impact on victims;

d)links to the Australian community, including:

(i)strength, nature and duration of ties to Australia;

(ii)impact on Australian business interests.

International non-refoulement obligations

81.     The considerations at paragraph 9.1 of Direction No. 90 include (but are not limited to):

(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations.

(2)In making a decision under s 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct.

(3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa.

(4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa in a request to revoke the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).

(5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.

(6)It may not be possible at the section 501/section 501CA stage to consider non­refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non­refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.

(7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non­citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.

(8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non­refoulement obligations.

82.     There is no evidence to indicate that this consideration is relevant to this review.

Extent of impediments if removed

83.     Paragraph 9.2(1) of Direction No. 90 provides:

(1)Decision-makers must consider the extent of any impediments that the non­citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a)     the non-citizen's age and health;

b)     whether there are substantial language or cultural barriers; and

c)     any social, medical and/or economic support available to them in that country.

84.     The Applicant first came to Australia in 2014 at the age of 27 years, having worked and lived the entirety of his life, until 2014, in the United Kingdom. He went back to the United Kingdom in 2016 and returned to Australia in 2018, where he has lived since that time.

85.     The Applicant’s family members, apart from his children, are all living in the United Kingdom. In terms of re-establishing himself, although there would no doubt be extreme emotional distress in having to leave his children in Australia, there is likely to be little mid-term or permanent issues in relation to the Applicant establishing himself and continuing to live in the United Kingdom, where the Tribunal infers, he would likely have prospects of employment that would not be dissimilar to appropriate employment in Australia.

86.     There are no language barriers or cultural barriers should he be returned to that country.

87.     The Applicant’s skills, as they have emerged during the hearing and on the material available, suggests that there would be no difficulty with his gaining employment in the United Kingdom. Nor does it seem that the Applicant’s age and health would be an issue when seeking employment. There is no evidence that any social, medical or economic issues would affect him should he be returned to the United Kingdom.

88.     It is obvious that this consideration weighs in the Applicant’s favour but the weight the Tribunal attaches to it, in the Applicant’s favour, is a modest weight.

89.     There is, however, one issue which the Tribunal considers relevant and which is argued by the Respondent as something that should not be taken into account under this consideration or, as the Tribunal apprehends the argument, under the consideration of impact on victims.

90.     The Tribunal considers that the removal of the Applicant from Australia would cause significant emotional distress to him by removing him from his two children and, to a lesser extent, from the association he continues with his former partner, Ms B.

91.     The categories of considerations to be assessed under Direction No. 90 are not closed. Direction No. 90 itself leaves open the possibility to other relevant considerations applying to particular Applicants.

92.     In the Tribunal’s opinion, in this case, it is a relevant consideration that the Tribunal, on the evidence, particularly the oral evidence of the Applicant and his former partner, considers the Applicant would be seriously emotionally affected by removal from Australia and from his children.

93.     In this separately-considered consideration, the Tribunal gives some weight to the emotional effects the Applicant would suffer upon removal from Australia and that consideration gives some positive weight, overall, to the Applicant’s case.

Impact on victims

Paragraph 9.3(1) of Direction No. 90 provides:

Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims …

94.     The impact that may be said to be relevant to victims on the evidence relates to Ms B.

95.     Although Ms B has given a statement, which is in terms positive for the Applicant, the statement does not, in the Tribunal’s opinion, address the necessary ingredients in relation to this impact on victims consideration and therefore, the Tribunal finds that there is no sufficient evidence to bring this consideration into operation in this application.

96.     The Respondent contends for a novel and broad interpretation of this consideration. In the Tribunal’s experience, this is the only occasion when a representative of the Respondent has made such a contention.

97.     Consistency in submissions on such matters amongst representatives of the Respondent is essential to proper and fair hearings, in the Tribunal’s opinion. The Tribunal supposes that this interpretation contended for by the Respondent’s legal representative has been argued upon specific instructions by the Respondent and therefore, constitutes an entirely different approach from that taken by the Respondent in other cases in the past before this Tribunal.

98.     That interpretation, which was developed in oral submissions, was to the effect that this consideration requires the Tribunal to consider not only past offending by the Applicant but potential future offending in respect not only of victims but members of the Australian community in general. The ‘information’ relied upon by the Respondent in oral argument is any evidence which points to, or refers to, or is capable of being assessed, in terms of the risk of the Applicant’s future offending.

99.     Those submissions are nonsensical and plainly wrong. Although this consideration applies to victims of the non-citizens criminal behaviour, the Tribunal must consider the relevant impact of a decision in relation to section 501 or 501CA on members of the Australian community as well. The flaw with the Respondent’s reasoning is that the Respondent contends that the criminal behaviour should include future criminal behaviour. This is plainly not the purpose or operation of this particular consideration. Its operation is concerned solely with the impact on victims, members of their families, and members of the Australian community, in respect of past criminal behaviour by the Applicant. The notion of victim itself implies and comprehends a past activity unless specifically defined otherwise.

100.    Furthermore, the information referred to in this consideration is not the non-specific risk of future offending based evidence, but quite specific information directed to the actual impact on victims, family members or members of the Australian community in respect of past offending by the Applicant.

101.    In any event, non-specific allegations, which the Respondent contends are capable of amounting to information, can never properly or realistically be put to the Applicant in terms of affording the Applicant procedural fairness, as required by this consideration.

102.    The Respondent’s contention is clearly misconceived for another reason. The argument proposed by the Respondent in respect of this consideration is directly correlative with Primary Consideration 1 and that aspect of it which relates to risk of future offending. It is quite inconceivable that Direction No. 90 would require a dual and effectively identical consideration on the same matters in two separate considerations unless specifically and clearly articulated.

103.    The exercise of the discretion is not unfettered. However, nor is the exercise of the discretion in cases such as these, formulated by the mere mathematical addition and offsetting of factors, and weighing and calculating them in some fundamental mathematical procedure. Rather, the exercise of the discretion is far more sophisticated and subtle, involving as it does, and bringing to bear, a proper intellectual consideration of all relevant factors and applying appropriate weight to the overall assessment of those relevant factors, to arrive at the appropriate and proper decision.

104.    Should the Tribunal be wrong in its understanding of the operation of this consideration, the view expressed by the Tribunal, which is a fact-finding Tribunal, amongst other things, is correlative with the findings the Tribunal has made in relation to risk assessment under Primary Consideration 1. The submissions made by the Respondent in respect of the impact on victims consideration is sufficiently and entirely dealt with by the Tribunal under Primary Consideration 1 and its fact finding as to risk assessment.

105.    Were it to be suggested that the Respondent’s contentions in relation to this consideration are correct, the Tribunal would attribute no greater weight to that consideration on account of its findings in respect of risk assessment pursuant to Primary Consideration 1. The Tribunal’s view would not ultimately have been affected as to the outcome of this matter whether the Respondent’s submissions and contentions in relation to this consideration be found to be correct.

Links to the Australian community

106.    Reflecting the principles of Direction No. 90 at paragraph 5.2, decision-makers must have regard to Direction No. 90, paragraphs 9.4.1 to 9.4.2 provided below.

9.4.1.   The strength, nature and duration of ties to Australia

(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non­ citizen has to the Australian community. In doing so, decision-makers must have regard to:

a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

107.    The Applicant has only lived in Australia for a relatively short time, although not only do his two children reside in Australia but on the evidence, the Tribunal finds that he has continued to have a suitable, co-operative relationship with the children’s mother. That relationship has, however, at times, been a relationship that lacked harmony and also on occasions, positively provided his former partner, Ms B, with cause to be annoyed and frustrated at his behaviour. Nonetheless, the Tribunal finds, overall, that both parties have a genuine affection for each other. This relationship should be regarded and is, in fact, regarded by the Tribunal as a relationship that should be taken into account under this consideration in the Applicant’s favour.

108.    On the evidence, the Applicant has demonstrated a commendable work ethic during his working life in Australia.

109.    It is evident that people speak well of the Applicant, including the father of Ms B and Mr Adames, who gave evidence in this regard. On the evidence of Mr B, his wife also regards the Applicant in a favourable light. A referee, Mr O, connected to the Applicant’s workplace, has provided a favourable opinion. The Tribunal infers from these associates of the Applicant who have spoken well of him, that the Applicant has formed suitable connections with members of the Australian community, and they would be, to various degrees, disappointed should he be removed from Australia.

110.    The Tribunal considers that this consideration carries slight and modest weight in the Applicant’s favour.

9.4.2    Impact on Australian business interests

(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

111.    There are no relevant business interests to be considered.

Conclusion

The Respondent relies on the following factors, amongst other matters argued, to contend that this Tribunal should not exercise its discretion in the Applicant’s favour.

(a)The Australian community has a particular repugnance for acts of family violence, and expects that the Government should cancel the visa of a non-citizen who engages in such conduct;

(b) The Applicant committed the offences for which he was convicted only a short time after initially coming to Australia;

(c) In the time since committing those offences, the Applicant has failed to adequately address the underlying factor of his problematic drinking, resulting in further acts of family violence towards his former partner and his driving with a high range PCA;

(d) There is no reasonable basis for the Tribunal to be satisfied that the Applicant is rehabilitated, or that he would maintain any limitation on his problematic use of alcohol into the future;

(e)There is a need to protect the community from a risk of harm arising from the Applicant's continuing problematic drinking, including the risk of further violent conduct, a risk of further family violence, and a risk of injury to users of the road;

(f)The best interests of the Applicant’s children would be in favour of the cancellation decision being set aside, but their mother will continue to play the main parental role in their lives, and they can expect to also have the support of their grandparents in Australia, and to maintain a relationship (albeit more remotely) with the Applicant.

112.    The Tribunal recognises and has assessed the level of risk posed to the Australian community and independently, the level of risk posed to Ms B by the Applicant. The Tribunal assesses the risk to the Australian community at a very low level, and to Ms B as the likelihood of some risk but also at a relatively low level, particularly having regard to the view the Tribunal has formed on satisfactory evidence of rehabilitation by the Applicant and by the appropriate relationship established between the Applicant and Ms B in the recent past.

113.    The Tribunal recognises the seriousness of the Applicant’s past offending and has expressed that some weight must be given to the expectations of the Australian community, amongst other factors, which support cancelling the Applicant’s visa.

114.    The Tribunal, however, is of the view that the interests of the Applicant’s two children are of paramount importance in this case, and simply outweigh all other considerations weighing against the Applicant.

115.    There are some other factors, referred to above, that provide some relatively modest weight to be considered in the Applicant’s favour and these are discussed within the body of the decision.

116.    The interests of the minor children, the Tribunal has concluded, are substantial and compelling. Further, in the case of this Applicant and his relationship with Ms B and their children, these factors ultimately provide determinative weight in the Applicant’s favour.

Order

117.    The Tribunal decides in the exercise of its discretion, taking all relevant factors into account, that the delegate’s decision should be set aside and Applicant’s visa should not be cancelled.

I certify that the preceding 117 (one hundred and seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Griffin QC

.....................................[sgd]...................................

Associate

Dated: 1 September 2022

Date of hearing:	18 August 2022
Date final submissions received:	23 August 2022
Solicitors for the Applicant:	Mr Sulu Samasoni, Pinnacle Lawyers
Solicitors for the Respondent:	Mr Will Sharpe, HWL Ebsworth Lawyers