MGMZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 333

MGMZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 333 (5 March 2024)
Division:GENERAL DIVISION
File Number: 2023/9540
Re:MGMZ
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:R Cameron, Senior Member
Date:5 March 2024
Place:Melbourne

The Tribunal affirms the reviewable decision.
.................................[SGD].......................................
R Cameron, Senior Member
Catchwords
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of
Class TY Subclass 444 Special Category (Temporary) visa – substantial criminal record – failure to pass the character test – whether there is another reason to revoke the visa cancellation – Direction No. 99 – recklessly causing serious injury – use of heavily bladed weapon – common law assault on son – protection of the Australian community – family violence – expectations of the Australian community – strength, nature and duration of ties to Australia – best interests of minor children – extent of impediments if removed – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act1958 (Cth)
Cases
Aghbolagh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 43
DTR21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1237
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 99: Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA (23 January 2023)
REASONS FOR DECISION
R Cameron, Senior Member
5 March 2024
INTRODUCTION

The applicant seeks review of a decision made on 11 December 2023 by a delegate of the respondent not to revoke the mandatory cancellation of the applicant’s Class TY Subclass 444 Special Category (Temporary) visa (“the visa”) under s 501(3A) of the Migration Act1958 (Cth) (“the Act”) (“the reviewable decision”).[1]
[1] References to “G” documents are references to documents required to be given to the applicant under s 501G(2) of the Act The reviewable decision is document G2, 9 of the G documents.
THE EVIDENCE BEFORE THE TRIBUNAL
There was both documentary and oral evidence before the Tribunal.
The applicant gave oral evidence and was searchingly cross-examined.
Additionally, an uncle of the applicant, “RE”, gave oral evidence.
The applicant lodged a bundle of documents which were received in evidence (hereinafter referred to as the “ATB”).[2]
[2] The ATB comprised witness statements from the applicant’s mother, a brother, two cousins and RE, who, as noted earlier, also gave oral evidence at the hearing of the application. The statements have been read and considered by the Tribunal. They are referred to in full for their full force and effect. They attest to, amongst other things, the applicant’s work ethic and enduring qualities as a father. Also, such statements attest to the applicant’s remorse and in various ways say he has learned his lesson and is unlikely to reoffend again.
There were the “G” documents, together with a tender bundle lodged by the respondent (hereinafter referred to as the “RTB”).
THE RELEVENT SECTIONS OF THE MIGRATION ACT
Section 501(3A) of the Act specifies that the Minister (or their delegate) must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test prescribed by s 501(3A)(a) is set out in s 501(6) of the Act. Section 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by s 501(7) of the Act). For the purposes of s 501(6)(a) of the Act, and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[3]
[3] The Act s 501(7)(c).
Where a visa has been cancelled, as set out above, the Minister has a power under s 501CA(4)(b) of the Act to revoke the cancellation decision if satisfied, after the person has made representations to them, that the visa holder passes the character test, or that there is “another reason” why the original decision should be revoked.
Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2A) of the Act, comply with a relevant direction. Currently, the applicable direction is Direction No. 99 – 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 (“Direction 99”).
DIRECTION 99
It is, by way of introduction, appropriate to refer to several paragraphs found in Direction 99. Such provisions guide decision-makers in the application of the Direction. Further reference to the paragraphs in Direction 99 specifying the primary and the other considerations required to be considered by the Tribunal as decision-maker, where relevant, will be referred to later in these reasons when each of those considerations are applied to the facts of this application.
Paragraph 5.2, “Principles”, provides the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act. The contents of that clause are referred to in their entirety for their full force and effect. However, several of them should be specifically referred to. It is provided that:
(a)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 (para 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 (para 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 (para 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 (para 5.2(4));
(e)With respect to decisions to refuse, cancel, and revoke the 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 (para 5.2(5));
(f)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 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 measurable risk of causing physical harm to the Australian community (para 5.2(6)).
Paragraph 6, “Making a decision”, provides that, informed by the principles in para 5.2, account must be taken of the considerations identified in para 8, “Primary considerations”, and para 9, “Other considerations”, where relevant to the decision.
Paragraph 7, “Taking the relevant considerations into account”, provides that in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.
Paragraph 8, “Primary considerations”, mandates that in deciding whether to revoke the mandatory cancellation, the following are primary considerations:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
Paragraph 9, “Other considerations”, provides in making decisions under s 501(1), 501(2) or 501CA(4), the following considerations must also be taken into account, where relevant, and include, but are not limited to:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims;
(d)impact on Australian business interests.
ISSUES BEFORE THE TRIBUNAL
There is sufficient evidence before the Tribunal to demonstrate that the applicant has made representations to the respondent in compliance with s 501CA(4)(a) of the Act.[4]
[4] E.g., G4, Attachments E (Request for Revocation), F (Personal Circumstances Form) and G (letter of 20 February 2020 from the applicant with attached lists of programs, courses and activities that he has undertaken whilst in prison and detention).
That leaves two issues for determination by the Tribunal:
(a)whether the applicant passes the character test; and
(b)if he does not, whether there is “another reason” why the decision to cancel the visa should be revoked.
THE CHARACTER TEST
The applicant does not pass the character test. He does not do so, by operation of s 501(6)(a) and s 501(7)(c) of the Act, as he has a “substantial criminal record”, having been sentenced to a term of imprisonment of 12 months or more in the County Court of Victoria at Melbourne on 23 March 2020 when the applicant pleaded guilty to one charge of common assault and one charge of recklessly causing serious injury. A total effective sentence was imposed by the sentencing judge of 5 years and 3 months, with a non-parole period of 3 years and 3 months.[5]
[5] G4 (Attachment B), 35-47. Additionally, in both his opening closing submissions, the applicant conceded by reason of his convictions in the County Court of Victoria on 23 March 2020 he does not pass the character test.
RELEVANT BACKGROUND AND THE APPLICANT’S OFFENDING
The applicant is presently 47 years of age, having been born in New Zealand in February 1977. He is a citizen of that country.
He arrived permanently in Australia in June 2002.
At all relevant times he has been married. He and his wife have four sons. Two of them were born in New Zealand in June 2000 and April 2002, with their other two sons born in Australia in October 2006 and December 2007.
There are four offences that have been committed by the applicant.[6]
[6] G4, 33-34.
On 2 October 2012 in the Sunshine Magistrates’ Court, a charge of unlawful assault was proven. Without conviction the matter was adjourned to 1 April 2014, and the applicant was ordered to donate $1000 to charity.
On 13 February 2013 in the Werribee Magistrates’ Court, a charge of unlawful assault was also proven. Without conviction the matter was adjourned to 14 February 2014.
In the County Court of Victoria at Melbourne on 23 March 2020, the applicant was convicted of recklessly causing serious injury for which he was sentenced to a total term of 61 months imprisonment. On the same day in the same court, he was also convicted of common law assault and sentenced to a term of 4 months imprisonment, with 2 months of that sentence to be served concurrently.
SOME OBSERVATIONS CONCERNING THE APPLICANT’S EVIDENCE
It is appropriate to make some initial observations concerning the evidence given by the applicant to the Tribunal whilst he was in the witness box. He gave evidence in chief and then was searchingly cross-examined for a very lengthy time.
The applicant presented to the Tribunal whilst he was in the witness box as someone who was not unintelligent and reasonably alive to protecting his interests. Whilst he was not legally represented, he was comparatively at home in the environment of the witness box.
There were aspects of the applicant’s evidence that were unsatisfactory. Amongst the documentary evidence contained in the RTB were statements furnished to the police made by the applicant’s wife and sons “LM” and “EM”.[7] In particular, initially, he in relatively bold terms, disputed certain portions of statements made by his wife, who was a victim of his offending and also two of his sons, one of whom was also a victim of his offending. Additionally, he also initially disputed that his offending in 2018, details of which will be outlined later in these reasons, had caused wounds to the left neck of his wife. When probed by both the lawyer for the respondent and, in some cases, the Tribunal, the applicant’s evidence changed. More about this will be said later.
[7] RTB, 13-20, 21-28 and 29-32.
The applicant sought to explain this significant change in his evidence by reference to the fact that his recollection was, more probably than not, faulty due to the amount of alcohol that he had consumed on the evening of 18 June 2018, together with the passage of time and a desire to put these events behind him. In response to one question he stated, “[t]here are some things I remember, some I don’t remember at all. It was extremely harrowing. It was hard to comprehend anything happening at that time.” The Tribunal found this explanation unconvincing. It seems that this approach by the applicant to his evidence was to some extent an attempt to downplay or diminish the significance of his offending, perhaps even an attempt to put a different gloss on it.
In their police statements, the applicant’s wife and his two sons stated that they had, for two weeks prior to the incident on 18 June 2018, moved back in with the applicant and been staying with him. Previously for approximately 1 year and 1 month, his wife and children had been living with his wife’s cousin in Tarneit. Initially, when the contents of these statements concerning this topic were put to him, he denied them. Further, he stated that his wife decided to “drop the kids off unannounced” on that day. When pressed, the applicant’s evidence changed, and he accepted that what his sons said in their statements were accurate to the extent that his boys had been living with him for two weeks, but not his wife. He expressly accepted that on the night in question, his wife “came home from work and didn’t have the four boys in tow” contrary to his earlier evidence.[8]
[8] The Tribunal should also observe that the sentencing judge in his Reasons for Sentence (G4, Attachment B, 36), at paragraph 4, recorded that the applicant’s wife and their four sons, "were staying at your house for a couple of weeks whilst their previous living arrangements were unavailable. They were due to return to their own home the following day." This finding by the sentencing judge is consistent with the evidence contained in the police statements made by the applicant's wife and sons. It appears that this evidence was accepted by the sentencing judge, more likely than not, without any objection from counsel for the applicant at the plea hearing. It is another reason why the Tribunal cannot accept the applicant's evidence that his wife was not living at his house at the time of the incidents on 18 June 2018, albeit on a temporary basis.
Another change in the applicant’s evidence whilst in the witness box occurred concerning the evidence of his son, LM. In one paragraph of his statement, he said that during the incident on 18 June 2018 the applicant tried to smash him into a glass coffee table. The son further stated that the applicant started punching him in his face with his fists about six times. In the witness box the applicant, when these sections of LM’s witness statement were put to him, boldly stated in response to questions from the Tribunal, “I physically put my hands on LM and pushed him away. I shoved him out of the way. I didn’t hit him. It is wrong. I didn’t punch him and try to push him into the coffee table. I didn’t punch him as he says in the statement. I didn’t try to smash him into the glass coffee table.” Later he stated, “I did throw him onto the couch, the punching thing is not true.”
When probed further about the allegations made in certain paragraphs of the police statements of LM and EM and where he disagreed with them, the applicant’s evidence changed, initially, by saying, “I accept it is difficult to recall. I am having a real hard time with the trauma that goes around it. I am not saying I am disputing it; I am finding it very hard to talk about. I am not trying to get away from the fact it happened.” Then, critically he stated, “I am not denying what they are saying.” The applicant acknowledged that his sons were not affected by alcohol that night. Additionally, he conceded that it was more probable than not that his sons had no animosity towards him. Therefore, he conceded their account is more likely to be accurate. Then specifically he stated in response to a question from the Tribunal, “After what the Senior Member said to me, I now say that LM’s allegations must be true.”
Another significant change in the applicant’s evidence arising from a consideration of his wife’s police statement emerged from a section of her statement where she stated that the applicant took a machete out of its casing and held it up against her neck, at the same time shouting at her, “This is what you wanted”. She responded with the words, “I don’t want to die, I don’t want to die”. When confronted with this section of his wife’s police statement, the applicant’s response was, “I didn’t hold the machete at her throat”.
The applicant was then shown a section of a Forensic Medical Report prepared by a Forensic Physician from the Victorian Institute of Forensic Medicine. In a section of that report headed “INJURIES”, the Forensic Physician identified the applicant’s wife as suffering from a linear superficial appearing wound to the left upper neck and a linear superficial appearing wound to the left neck below the previous injury to her left neck as described.[9] It was put to the applicant that the description of these injuries was consistent with what his wife described in the relevant section of her police statement. The applicant then retreated from his previous position that he did not hold the machete at her throat and stated, “I accept that the injuries are consistent with the machete being held at her throat.”
[9] RTB, 40-46.

There was also a change in the applicant’s evidence with respect to how long he had committed acts of family violence against his wife. On several occasions while giving his evidence from the witness box, he stated that his recourse to acts of family violence commenced when there was a deterioration in his relationship with his wife from approximately 2012. This was the time when the applicant had his first appearance in the Magistrates’ Court. He acknowledged that the first appearance was for a family violence matter.
His wife in her police statement, and also in a conversation with a nurse at the Royal Melbourne Hospital, where she was conveyed following the applicant’s offending against her on the evening of 18 June 2018, stated that the applicant had been abusive towards her since she was 20 years old. In one paragraph of her police statement, she stated that the applicant had always been abusive towards her. The first time was in New Zealand when she was 20 years old when they had an argument and the applicant began punching her and pulling her hair.[10] In a later paragraph of the same statement she said, “I can’t remember how many hidings I’ve copped from [MGMZ] since we started dating, it was a way of life, it was normal to me. This would happen at least once every 3 months; all of [MGMZ’s] problems became my fault”.[11]
[10] Ibid 13, [4].
[11] Ibid 13, [6].
The contents of both of these paragraphs were specifically put to the applicant in cross-examination. He steadfastly responded by saying that the contents of them were incorrect.
The applicant was shown and asked to read the contents of a clinical note made by a nurse treating his wife at the Royal Melbourne Hospital on 19 June 2018. He stated it was the first time he had seen or read such note. A portion of that clinical note was specifically put to the applicant, and he was asked whether he agreed or disagreed with its contents. It is appropriate to reproduce in full, the portion of that clinical note that was put to the applicant in that exchange, “Victim of domestic violence for approx. 20yrs & has seen counsellors & social workers to assist in this.”[12] In response to the question, he stated he agreed with its contents.
[12] Ibid 58.
This admission concerning the contents of the clinical note that were specifically put to the applicant varied from evidence he gave earlier in his cross-examination. In the relevant part of that cross-examination, without the actual clinical note being put to him, it was nonetheless put to the applicant that his wife had, whilst she was in a hospital ward, informed staff that she had been a domestic violence victim for 20 years. The applicant’s response to the question was given in an almost flippant manner. He said, “I would say it is very sad if that is what she thinks. I wouldn’t say she is deluded. I would probably say she needs help. I wouldn’t say deluded is the right word. She needed help. She had her own addiction issues as well. She had pressures. She had an alcohol problem. Prior to the last two years I was trying to get closure. I saw changes in her that indicated she was on something else.” Apart from the obvious difference between this evidence and his subsequent admission concerning the entries in the clinical note made on 19 June 2018, it does indicate an attitude or approach on the part of the applicant to downplay the gravity of his offending and, in some way, deflect responsibility onto his victim. It reflects a degree of “victim blaming”, or a poor attempt to pass some degree of responsibility on to her.
It should be noted that approximately 20 years before 19 June 2018, the applicant’s wife was 20 years of age. The clinical note of 19 June 2018 is also consistent with the contents of her police statement concerning the length of time that she had been subject to abuse and domestic violence at the hands of the applicant. This admission as to the accuracy of the contents of that clinical note leads the Tribunal to conclude that the evidence given by the applicant that the paragraphs of his wife’s police statement previously referred to by him were incorrect, was false. Once again, it does not reflect well upon him. It reflects a tendency on his part to give evidence a certain way and then seek to retreat when confronted with evidence that establishes the inaccuracy or incorrectness of his previous position.
Another shift in the applicant’s evidence arose with respect to his recollections of, and explanations concerning the appearances in the Magistrates’ Court of Victoria in October 2012 and February 2013.
Concerning the October 2012 appearance at the Sunshine Magistrates’ Court, the applicant initially stated that he could not remember what happened. He acknowledged that he ended up at court. At one stage of his evidence concerning this topic, he said he thought that the case was thrown out of court. However, when pressed he reluctantly conceded that the charge did involve domestic violence. Further, he reluctantly conceded that he had assaulted his wife. It took some questioning to elicit this evidence from him. It seemed apparent to the Tribunal that the applicant knew full well that he had been charged and found guilty of an assault committed on his wife. Once again, his evidence shifted, and it appeared to have the hallmarks of someone attempting to downplay the nature of his offending or otherwise portray it in a different light.
With respect to his February 2013 appearance at the Werribee Magistrates’ Court, the applicant insisted that he did not remember it at all. He stated he did not remember being there. When pressed he acknowledged that he did remember being there and that it was a charge of unlawful assault against him having been committed against his wife. Once again, this aspect of his evidence did not portray the applicant in a particularly favourable light.
THE APPLICANT’S OFFENDING FOR WHICH HE WAS CONVICTED IN THE COUNTY COURT OF VICTORIA ON 23 MARCH 2020
Details of the applicant’s offending for which he was convicted on 23 March 2020 were available to the Tribunal from several sources. As already noted, they include the Reasons for Sentence of the sentencing judge, the several police statements made by the applicant’s wife and two of his sons, a report of a Forensic Physician and several other documents. Apparently, the incident was recorded on CCTV footage which was not tendered in evidence before the Tribunal. The sentencing judge described the CCTV footage as capturing the applicant’s aggression and his demeanour in the lead up to the infliction of the serious injury on his wife.
The events that led to the applicant’s conviction occurred on 18 June 2018. After arriving home from work, the applicant and his wife were drinking. Also present in the house were their four sons. The two elder sons were nearby and the other two in bed.
The applicant and his wife at some stage discussed financial matters. Although the applicant in the witness box disputed this and stated that the discussion related to custody of their children, the Tribunal prefers the version given by his wife, which was accepted by the sentencing judge in his reasons. The discussions escalated into a disagreement between them. The applicant was described as becoming increasingly angry and gesticulating in an aggressive manner.
The applicant then smacked or slapped a plate that his wife was holding with a sandwich on it towards her in an aggressive manner and then punched her to the head. In her statement she described it as, “copping punches to my head”. His son, LM, described the applicant as punching his mother in the head with a closed fist. Upon observing this, LM intervened telling the applicant to stop it and calm down. He described the applicant as angry. The applicant responded by turning on his son and striking him to the face.
Seeing the applicant striking his son in the face, his wife attempted to intervene. The sentencing judge described the applicant then engaging in a protracted assault in relation to his son LM, and further assaulting his wife as she attempted to render assistance to him. Shortly afterwards LM picked himself up from the floor, where he had apparently landed following the assault on him by the applicant, and he was grabbed around the neck by the applicant almost tearing off his upper clothing. At that stage the other son present, EM, was holding a phone and the applicant dared him to call the police. He further told his wife to take the children and leave. In an aggressive manner, removing his dressing gown, leaving his T-shirt and tracksuit pants on, the applicant pursued his wife down the hallway, who was clearly trying to escape the situation, and slapped her again.
After this the applicant then went to the master bedroom and retrieved a machete which he kept near his bed. When asked why he kept a machete near his bed in his evidence, he explained that there had been a high level of criminal activity in the Tarneit neighbourhood, including home invasions or robberies, and it was kept to protect his family. The machete was described by the applicant in his evidence as “a big proper one at least 50 cm long”. Having retrieved the machete, the applicant then returned to where his wife was as she retreated down the hallway towards the front door. When he caught up to her, he held the machete up against her neck as she continued to attempt to retreat. Whilst doing this, the applicant shouted at her “This is what you wanted”. She was petrified and yelled, “I don’t want to die, I don’t want to die”.
Shortly afterwards the applicant struck his wife with the machete to her left forearm causing a serious incised wound which bled profusely.[13] There was evidence before the Tribunal that she lost between approximately 1.5 and 2 litres of blood.[14] She described going into shock, slipping down from up against the wall to the floor and reaching for the front doors.
[13] The sentencing judge described the injury being to the victim’s “right upper arm”. However, when one examines the records in evidence, including the Forensic Physician’s report, this is clearly an error in the reasons.
[14] This fact was recorded in an entry contained in an "Emergency Trauma/Resuscitation Chart" of the Royal Melbourne Hospital made on 18 June 2018 (RTB 84).
At the time the applicant struck his wife with the machete, his son LM was present nearby. He observed his mother bleeding profusely, holding onto a front door screen. The applicant then asked LM if he had called the police. When he replied that he had not, the applicant snatched the phone from his hand.
The applicant’s wife then managed to leave the premises, running out the front door and shortly thereafter collapsing in the middle of the road. Shortly before, or at the time of doing so, she told the applicant that she would say she had caused the injury to herself.
Shortly after collapsing on the roadway, the applicant’s wife, it appears momentarily, lost consciousness. Upon regaining consciousness, the applicant was applying pressure to her wound with both hands. He told his son LM to bring out a blanket which he did shortly afterwards. By this time, several neighbours had appeared on the scene and were congregating around the applicant’s wife. One of the neighbours asked what had happened to her and the applicant responded, “[s]he hurt herself”.
Upon the arrival of ambulance and police officers whilst others, mostly neighbours, were surrounding her, the applicant’s wife kept repeating to those present that she had hurt herself.
The applicant was then arrested by the police. He was conveyed by police to the Werribee police station where he made a “no comment” record of interview. He was remanded in custody until he was sentenced on 23 March 2020. Bail was denied. He has been in prison and then immigration detention since that date.
There was, as noted earlier, a report from a Forensic Physician describing the injuries suffered by the applicant’s wife. The sentencing judge described the serious injuries inflicted to her as an incised wound to the outer aspect of the left forearm, involving a posterior complete severing of the nerve of the forearm and incomplete severing of the muscles of the forearm. She also received a linear superficial appearing wound to her left upper neck just below the jawline and a further linear superficial appearing wound to her left neck just below the other left neck injury described that was slightly longer in length. As has already been recorded, these wounds were consistent with her description of the actions of the applicant in holding the machete up against her neck.
The applicant’s wife was conveyed to the Royal Melbourne Hospital. She spent six days in hospital for the purposes of treatment. She had surgery on her left forearm together with plastic surgery to repair muscle tendons and nerve damage caused by the attack with the machete.
The sentencing judge also stated, which is indeed the case, that the applicant’s wife suffered a life-threatening injury at the time, if it were not treated properly. Similarly, the amount of bleeding experienced by her could also have been limb threatening if not treated properly. The Forensic Physician in her report explained that the level of blood loss experienced by her can be limb threatening because the decreased blood supply can lead to death of muscles, tendons, and nerves in a limb.
With respect to the applicant’s wife’s injuries, the sentencing judge recorded that at the time of sentencing, they had not resolved. She had a lengthy, painful, and frustrating rehabilitation. Additionally, there is permanent scarring.
The Forensic Physician in a section of her report concerning the seriousness of the injuries sustained by the applicant’s wife in the incident, opined that the most likely outcome is that she will not fully regain the function of her left wrist and hand. She also expressed the opinion that she had suffered a serious injury.
PRIMARY CONSIDERATIONS
Paragraph 8.1 of Direction 99 – Protection of the Australian community
Paragraph 8.1(1) of Direction 99 provides that 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. It further states that 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.
Paragraph 8.1(2) of Direction 99 states 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.
Paragraph 8.1.1 of Direction 99 – The nature and seriousness of the applicant’s conduct
Paragraph 8.1.1(1) of Direction 99 identifies several factors that a decision-maker must have regard to when considering the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. The range of factors enumerated in that paragraph are not exclusive.
Paragraph 8.1.1(a) of Direction 99 provides that without limiting the range of conduct that may be considered very serious, amongst other things, the types of crimes or conduct viewed very seriously by the Australian Government and the Australian community include:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed; and
(iii)acts of family violence, regardless of whether there is a conviction for an offence or sentence imposed.
Additionally, para 8.1.1(1)(c) of Direction 99 provides in considering the nature and seriousness of the non-citizen’s criminal offending, decision-makers must have regard to the sentence imposed by the courts for a crime or crimes.
Paragraph 8.1.1(1)(d) of Direction 99 also states that the Tribunal must have regard to the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness.
Finally, under para 8.1.1(1)(e) of Direction 99, the Tribunal is also required to have regard to the cumulative effect of repeated offending.
At the outset, when applying this primary consideration of Direction 99, it is demonstrable that the applicant’s offending on 18 June 2018, as well as those matters for which he was sentenced in the Magistrates’ Court of Victoria in October 2012 and February 2013, were crimes of violence within the meaning of para 8.1.1(1)(a)(i) of the Direction. They were also crimes of a violent nature against a woman and also constituted an act of family violence under para 8.1.1(1)(a)(iii). This is clearly conduct viewed by the Australian Government and the Australian community as very serious. Australian society has no tolerance for family violence. It is also of concern with respect to the applicant that he has committed acts of family violence on three occasions that have resulted in court appearances. He appears not to have learned his lesson. One would have hoped that after his first appearance in the Magistrates’ Court of Victoria, he would have appreciated that he just could not commit further acts of family violence. It is regrettable that he did not do so.
The sentencing judge also made some pertinent comments concerning the applicant’s offending for which he was sentenced on 23 March 2020 that warrant repeating. He described, and was clearly satisfied that it was the case, that the applicant’s wife had endured a lengthy relationship of abuse and control, including physical, psychological, and financial violence. Further, as has already been touched on, the applicant’s wife in her police statement outlined a lengthy history of the domestic violence that she had been subjected to for many years. It was plainly unacceptable conduct on the part of the applicant.
Comment was also made by the sentencing judge about the fact that the applicant’s wife stated that she had caused the injury she suffered herself. She made these statements on several occasions in the presence of police, ambulance officers and her neighbours. In her police statement she stated that she continued the lie until she heard her husband had been arrested and she knew she was then safe. The sentencing judge described this conduct as very revealing. The Tribunal completely agrees. He further observed that the fact that the applicant’s wife was prepared to say she had caused the injury to herself was illustrative of the context of his offending, the history of their relationship, and the dynamic between them. He also stated, and the Tribunal completely agrees with such observations, that it was a revealing expression of the power imbalance in the relationship, with the applicant as the self-righteous oppressor and his wife the vulnerable subject of such oppressive conduct.
The sentencing judge had the opportunity to view the CCTV footage of the applicant’s offending on the evening of June 2018. He described the applicant’s conduct as shameful. It was further noted by him that in sworn evidence the applicant gave to him he characterised the CCTV footage as horrendous, uncomfortable to watch, horrible, appalling and acknowledged how terrifying it must have been for his victims. He also offered the assessment that it depicted him as a monster. The judge stated he would emphasise each of the adjectives chosen by the applicant to describe his offending, but would also add the terms “cowardly, callous and vicious”. It is hard to disagree with such an assessment.
Another factor which establishes the extremely serious nature of the applicant’s offending on 18 June 2018 arises particularly from the terribly serious injuries suffered by his wife. Details of those injuries have been outlined earlier in these reasons. They were both potentially life threatening and limb threatening. There was a significant loss of blood. The applicant’s wife required treatment in hospital for six days. They were just terrible injuries.

The sentencing judge, in a section of his reasons headed “Objective gravity”, described the applicant’s offending on 18 June 2018 as a very serious example of the offence of recklessly causing serious injury. He described the witness accounts, obviously contained in the police statements, together with the CCTV footage as depicting a frightening episode of family violence. It was also pointed out by the judge that the applicant was of a superior size. In evidence the applicant stated he was at the time of the offending roughly 130 kg. He clearly was a physically imposing man overpowering with great force his defenceless wife. The judge described the fact that the victim no doubt felt helpless, powerless and extremely fearful once the applicant’s aggressive argument spilled over into unbridled violence.
In other passages of the sentencing judge’s reasons, he stated that, “what played out on 18 June 2018 was very serious and extreme offending”. On another occasion he described it as “horrendous offending”. These descriptors of the applicant’s offending on that night are clearly accurate and encapsulate the extreme gravity of such offending.
In another section of the sentencing judge’s reasons headed “Gravity of serious injury offences in the context of family violence”, he identified the following “serious factors” in the applicant’s offending. The Tribunal endorses this analysis and considers it appropriate to reproduce them in full as they bear testament to just how horrendous the applicant’s conduct was on the night in question. They were:
“You were engaged in unprovoked and frightening assaults on your wife and son in the home.
Your son was viciously assaulted because he tried to intervene in your assault on his mother.
Your level of aggression from the outset is significant.
You are a large and powerful man in comparison to your victims.
Notwithstanding your physical superiority, the fact that you were completely dominant and your victims were fleeing from you, you paused to retrieve a lethal weapon from your bedroom.
The weapon was a large machete, a heavy bladed weapon of frightening appearance.
You further assaulted your cowering wife with the weapon, deliberately striking her once to the arm.
The injury inflicted was limb-threatening and life-threatening if she did not receive prompt medical attention.
She pleaded with you that she did not want to die.
She told you that she would accept responsibility for the injury and you acquiesced by your silence when the authorities attended.
The protracted episode unfolded in front of all of your sons who were clearly terrified.
The offending occurred against the background of family violence and abuse including specifically to former instances of assault on (your wife).”
The sentence imposed on the applicant in the County Court of Victoria is also relevant to, and instructive of, the seriousness of the applicant’s offending. It will be recalled that the judge imposed a total effective sentence of 5 years and 3 months. There was a non-parole period of 3 years and 3 months. It is a significant custodial sentence. It was one properly imposed for horrendous and outrageous offending against defenceless victims.
As for the frequency of the applicant’s offending, it is of concern that the applicant committed acts of family violence on three occasions from 2012 to 2018 that resulted in court appearances. As observed earlier, the applicant did not learn from his earlier appearances in the Magistrates’ Court when he previously committed acts of family violence. It is of concern that he did not do so. It has been commented on earlier in these reasons that the applicant presented as a not unintelligent man. Those earlier appearances in the Magistrates’ Court must have resonated with him and given him occasion to reflect on what he had done. It seems inconceivable that he did not appreciate from those earlier experiences in court that acts of family violence are completely unacceptable and unlawful. Those appearances should have been a wake-up call. Regrettably, they did not deter him from committing further horrendous acts of family violence on 18 June 2018.
From his first appearance in the Sunshine Magistrates” Court in 2012 and his 2013 appearance in the Werribee Magistrates’ Court, there was also a regrettable trend of increasing seriousness in the applicant’s offending between the crime of assault against his wife that he committed and the crimes that he committed on 18 June 2018 for which he was subsequently sentenced in the County Court of Victoria. It is not unreasonable to find that there was a massive leap in the seriousness of his offending from 2013 to 2018. In a sense it defies comprehension.
As for the cumulative effect of the applicant’s repeated offending, there are several aspects to it. As the sentencing judge observed with respect to the applicant’s offending on 18 June 2018, the physical, psychological and emotional impact upon his wife is significant and ongoing. The expert evidence from the Forensic Physician that is before the Tribunal indicates that his wife most likely will not fully regain the function of her left wrist and hand. She has permanent scarring to her forearm. There is also likely to be continuing weakness to her wrist.
Whilst there was no evidence on the topic directly before the Tribunal, it would seem more probable than not, that the effect on the applicant’s children would be significant. Almost certainly, there would be some residual emotional and psychological effect on them. Their son, LM, who was assaulted by the applicant after attempting to intervene to protect his mother, is particularly likely to have been affected. Being punched in the face by one’s father about six times would unquestionably have a lasting effect, quite possibly for a lifetime, on a son. The sentencing judge’s remarks in the County Court of Victoria concerning what his sons had to observe on 18 June 2018 do bear repeating, namely that the protracted episode unfolded in front of his sons who he observed were clearly terrified.
There seems little doubt that another aspect of the cumulative effect of the applicant’s offending is that the family unit has been irretrievably fractured. Apart from one visit by one of his sons whilst in immigration detention, the applicant has had no contact with them since he committed the offences on the evening of 18 June 2018.
A further cumulative effect of the applicant’s offending, certainly on 18 June 2018, involves the diversion or application of ambulance, hospital, and policing resources to attend to the matter. This diversion was completely and utterly caused by nothing other than the applicant’s offending.
Also, subsequently there was the application of police, prosecutorial, court, prison and custodial services directly occasioned by his offending. Apart from being an unnecessary diversion of those resources that was all wholly avoidable, it must have resulted in a significant cost to the taxpayer.
Given the above matters, the Tribunal can only conclude that the applicant’s offending is extremely serious indeed. They involved acts of a violent nature against women and acts of family violence within the meaning of paragraph 4 of Direction 99. The Tribunal agrees with the conclusions of the sentencing judge that the applicant’s offending was horrendous, cowardly, callous and vicious. The life threatening and limb threatening nature of the injuries suffered by the applicant’s wife bear testament to the extremely serious nature of his offending. Therefore, the Tribunal concludes that extremely heavy weight must attach to this primary consideration against revocation of the mandatory cancellation of the visa.
Paragraph 8.1.2 of Direction 99 – The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction 99 relevantly provides:
(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).
When one has regard to the nature of the harm to individuals or the Australian community should the applicant engage in further criminal conduct, it is apparent that such harm, more probably than not, would encapsulate physical and psychological injury to the applicant’s victims. These categories of injuries would most likely arise in the context of acts of family violence for which the applicant has already been sentenced on three separate occasions.
Much has already been recorded in these reasons about the significant injuries that the applicant inflicted on his wife. They were potentially both life threatening and limb threatening if not promptly treated. He also punched his son in the face approximately six times with his fists. It was not apparent from the material whether his son suffered injuries as a result of these punches. Nonetheless, the potential for serious injury to be caused by punching a person to the head cannot be underestimated. In a more extreme case, it is possible for someone who is struck to the head to fall backwards, striking the pavement and sometimes suffering life-threatening injuries.
With respect to the likelihood of the applicant engaging in further criminal conduct or reoffending, the Tribunal is faced with a difficult task. There is limited evidence before it which addresses the applicant’s risk of recidivism. Unfortunately, there is no evidence such as from a clinical phycologist or other suitably qualified professional which specifically expresses an opinion concerning the risk or likelihood of the applicant reoffending, as one often sees in applications such as this before the Tribunal. There was a report from a well-known clinical psychologist, Mr Cummins, before the sentencing judge in the County Court of Victoria. He had conducted a psychological examination of the applicant for the purposes of the plea hearing. Unfortunately, that report was not in evidence before the Tribunal at the hearing of this application. It most likely would have assisted the Tribunal to address this primary consideration.
The applicant contended that he is a low risk of reoffending. In support of this contention, he relied upon the sentencing judge’s comments that, in his assessment, the applicant’s prospects of rehabilitation are very good. He also contended that whilst in custody he has had the opportunity to deeply reflect upon his actions. Additionally, he placed significant emphasis on the various courses that he has undertaken whilst in custody, both vocational and others, surrounding drug and alcohol use. He described having taken the opportunity to improve himself and be a better man. By participating in the drug and alcohol courses, the applicant explained that he had come to terms with the fact that he has a problem with alcohol. It has made him realise that if he is released into the community, he will need to have a support system to remain abstinent.
There can be little doubt from the material that alcohol has been a problem for the applicant over some time. The sentencing judge observed that the applicant stated, in hindsight, at the time he considered he was a functioning alcoholic. There was also an extract from a report prepared by Mr Cummins who reported the applicant informing him that he was addicted to alcohol. The judge found that excessive alcohol consumption provided part of the context for the applicant’s offending. He acknowledged drinking up to two slabs of beer per drinking session. He was described as self-medicating on alcohol. The applicant in the witness box disputed this finding and stated he drank approximately two slabs of beer a week. The respondent submitted that that the applicant’s evidence that was drinking two slabs of beer a week, as opposed to per sitting, should be accepted. The Tribunal agrees. Although Mr Cummins report was not in evidence before the Tribunal, it seems unlikely that Mr Cummins, who is a well-respected expert, would have been so wrong. More probably than not he faithfully recorded what the applicant instructed him at the time.
The sentencing judge in his reasons expressed the view that in his assessment, the applicant’s prospects of rehabilitation are very good. In reaching this conclusion the judge made several observations. He stated that he could not recall ever encountering a prisoner on remand who had completed as many rehabilitative and occupational courses as the applicant. It is also apparent that since his sentencing, the applicant has completed a vast array of courses. They are indeed too numerous to warrant specific reference in these reasons. However, by way of example, there were in evidence a bundle of “Prisoner Education Summary Reports” which record many courses that the applicant has undertaken.[15] Additionally, the applicant has attended a number of courses and programs conducted within the prison system addressing drug and alcohol issues.[16] The applicant also completed quite a number of vocational courses offered in the prison by both the Kangan and Box Hill Institutes.
[15] RTB 298-320.
[16] By way of example, at page 360 of the RTB, there was a Certificate of Completion of a "24hr Drug and Alcohol Program” conducted by the Caraniche Institute. There were several other reports from clinicians who had seen the applicant during his time in prison which referred to several courses he had undertaken and the interactions they had with him. Amongst other things, they described the applicant as a motivated student. Details of other courses and programs undertaken by the applicant concerning alcohol and domestic violence are also found at pages 119, 201, 273, 297, 333-42 and 355-94 of the RTB. A further summary of many of the programs and courses undertaken by the applicant whilst in custody can also be found at pages 81-88 of the G documents.
Another factor that, to some extent, the applicant identified as pointing to him being a comparatively low risk of reoffending arises from the fact that, save for one or two minor occasions, the applicant has overall been a model prisoner. In addition to the range of vocational and rehabilitative courses that the applicant has undertaken, he has also endeavoured to work as much as he can in the prison system. He had a canteen position in the prison from Monday to Friday. Additionally, he worked in the prison bakery on weekends outside hours. Reference should also be made to the fact that whilst in prison, the applicant did work as a prisoner welfare support person, worked as a pastor, was a “peer listener” and certainly arranged activities for fellow prisoners.
In terms of risk, the Tribunal is very concerned about several matters that would indicate that the applicant is more than a mere low risk of reoffending as he contends.
In the section above entitled “Some observations concerning the applicant’s evidence”, the Tribunal identified several aspects of the applicant’s evidence that were unsatisfactory. Those observations are referred to and repeated. The Tribunal is concerned, given its findings that there was an approach by the applicant to downplay the gravity of his offending and in some way deflect responsibility onto his wife or engage in some level of “victim blaming”, that he has not fully gained an appropriate level of insight into the nature and gravity of his offending.
Further in this regard, the observations in that section concerning the applicant’s family violence offences that were dealt within the Magistrates’ Court of Victoria in 2012 and 2013 are of concern. Those concerns are repeated. Also, concerning those offences were the observations of the trial judge that when the applicant was cross-examined about them at the plea hearing in the County Court of Victoria on 19 March 2020, he was, to quote the judge, “vague, almost dismissive of these matters”. This is disturbing given that the applicant had by then been on remand for the better part of 2 years. It is a further foundation for reaching a conclusion that the applicant has not fully come to terms with his offending, being crimes of domestic violence, nor gained an appropriate level of insight into the gravity and seriousness of it.
Another factor in terms of assessing the applicant’s risk of reoffending relates to alcohol. To his credit, the applicant acknowledges that he has a problem with alcohol and that he just cannot drink. Acknowledgement is also given to the applicant for the various courses that he has undertaken whilst in custody and immigration detention concerning alcohol problems. However, as is frequently noted in cases like this, the applicant remains untested in the community. It is apparent that previously the applicant had a massive drinking problem. If released into the community, there is a risk that the applicant could relapse. The applicant acknowledged this in his evidence. He stated he intends to implement strategies to avoid relapse. In some of the documentation recording sessions with a clinician at the Marngoneet Correction Centre, it is recorded that the applicant felt confident of his ability to maintain abstinent once released from custody, stating that he would continue to focus on relapse prevention. The entry, however, recorded that the applicant presented as realistic in acknowledging his concerns in high-risk situations relating to the challenges he could face once released.[17] The Tribunal agrees with such concerns and the risk of reoffending that arises from them.
[17] RTB, 338.
In another progress note recorded following a consultation with a drug and alcohol psychologist in immigration detention, it is recorded that the applicant reported being concerned about alcohol use in the community. It recorded him expressing a desire to maintain his routine and sobriety in the community.[18] These are valid and proper concerns.
[18] Ibid 610.
The Tribunal considers that there must be some reasonable prospect of the applicant relapsing into alcohol consumption if he is released into the community. He clearly has a propensity for binge drinking and there must be also a likelihood that if he were to recommence drinking, that habit would resume. It is quite possible that having not been in contact with his sons, and of course his wife, for many years (which is prohibited by an intervention order) and if he were to binge drink, several factors might coalesce and lead to him reoffending. It is a risk that just cannot be taken.
Therefore, given the applicant’s lack of insight into his offending or “victim blaming” as described above, his attitude towards the offences committed in 2012 and 2013 and his issues with alcohol, the Tribunal considers there must be a reasonable risk of the applicant reoffending. Informed by the language used in para 8.1.2(1) of Direction 99 that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk it may be repeated may be unacceptable, the Tribunal concludes that very heavy weight must be attached to this primary consideration against revocation of the mandatory cancellation of the visa.
Primary consideration 8.2 of Direction 99 – Family violence committed by the non-citizen

Paragraph 8.2(1) of Direction 99 provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of remaining in Australia. It further specifies that the Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Reference should also be made to, amongst others, para 8.2(3) of Direction 99, which provides that in considering the seriousness of the 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 of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at the time of decision since the person’s last known act of family violence, including:
(i)the extent to which the person accepts responsibility for their family violence related conduct;
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witnesses of that abuse (particularly children);
(iii)efforts to address factors which contributed to their conduct.
Most of the matters that the Tribunal is required to take into account in applying this primary consideration of Direction 99 have already been canvassed in these reasons. Where appropriate they will be briefly repeated.
With respect to the frequency of the applicant’s acts of family violence, reference has already been made to the three occasions that the applicant has been dealt with by the courts. They were in 2012, 2013 and 2020. The facts and circumstances surrounding those court appearances, as best as they have been identified in evidence before the Tribunal, are referred to and repeated.
However, it is apparent from the material and evidence before the Tribunal that the applicant has engaged in acts of family violence against his wife for many years. Paragraph 8.2(2)(b) of Direction 99 provides that the primary consideration of family violence committed by the non-citizen is relevant in circumstances where there is information or evidence of independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence.
There was the witness statement made by the applicant’s wife to the police. When cross-examined as to its contents, the applicant in most instances conceded, albeit on some occasions reluctantly, that its contents were accurate. Therefore, by reason of the applicant’s concessions, the Tribunal accepts the contention of the respondent that this police statement comes from an independent and authoritative source within the meaning of para 8.2(2)(b) of Direction 99.[19]
[19] Reference was made in submissions by the respondent to the decision of Burley J in Aghbolagh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 43. He found that, when read as a whole, paragraph 8.2(2) of Direction 99 identifies the circumstances where the receipt by a decision-maker of information in relation to the perpetration of family violence is considered to be relevant. He also held that the Tribunal did not err in concluding that police narratives may be considered to be independent and authoritative sources for the purposes of applying that paragraph of the Direction. Given the concessions made by the applicant that the authenticity of most of his wife’s police statement and the corroboration of it by the applicant’s acceptance of the contents of the clinical note made by nursing staff at the Royal Melbourne Hospital after she was admitted for treatment on 19 June 2018 (RTB page 57), the Tribunal considers the statement to be a reliable source.
In that police statement by his wife, she recounted a history of abuse on the part of the applicant to her from when she was 20 years old. This included punching her and pulling her hair. Also, it included taking away her bank cards and controlling her. She recounted the applicant turning her friends and family against her. There was evidence in which she stated she could not remember how many hidings she had received from the applicant, that it was a way of life and normal to her, with such occurrences happening at least once every three months. She also explained that most of the time the applicant would hit her body, on occasions she had a black eye, but she would always make excuses and protect her children.
The applicant’s wife in the police statement also recounted several periods of separation and then resumption of the relationship. There was one occasion where they reunited and the applicant, during an incident following that resumption of the relationship, held a kitchen knife to her neck, punched and kicked her to her head. This was all done in front of their four children. She explained that the next day she had a black eye and lumps all over her face. That day at school, apparently one of their sons who was approximately six or seven years old at the time, told his teacher about it. The matter was reported to the Department of Human Services which led to an investigation being commenced by that agency. She explained that during the investigation they lied to, in effect, help the applicant and said that it was their son’s imagination caused by medication he was taking for his autism condition. It was shameful conduct. It was an appalling thing to do to a young and obviously vulnerable child. The exploitation of his disability to cover up acts of domestic violence by the applicant is one of the most reprehensible acts by a father imaginable. A father is supposed to care for a child with disabilities. On this occasion the applicant failed in this obligation miserably.
By reason of the three court appearances that the applicant has had for acts of family violence, together with the account given by his wife in her police statement, which is accepted by the Tribunal as an authoritative source of evidence, it is concluded that there has been a long and protracted history of family violence perpetrated by the applicant on his wife. Further, as it culminated on 18 June 2018, there was a trend of increasing seriousness of such acts of family violence.
Several aspects of the cumulative effect of the applicant’s repeated offending when committing acts of family violence have been set out at paragraphs 80 to 84 above. They are referred to and repeated for the purposes of applying this primary consideration.
Another cumulative effect of the applicant’s offending that perhaps should be elaborated on further, given that the Tribunal accepts the reliability of the contents of his wife’s police statement, is the complete fracturing it has caused to the family unit. This has several dimensions to it.
There was the evidence of his wife that the applicant has always tried to turn her friends and family against her and that it was a reason why they left New Zealand in the first place. This is extremely unfortunate indeed.
The applicant’s wife also gave evidence about financial control exercised by the applicant over her. Her salary was paid into the applicant’s bank account, and he then dispensed to her what she described as “pocket money”. She further explained that if the applicant was angry at her or the children, she would not receive any money and would need to borrow money from friends instead. On those occasions they would have no money for food.
In the witness box, the applicant stated that he and his wife had three outstanding Visa card debts at the relevant time and that they were under significant financial stresses as a result of the debts. He explained that most of the money, including his wife’s wages and salary, was paid by agreement between them into his account so that he could make regular payments in reduction of the Visa card balance as well as pay household bills from time to time. He steadfastly denied paying her any pocket money. Having had the opportunity to observe the applicant over some time in the witness box, the Tribunal is prepared to accept that, it is more probable than not, that the applicant did exercise a significant level of financial control over his wife as she said in her police statement.
The effect of the applicant’s repeated acts of family violence on his four sons cannot be underestimated. It is quite apparent that they have borne witness to the conflict between their parents. They have observed the applicant commit acts of family violence against their mother. The children have also, from time to time, without any particular warning, had to leave the family home with their mother when several periods of separation between them occurred. This no doubt would have had a disruptive effect on the children, both emotionally and also with respect to schooling arrangements. The events of 18 June 2018 which were observed by his sons was, as the sentencing judge observed, terrifying for them.
There was the incident referred to above where one of the sons was obviously distressed enough to mention to his teacher what the applicant had done to his mother. One would assume that the son would have been in a state of considerable distress to have raised it with the teacher. Having done so, he was then confronted with the indignity of being called a liar (when indeed he was telling the truth) in the subsequent Department of Human Services investigation. Such an occurrence, more probably than not, would have had a terrible effect on a six- or seven-year-old boy. It is a very poor reflection on the applicant.
As for rehabilitation, the Tribunal has acknowledged that the applicant has undertaken a variety of courses and counselling whilst in prison. It acknowledges his evidence about his problems with alcohol and the need to remain abstinent if he is released into the community. However, as the Tribunal has explained earlier in the section “Some observations concerning the applicant’s evidence”, there are significant concerns about the extent to which the applicant accepts responsibility for his family violence conduct. The several changes in his evidence during the hearing of this application raise real doubts. It has been explained that this does indicate an attitude or approach on his part to downplay the gravity of his offending and in some respects seek to deflect responsibility onto his wife. There was a degree of “victim blaming”, or rather poor attempt to pass some degree of responsibility onto her. This is both highly relevant to an application of this primary consideration and, in particular, whether he has truly been rehabilitated.
Similarly, it reflects some doubt as to whether he really does understand the impact of his behaviour on both his wife and the son he assaulted, not to mention the other children who witnessed his behaviour on 18 June 2018, including its aftermath which must have been highly traumatic. It should be recalled that the applicant’s wife suffered significant blood loss, much of which could be seen in the hallway of the home and its immediate precincts. To see anyone in this state, or its aftermath, let alone one’s mother, would be extremely distressing.
Paragraph 8.2(3)(d) of Direction 99 also requires the Tribunal as decision-maker to consider 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, noting that the absence of a warning should not be considered to be in the non-citizen’s favour.
Almost invariably when a charge of family violence is found proven in a Magistrates’ Court, as was the case against the applicant at Sunshine and Werribee Courts in 2012 and 2013, the presiding Magistrate gives the defendant a robust warning in clear and unequivocal terms not to commit any further acts of family violence. It seems more probable than not that the applicant would have received such a warning on those occasions. This is highly likely to have been the case with respect to the two Magistrates’ Court cases because they were adjourned to a later date, usually, with the defendant being bound over to be of good behaviour. The purpose of such a step is to have the charges remain on foot so that if further offending occurs, the defendant can be prosecuted for the further offences and resentenced for the existing charges, as a previous offender. In a setting of family violence, it is a powerful deterrent against potential future offending.
When probed in the witness box about this during the hearing of this application, the applicant said he had no doubt that something like a warning was given in those courts. However, he just could not remember. When pushed a little further, he acknowledged there was a warning and agreed that it was a wake-up call or a jolt. He then said, “in spite of the warning, I reoffended in the future.” The respondent considered that notwithstanding the concession by the applicant, the Tribunal should not find that there was sufficient evidence for this sub-paragraph of Direction 99 to apply. Given this submission, the Tribunal will not attach any weight to this aspect of this primary consideration.
In conclusion, with respect to this primary consideration, the applicant has committed significant acts of family violence over a very long time span, culminating in the horrendous offending on 18 June 2018. There has therefore been a trend of increasing seriousness. Questions remain about the extent to which the applicant accepts responsibility for his family violence related conduct and the extent to which he understands the impact of his behaviour on his wife and his children, as explained. The Tribunal therefore finds that very heavy weight must be placed upon this primary consideration against revocation of the mandatory cancellation of the visa.
Primary consideration 8.3 of Direction 99 – The strength, nature and duration of ties to Australia
Paragraph 8.3 of Direction 99 states as follows:
(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) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers 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)the length of time the non-citizen has resided in the Australian community, noting that:
(i)considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
(ii)more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii)less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The applicant has lived in Australia for just short of 22 years after arriving from New Zealand. He has, however, spent most of the last 6 years in custody or immigration detention.
There was limited evidence before the Tribunal concerning the applicant’s relationship with his wife. He gave evidence that as far as he knew, he is still legally married to her. One of the parties apparently commenced divorce proceedings. However, they have not been finalised and no further steps to progress the matter have been taken.
There has been no contact between the applicant and his wife since 18 June 2018. The applicant gave evidence that an intervention order is in place, which it appears prevents him from having contact with both his wife and children as affected family members. Initially, shortly after he was arrested, the intervention order was made. However, the applicant in his evidence given in cross-examination stated that he had not made any enquiries concerning it since then. Only recently he has found out that the intervention order apparently is in force until the year 2030. The applicant stated that he is not precisely aware of the details of the intervention order and has taken steps through legal aid and the registry of the Magistrates’ Court to try and precisely determine its terms.
Given these facts, the Tribunal concludes that the applicant’s relationship with his wife is, for all intents and purposes, non-existent.
The applicant is the father of four sons. The two eldest sons were born in New Zealand and are permanent residents or citizens of Australia. The other two sons were born in Australia. The oldest son is 23, having been born in June 2000, the second son is 21 having been born in April 2002, the third son is 17 having been born in October 2006 and the youngest son is 16 having been born in December 2007.
None of the applicant’s sons gave evidence in any form before the Tribunal. Their views are not known other than brief references made by the applicant’s mother and a cousin in their statements.
Since his arrest on 18 June 2018, the applicant has only seen one son, LM, when he visited the applicant at the immigration detention facility with his grandmother (the applicant’s mother) in December 2023. Apparently, his son came with his grandmother of his own accord. The applicant stated that he had made no attempt to further contact LM following his visit as he was concerned that such contact may have breached the terms of any intervention order that may be in force. He stressed that he does not wish to breach the terms of such an order.
The applicant’s mother made a statement that was in evidence before the Tribunal. She did not give oral evidence of the hearing of the application. In her written statement, she gave limited evidence concerning the applicant’s relationship with his sons. She also gave limited evidence about the impact that his absence over more than 5 years had upon them. Her evidence indicated that the applicant’s sons have struggled to cope with what she described as challenges and uncertainties without his emotional support and guidance during their formative years. She also contended that the applicant’s sons have been greatly impacted by his incarceration. She stated the reason for this was that he had always been present and available for them, offering stability and emotional support. Unfortunately, the applicant’s mother did not in her statement indicate how frequently she sees the applicant’s four sons. Further, she did not explain in any real detail what discussions or contact she has had with them where they have expressed what effect the applicant’s actions and absence from their lives has had upon them. She expressed the opinion that if the applicant were not permitted to stay in Australia, it would have the biggest impact on his children. Whilst the Tribunal acknowledges these observations by the applicant’s mother and they have been taken into account, they were not tested. Further, they were of limited scope. Additionally, she did not provide any information about what the son’s mother’s attitude may be, which the Tribunal considers to be particularly important given the history of the matter.

One of the applicant’s brothers made an undated and unsigned statement. He did not give oral evidence at the hearing of the application. He expressed familiarity with the applicant and his four sons, describing the applicant as a devoted father to them with a strong sense of familial duty and love. He also made limited reference to the effect that it would have on the applicant’s sons in the event that the applicant was to return to New Zealand. He expressed a general opinion that such a separation of the applicant from his children would present complex emotional, practical and relationship challenges for all involved. Further, he expressed the opinion that as young men, or about to reach maturity, they would derive benefit from having their father present in their lives, presumably in Australia.
There is no other direct evidence before the Tribunal concerning the question of whether the applicant’s sons wish to re-establish contact with him or what their attitude might be to potentially doing so in the future. Certainly, there are no statements from them. As for his sons’ current living arrangements, the applicant gave evidence that to his knowledge only one son, EM, continues to live with his mother.
One of the applicant’s cousins, in a statement made on 14 February 2024, said that she sees the applicant’s four sons often and that they stay with her family on weekends, coming and going as they please. She stated that they all love their father and wish to see him again soon. This statement has not been corroborated or verified by any other witness including the boys themselves, bearing in mind that the two eldest sons are now adults.
The respondent accepted, as is the case, that the applicant has several friends and relatives in Australia, some of whom made statements. Additionally, RE gave oral evidence from the witness box. Two cousins have made statements in support of the applicant and have clearly been prepared to stand by him notwithstanding the offences that he has committed and the comparatively lengthy term of imprisonment that he has undergone. They are clearly close.
RE also submitted in his evidence that the applicant, if given the opportunity to stay in Australia, would be able to give his sons only the love that a father can give them. He also attested to the fact that the applicant is very motivated to make a contribution to his sons’ lives. Finally, RE said that what the applicant did not damage was his ability to be a father.
In addition to his two cousins to whom he is close, the applicant reports having a large extended family in Australia. In the relevant section entitled “Family Details” of the Personal Circumstances Form, when requested to state how many other relatives he had in Australia or overseas, he responded with 30+ uncles and aunts, 10+ nieces and nephews and 20+ cousins.[20] These people are not identified by name, age or location and no other evidence was forthcoming at the hearing of the application concerning them.
[20] G4, 75.
There was a suggestion in some of the material that the applicant’s mother was residing in Australia whilst he had been in prison. In evidence from him, it emerged that this was not the case. What has in fact occurred is that as often as she is able to afford it, his mother has travelled from New Zealand to Australia to visit the applicant. It is evident that she has supported her son and stuck by him during his period of imprisonment.
There are several other matters that primary consideration 8.3 of Direction 99 requires the Tribunal as decision-maker to take into account.
The applicant has resided permanently in Australia since the year 2002. Having arrived at the age of 25, his formative years were not spent in Australia.
He and his wife purchased the family home in Tarneit.
Until his arrest on 18 June 2018, the applicant worked continuously in several positions, usually with major corporations. By the time of his arrest, he had been promoted to a human resources position with Toyota Manufacturing Corporation Australia. It was a responsible position and is very much to his credit that he was able to achieve such a promotion, although he had no formal training in human resources as such. The applicant’s progress at Toyota was impressive.
He commenced working there in 2007,[21] originally in a fabrication and welding position. He rose to the role of a team leader with responsibility for approximately 20 people. Additionally, he undertook positions as a union and occupational health and safety representative. In these roles he did undergo a level of training concerning what he described as case management work. Eventually in approximately 2015 he transferred to the human resources position. The applicant gave evidence that this position was particularly demanding. The main reason for this was that reasonably soon after his promotion to the position, Toyota decided to cease manufacturing activities in Australia. This led to the retrenchment of 2500 workers, which was not an easy task. The applicant was subjected to a significant amount of ill feeling from many of those workers who were very angry at their retrenchment. The applicant in his evidence described them as seeing his role as a “huge betrayal” and that the workers considered that Toyota human resources staff such as him were simply not doing enough to accommodate the difficult position that many of the retrenched workers found themselves in. The Tribunal acknowledges the contribution that the applicant made when fulfilling these roles at Toyota.
[21] Ibid 40; 77.
There was other evidence of a positive contribution that the applicant made to the Australian community during the time that he has resided here. Prior to his imprisonment, he was a leader of the local Neighbourhood Watch Group for approximately 12 months. In that capacity, amongst other things, he did liaise with, and provide feedback to, the police concerning local public safety matters. He also figured prominently in the local branch of a campaign known as “National Tree Planting Day”. This organisation, it appears, was engaging in planting of many trees as a carbon capture and climate change measure. The applicant also gave evidence that he had worked on a committee established by the Werribee City Council known as “Werribee Future Planning 2020”. The committee discharged a function of providing some level of advice to the Werribee City Council on its future directions and planning in what is a rapidly growing municipality. There was also some brief evidence from the applicant that he was involved in a local church.
Given that his four sons and several other family members reside in Australia, his contribution to the country prior to his arrest and imprisonment and his good employment record prior to that time, the Tribunal considers that moderate weight must be placed upon this primary consideration in favour of revocation of the mandatory cancellation of the visa.
In conclusion, the Tribunal should record that in the absence of more evidence concerning the strength, or otherwise, of his relationship with his four sons, the Tribunal is unable to reach a conclusion that anything more than moderate weight in favour of revocation of the mandatory cancellation of the visa should attach to this primary consideration.
Primary consideration 8.4 of Direction 99 – Best interests of minor children in Australia affected by the decision
This paragraph of Direction 99 requires the Tribunal, as decision-maker, to determine whether the non-revocation of the cancellation of the visa is, or is not, in the best interests of a child who is affected by the decision. The consideration applies only if the child is, or would be, under 18 years old at the time when the decision not to revoke the mandatory cancellation of the visa is expected to be made.
Paragraph 8.4(4) of Direction 99 specifies several factors that must be considered by the decision-maker where relevant. They include:
(a)the nature and duration of the relationship between the child and the non-citizen;
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18 and including any court orders relating to parental access;
(c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child;
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
As previously noted, there are two minor children, one born in October 2006, who is presently 17 years of age, and another born in December 2007 who is presently 16 years of age.
Generally, in the absence of good evidence to the contrary, it is in the best interests of minor children to have contact with both their mother and father to some extent. Apart from the period when the applicant has been in custody or immigration detention, on the relatively scant evidence before the Tribunal, it appears that when the applicant and his wife separated, as they had done on several occasions, he had access to them usually every second weekend. This is a factor that, to some degree, weighs in favour of revocation of the mandatory cancellation of the visa as it is in the minor children’s best interests.
However, this “general rule”, if it may be categorised in that way, must be subject to some flexibility and approached with a degree of realism. In this case, due to the applicant’s serious offending, particularly that of 18 June 2018, not to mention a persistent and lengthy pattern of family violence committed by him and separation from the minor children, such an approach cannot and should not be adopted in a completely inflexible manner.
With respect to the nature and duration of the relationship between the two minor children and their father, it must be described as rather fragmented. The applicant has been in immigration detention or custody for almost 6 years. There has been no contact between them during this time. This is during a significant portion of those sons’ important formative years. Additionally, prior to his incarceration, the applicant’s wife’s witness statement revealed that there had been significant periods of separation between them. This was to a considerable degree conceded by the applicant when he was in the witness box. The Tribunal has made observations earlier outlining why it accepts the contents of his wife’s witness statement. Those observations are referred to and repeated for the purposes of applying this primary consideration.
According to her statement, she left the applicant with the children in April 2017. There were other periods of separation for 2 years in 2005-06 and again between March 2010 and November 2011. The applicant’s evidence was somewhat sketchy on the topic, but he stated in the witness box that during the most recent period of separation, he had access to his sons every second weekend. Applying the guidance contained in para 8.4(4)(a) of Direction 99, less weight should generally be given where there have been long periods of absence or limited meaningful contact, which is the case in this instance with respect to the applicant and his relationship with his two minor sons.
It is extremely difficult to assess the extent to which the applicant is likely to play a positive parental role in the future with respect to his two minor sons. The elder of the two, it will be recalled, will turn 18 later this year. The younger of the two turns 18 next year. There will be limited opportunities for the applicant to play any role in their lives, let alone a positive one. It appears due to an intervention order in force that the applicant will be unable to see his sons until such time as the order is varied to permit him to do so. Seeking a variation to the terms of an intervention order will almost invariably take some time. It is not known what the applicant’s wife’s attitude to such an application would be. If she were to contest such an application, which would seem highly likely, given the history of the matter, it could take considerable time, by the expiration of which the two minor sons may well have reached adulthood.
Another matter that is relevant to a consideration of whether the applicant is likely to play a positive parental role in the two minor sons’ lives in the future, is whether or not they actually wish to have anything to do with him. That position is not altogether clear. Reference has been made above in the section concerning the strength, nature and duration of ties to Australia to a statement made by the applicant’s cousin that his four boys stay with her on weekends, they love their father and wish to see him again soon. This statement has not been corroborated or verified and must therefore, in the absence of such corroboration or verification, be viewed with some level of caution. Given the unfortunate history of the applicant’s relationship with both his wife and his sons, it is quite possible that they may not wish to see him. Alternatively, if any relationship or role on the part of the applicant of a positive parental nature is to evolve, it may require a program of careful supervision and limited contact so some kind of rapport or role between them can be developed. This does leave one to speculate to a considerable degree with respect to this question.
As for the impact of the applicant’s prior conduct, it is apparent that he has exposed these two minor sons to horrendous acts of family violence which have been outlined earlier in these reasons. It is not completely known what effect this exposure to such acts of family violence on 18 June 2018 has had on the two younger sons. They were comparatively young when this occurred and it is not stretching the bounds of imagination to conclude that it was more probably than not, highly traumatic for them. This effect cannot be underestimated. However, while the sentencing judge found that the two younger sons were in bed, the applicant accepted during cross-examination that it was plausible that they were awake. From this it can be inferred that the two younger sons were also, or may have been, exposed to family violence on 18 June 2018. Other than this concession by the applicant, regrettably, there is no further evidence that enables a more accurate conclusion to be drawn on this topic one way or another.
As for any likely future conduct and whether that conduct has or will have a negative impact on the minor children, it should be repeated that both will reach the age of majority comparatively soon. If any contact is restored in the future between now and then, it is more likely than not to be limited, so the effect is difficult to gauge, but overall is unlikely to be significant. However, if a future relationship is to be established, and it is not to have a negative impact, it seems to the Tribunal given the history of this matter, that it will be totally dependent on the applicant continuing to abstain from the consumption of alcohol. The Tribunal has observed above that this is problematic. Those observations are referred to and repeated.
As for the likely effect that any separation from the applicant would have on the two minor sons, it is difficult to say. There have been substantial periods of separation already, including almost the last 6 years whilst the applicant has been in prison or immigration detention. Those were important formative years for the two younger sons. The limited time left before they turn 18 leads the Tribunal to conclude that the likely effect of any separation from the applicant on them would, in the scheme of things, probably be minimal. Assuming that, any prohibition contained in a subsisting intervention order can be varied, and contact between them resumed, given the lengthy periods of separation, contact in other ways such as by video or internet link, would in the circumstances be appropriate. Once the two minor sons reach the age of majority, which they will relatively soon, if they are minded to resume contact with the applicant, they would be able to do so whether he is in Australia or New Zealand.
With respect to any parental role, the applicant from the witness box contended that only one of the minor sons continues to live with their mother. It is not known how he is able to swear to this given he has only seen one son on one occasion whilst in immigration detention. According to a record made by the immigration detention organisation, two of the sons, presumably the minors, live with their mother, which the applicant disputed.[22] Whatever the current arrangements for the minor sons it seems more probable than not that their mother performs the sole parental role at this time.
[22] RTB, 566.
As to any known views of the children, no direct evidence was placed before the Tribunal. It should be repeated that the applicant’s cousin made a statement in which she asserted that she has regular contact with all of the applicant’s sons when they stay with her on weekends, coming and going as they please. She stated that they all love their father and wish to see him again soon and that were the applicant to be returned to New Zealand, it would be a devastating blow to them. It is unfortunate that the views of the children have not been able to be obtained which would enable the Tribunal to reach a more definitive conclusion on this question.
The applicant in his submissions overall referred to his children in their entirety rather than separating his contentions with respect to his children into one part concerning the adult children, and the other part concerning the minor children. However, for the purposes of applying this primary consideration, the Tribunal considers that the applicant’s contention is that he has strong feelings and a connection to his minor children. As he described them, they are “a big focus” and a strong motivating factor in his attempts at rehabilitation and the desire to have the mandatory cancellation of the visa revoked. This is understandable and the force in such contention is acknowledged.
The respondent contends that this primary consideration should be afforded limited, if any, weight in favour of revocation of the mandatory cancellation of the visa.
Overall, when applying this primary consideration, the Tribunal concludes that given the very long periods of separation from the two minor children, coupled with the comparatively short time before they reach 18 years, together with the fact that there has been a history of family violence over some time culminating in the events of 18 June 2018, limited weight should be attached to it.
Primary consideration 8.5 of Direction 99 – Expectations of the Australian community
Paragraph 8.5 of Direction 99, “Expectations of the Australian Community”, provides:
(1) 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 to not allow such a non-citizen to enter or remain in Australia.
(2) 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;
(b) causing a person to enter into, or being a party to (other than being a victim of), a forced marriage;
(b) 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;
(c) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
(d) 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
(e) worker exploitation.
(3) 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.
(4) 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.

In applying this primary consideration, it is instructive to refer to several passages from the decision in FYBR v Minister for Home Affairs which is frequently referred to in cases before this Tribunal and the courts.[23] Several passages from that decision explain that, as is apparent from an examination of a paragraph of an earlier Ministerial Direction expressed in similar language as this paragraph of Direction 99, to the extent it contains a statement of the expectations of the Australian community, the clause is “deeming”.[24] As Charlesworth J also explained, the clause imputes or ascribes to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[25] These expectations are established and are to be applied as norms.
[23] (2019) 272 FCR 454.
[24] Ibid.
[25] Ibid 472 [67].
As Mortimer J (as she then was) in YNQY v Minister for Immigration and Border Protection[26] observed, in substance, this consideration is adverse to any applicant where they have failed the character test and have been convicted of serious crimes.
[26] [2017] FCA 1466, 27-8 [76].
The expectations of the Australian community should be determined by reference to the provisions of Direction 99 itself, not by an independent assessment conducted by the Tribunal. The weight to be applied in undertaking the balancing exercise prescribed by Direction 99 is ultimately a matter for determination by the decision-maker, in this case the Tribunal, taking into account all relevant individual factors including countervailing factors from the person’s specific circumstances.[27]
[27] Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396, 19 [97].
There is absolutely no doubt that the applicant has engaged in serious conduct in breach of this expectation. To adopt the language contained in the preamble to para 8.5(2) of Direction 99, non-revocation of the mandatory cancellation of the visa is appropriate simply because the nature of the offences committed is such that the Australian community would expect that the applicant should not continue to hold a visa.
Specifically, the applicant has committed several acts of family violence as captured by para 8.5(2)(a) of Direction 99. The acts of family violence concerned have occurred over many years, there has been protracted and consistent abuse of his wife, they have involved minor children from time to time, and resulted in three court appearances. The family violence has culminated in the horrendous offending on 18 June 2018, causing dreadful injuries to his wife and which resulted in the applicant being sentenced to a lengthy term of imprisonment. It has already been mentioned, but should be repeated, that Australian society has no tolerance for family violence and the provisions of Direction 99, including para 8.5, “Expectations of the Australian Community”, reflect the expectation of the Australian community that a person’s visa will be cancelled when they have engaged in acts of family violence. The Australian community has repeatedly for many years sent a loud and clear message that family violence is intolerable.[28]
[28] DTR21 v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1237, 13 [70].
Further, the applicant has also committed serious crimes against women, as contemplated by para 8.5(2)(c) of Direction 99.
Also guided by para 5.2(3) of Direction 99, “Principles”, the Australian community expects that the Australian Government can and should cancel a person’s visa if they have engaged in conduct in Australia or elsewhere, that raises serious character concerns. The Tribunal is satisfied given the history of this matter that has been outlined above that these character concerns are raised. Therefore, the paragraph specifies that 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. However, the Tribunal has elsewhere in these reasons concluded that there must be a reasonable risk of the applicant reoffending.
Given the serious acts of family violence that the applicant has committed over some time, for the reasons outlined, the Tribunal concludes that substantial weight must attach to this primary consideration against revocation of the mandatory cancellation of the visa.
OTHER CONSIDERATIONS
Paragraph 9(1) of Direction 99 provides as follows:
In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
(a) legal consequences of the decision;
(b) extent of impediments if removed;
(c) impact on victims;
(d) impact on Australian business interests.
Paragraph 9.1 of Direction 99 – Legal consequences of the decision
Paragraph 9.1 of Direction 99, “Legal consequences of decision under section 501 or 501CA”, provides as follows:
(1) Decision-makers should 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.
(2) 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 non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of “protection obligations”, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
There were no submissions or representations to the Tribunal concerning this other consideration with respect to the legal consequences of the decision. Further, there was no evidence before the Tribunal which established that any international non-refoulement obligation arises in his favour. Therefore, no weight will be attached to this other consideration.
Paragraph 9.2 of Direction 99 – Extent of impediments if removed
Paragraph 9.2(1) of Direction 99 provides:
Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) the non-citizen’s age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
The applicant is presently 47 years of age. As for his health, there is limited evidence before the Tribunal. He apparently suffers from type 2 diabetes, asthma and, sporadically, gout.[29] There are some healthcare records that were produced on summons from the prison system and the immigration detention centre. They indicate that since the applicant has been in prison, he has undertaken a regime of healthy eating and regular exercise, which has amongst other things, improved his overall health and management of his diabetes condition. It has also led to significant weight loss which also must have concomitant health benefits. He has also taken some medication (metformin) to address his weight issues.
[29] RTB, 622.
Reference was made by the applicant in his evidence, and also in his Personal Circumstances Form, to mental health issues that have caused him concern. There was also some reference to the applicant’s mental health issues in the documents produced on summons from Corrections Victoria and the immigration detention centre. Whilst he has in both the prison system and immigration detention availed himself of assistance from clinicians (including psychologists, general practitioners and clinicians) concerning mental health issues, he has not consulted a psychiatrist or otherwise investigated the possibilities of other forms of mental health treatment.
The Tribunal concludes that appropriate medical support would be available to him to treat appropriately the medical conditions which he has. New Zealand has a good healthcare system, which, as a citizen of that country, he will be able to access in full.
There were no substantial language or cultural barriers identified in the material before the Tribunal. It will be recalled that the applicant came to Australia as a young adult. He clearly has considerable familiarity with New Zealand and more probably than not, would be able to adapt to it if need be.
There is no doubt that if the applicant returns to New Zealand there would be some initial difficulty, particularly at an emotional level and to some extent at a practical level. This is because his four sons reside in Australia, the lengthy period of incarceration and immigration detention that he has experienced, and that he would be returning to New Zealand permanently after an extended period away.
However, there are significant social supports that would be available to him if he returns. In addition to his mother who resides in New Zealand, he has two brothers present there. He is particularly close to one brother and has regular contact with him. He is not as close to his other brother but nonetheless on his evidence, has a perfectly good relationship with him. There appears to be no reason why these close family members would not be able to give him social and emotional support were he to return.
Additionally, in his Personal Circumstances Form, the applicant identified a very large extended family in New Zealand.[30] It is not known how close the applicant’s relationship with that large extended family is. However, it seems more probable than not that he could re-establish connections with them in the event of his return.
[30] G4, 75.
The applicant has undertaken a large number of vocational courses whilst he has been in custody. This is to his credit, and it seems that they would equip him reasonably well to obtain meaningful employment were he to return to New Zealand. It also appears that from the material, the applicant will be able to reside initially with either his mother or his brother if he returns to New Zealand. This will make it somewhat easier for him to re-establish himself if he is to return.
There do not appear to be any impediments that the applicant would face if removed from Australia to New Zealand in establishing himself and maintaining basic living standards given what is generally available to other citizens of that country. Indeed, the attributes that the applicant has demonstrated during his working life, both in New Zealand and Australia, indicate that he is adaptable and a hard-working contributor to any place of employment. With the range of experience he already has, coupled with the extensive number of vocationally focused courses he has undertaken, there seems no reason why he would not be able, in a relatively reasonable time, to re-establish himself and lead a productive life and will be able to take care of himself to a reasonable standard of living.
Overall, because the Tribunal has concluded the extent of impediments the applicant may face if removed are not substantial, limited weight will be placed upon this other consideration in favour of revocation of the mandatory cancellation of the visa.
Paragraph 9.3 of Direction 99 – Impact on victims
No real evidence was placed before the Tribunal concerning the impact of the 501CA decision on victims or family members of the victims of the applicant’s offending. Therefore, no weight will be placed on this other consideration.
There was no evidence concerning the impact in the relevant sense on his wife. Perhaps one might contend that given the history of family violence she has been exposed to by the applicant, it could be in her interests for the mandatory cancellation of the visa not to be revoked.
The only evidence, if any, concerning his son LM, was that he had visited the applicant in immigration detention in December last year. That evidence really did not enable the Tribunal to draw any conclusions about the impact on him as contemplated by this paragraph of Direction 99.
Paragraph 9.4 of Direction 99 – Impact on Australian business interests
There was no evidence before the Tribunal that related to this other consideration. Therefore, no weight will be attached to it.
CONCLUSION
Under para 8.1.1 of Direction 99 – The nature and seriousness of the applicant’s conduct, for the reasons articulated above, the Tribunal has concluded that extremely heavy weight must attach to that primary consideration against revocation of the mandatory cancellation of the visa.
With respect to para 8.1.2 of Direction 99 – The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct, very heavy weight has also been attached to such primary consideration against revocation of the mandatory cancellation of the visa.
Primary consideration 8.2 of Direction 99 – Family violence committed by the non-citizen has also attracted very heavy weight against revocation of the mandatory cancellation of the visa.
Concerning primary consideration 8.3 of Direction 99 – The strength, nature and duration of ties to Australia, the Tribunal places moderate weight in favour of revocation of the mandatory cancellation of the visa.
Under paragraph 8.4 of Direction 99 – Best interests of minor children in Australia affected by the decision, the Tribunal has attached limited weight to this primary consideration.
Given the serious acts of family violence committed by the applicant over some considerable time span, with respect to primary consideration 8.5 of Direction 99 – Expectations of the Australian Community, the Tribunal has attached substantial weight against revocation of the mandatory cancellation of the visa.
Limited weight is placed by the Tribunal in favour of revocation of the mandatory cancellation of the visa on the other consideration that is applicable to this application, namely para 9.2 of Direction 99 – Extent of impediments if removed.
When one applies the weight attaching to the primary considerations against revocation of the mandatory cancellation of the visa contained in paragraphs 8.1.1, 8.1.2, 8.2 and 8.5 of Direction 99 collectively, such weight is substantially greater than the weight that has been placed by the Tribunal in favour of revocation of the mandatory cancellation arising in respect of paragraphs 8.3, 8.4 and 9.2 of Direction 99.
Given that the weight attached to the applicable primary considerations against revocation is greater than that attached to the considerations in favour of revocation, the Tribunal is satisfied that there is not another reason to revoke the mandatory cancellation of the visa. Therefore, the correct and preferable decision is that the reviewable decision be affirmed.
DECISION
Accordingly, the reviewable decision is affirmed pursuant to s 43(1)(a) of the Administrative Appeals Tribunal Act 1975.

201. I certify that the preceding 200 (two hundred) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

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

Dates of hearing: 19 and 20 February 2024

Applicant:

Advocate for the Respondent:

Self-represented

Mr Maximilian Plitsch

Solicitors for the Respondent: Australian Government Solicitor