Minister for Immigration and Multicultural Affairs - [2024] ARTA 518

2445401 (Migration) [2024] ARTA 518 (18 December 2024)
DECISION AND
REASONS FOR DECISION
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2445401
Tribunal:Senior Member M Ison
Place:Melbourne
Date:18 December 2024
Decision:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 18 December 2024 at 2:37pm
CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – first cancellation notification defective – second notification while applicant in immigration detention – risk to health, safety or good order of community or segment of it – criminal offending, including offences against partner and final intervention order, now expired – discretion to cancel visa – rehabilitation courses, reduced alcohol and drug use and no further offending – work history and partner and young children’s economic dependency – open and honest evidence from partner – hardship, family unity and best interests of children – one child’s developmental disorders and care needs – length of residence and support network – character references – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 116(1)(e)(i), 127(3), 359A
CASES
Djokovic v MICMSMA (2022) 289 FCR 21
MICMSMA v Parata [2021] FCAFC 46
Tien v MIMA (1998) 89 FCR 80
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 October 2019 to cancel the applicant’s Subclass 444 (Special Category) visa under s 116 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is [applicant name] who is a [Age]-year-old New Zealand national who first arrived in Australia on his own as a [Age]-year-old to look for work [in] September 2013. [Applicant name] is referred to as the applicant in these reasons for decision.
The applicant departed Australia for four months in January to May 2014 travelling to [Country] for his [birthday] and returning to New Zealand for a week.
In October 2016 the applicant met [Ms A] who is a [Age]-year-old New Zealand national. [Ms A] was born in Australia to New Zealand citizen parents but thought she may hold dual Australian and New Zealand citizenship.
[Ms A] told the Tribunal she thought her children may also hold dual Australian and New Zealand citizenship.
The applicant and [Ms A] departed Australia [in] October 2017 and stayed in New Zealand for 11 days, returning to Australia [in] November 2017. Neither has departed Australia since.
[Ms A]’s Australian government movement records state when she last entered Australia [in] November 2017 she was granted a Special Category Subclass 444 visa at that time. The Tribunal is satisfied [Ms A] is a New Zealand citizen.
The applicant and [Ms A] told the Tribunal their relationship became exclusive on or around February 2017. Since then, the applicant and [Ms A] have had three children together:
·[Master B] born in [Year];
·[Miss C] born in [Year]; and
·[Master D] born in [Year].
[Ms A] also has a child, [Master E], aged [Age], when [Ms A] was in a relationship with [Master E]’s father. [Master E] lives predominantly with [Ms A] and the applicant.
The primary decision
The applicant provided the Tribunal with a copy of the primary decision.
The delegate cancelled the visa under s 116(1)(e)(i) of the Act which provides:
Section 116 Power to cancel
(1)       Subject to subsections (2) and (3)[1], the Minister may cancel a visa if he or she is satisfied that:
…
(e)      the presence of its holder in Australia is or may be, or would or might be, a risk to:
(i) the health, safety or good order of the Australian community or a segment of the Australian community; or
(ii)      the health or safety of an individual or individuals… . (emphasis in original)
[1] These subsections are not relevant for present purposes.
The delegate cancelled the visa under s 116(1)(e)(i) on the basis that the applicant’s criminal offending in Victoria meant the applicant’s presence in Australia is or may be a risk to the health, safety or good order of the Australian community or a segment of the Australian community.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Tribunal hearing
The applicant appeared before the Tribunal on 17 December 2024 to give evidence and present arguments in person. The Tribunal also received oral evidence from [Ms A] who also appeared in person.
Procedural matters in this review
The Department served a Notice of Intention to Consider Cancellation of a visa (NOICC) on the applicant on 6 September 2019 and that NOICC was returned to the Department marked return to sender.
As noted above, the applicant’s visa was cancelled on 29 October 2019 by letter sent to the same address as the NOICC.
The letter from the Department to the applicant, also dated 29 October 2019, notifying the applicant of the delegate’s decision, contains what has come to be known as the Parata defect.
The Full Federal Court case of Parata [2021] FCAFC 46 was decided in March 2021 and established that where notification of cancellation of a visa mentions only that the cancellation decision could be reviewed and did not mention under which Part of the Migration Act those review rights arose, then such notices were defective and the time for the lodgment of applications for review with the Tribunal does not commence to run until valid notification is given. Parata also confirmed that the failure to give proper notice of the applicant’s review rights from the primary decision does not affect the validity of the primary decision: s 127(3) of the Act.
The Tribunal has checked the letter of notification dated 29 October 2019 that accompanied the Notice of Decision to cancel the applicant’s visa of the same date. The Tribunal is satisfied the letter notifying the applicant was defective because it stated “The decision to cancel your visa can be reviewed” only and fails to state whether the applicant’s review rights arose under Part 5 or Part 7 (as it then was) of the Act.
The applicant was detained by the Department and placed in the Melbourne Immigration Detention Centre on 12 November 2024 after he attended [Police Station 1] in relation to a motor vehicle accident he was involved in the day before.
The Department then renotified the applicant about the cancellation of his visa on 12 November 2024 and the applicant confirmed in writing that day that he had received the renotification.
The applicant applied to the Tribunal to review the decision to cancel his visa on 25 November 2024.
In the applicant’s circumstances the Tribunal accepts that it has jurisdiction to review the October 2019 cancellation of the applicant’s Special Purpose (Subclass 444) visa.
At the time of this decision, the applicant continues to be detained in the Melbourne Immigration Detention Centre.
Tribunal decision
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
CONSIDERATION OF CLAIMS AND EVIDENCE
Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(e)(i). The Migration Regulations 1994 (Cth) (the Regulations) may prescribe circumstances in which a visa is not to, or must, be cancelled: s 116(2) and (3). Further, the Regulations may prescribe matters to which the Minister must, must not, or may, have regard in determining whether a ground for cancellation is made out under s 116(1), (1AA), (1AB) or (1AC), and the weight to be given to such a matter: s 116(1A).
If satisfied that the ground for cancellation is made out, and any circumstances prescribed under s 116(2) or (3) are not applicable, the decision maker must proceed to consider whether the visa should be cancelled. In determining whether the visa should be cancelled, the decision-maker must have regard to all relevant circumstances, which may include matters prescribed under s 116(1A) and other matters of government policy.
Does the ground for cancellation exist?
A visa may be cancelled under s 116(1)(e)(i) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community. If a visa may be cancelled under s 116(1)(e), prescribed circumstances may also exist in which a visa is not to, or must, be cancelled: s 116(2) and (3). There are currently no prescribed circumstances that apply.
The words ‘may’ or ‘might’ do not contain different levels of possibility; they relate to different contexts: ‘may’ if the visa holder is in Australia; ‘might’ if he or she were to come into Australia in the future: Djokovic v MICMSMA (2022) 289 FCR 21 at [37]. The same can be said for the words ‘is’ and ‘would’.
The expression ‘good order of the Australian community’ is not defined in the Act. In Tien v MIMA (1998) 89 FCR 80, the Court held (at 94) that the term must be construed in the context in which it appears, that is juxtaposed to the words ‘the health, safety’ of the Australian community. That is, it contains a public order element and concerns activities which have an impact on public activities or which manifest themselves in a public way. It requires that there be an element of risk that the person’s presence in Australia might be disruptive to the proper administration or observance of the law or might create difficulties or public disruption in relation to the values, balance and equilibrium of Australian society.
The applicant does not accept that his presence in Australia is or may be a risk to the health, safety or good order of the Australian community or a segment of the Australian community. The applicant told the Tribunal that his criminal offending has lessened since he has become a father to his children and he has reduced his consumption of alcohol, the influence or effects of which he accepts has been a common feature of his criminal offending, to mainly drinking on weekends.
The Tribunal summonsed the applicant’s records held in Victoria Police’s Law Enforcement Access Program (LEAP). The Tribunal read to the applicant during the Tribunal hearing the material particulars of the information from Victoria Police’s response to the Tribunal’s summons. The Tribunal handed the applicant a copy of the Tribunal’s summary and also a copy of his LEAP records, in which Victoria Police had redacted the personal information of third parties. In sharing this information with the applicant, the Tribunal followed the procedure set out in s 359A of the Act. The Tribunal’s summary was as follows:
[In] March 2015 in the Magistrates’ Court of Victoria at [Location 1] you were found guilty of causing criminal damage and were fined $750 without conviction. That offence related to you graffitiing a traffic light pole and car wash on 16 August 2014 when you were aged [Age].
[In] November 2018 in the Magistrates’ Court of Victoria at [Location 1] you were convicted of intentionally destroying property, intentionally damaging property, unlawful assault and refusing to accompany police for an oral fluid test for which you received a two-year Community Correction Order and were required to undergo offending behaviour programs as directed. Those offences related to you punching, kicking and pushing [Ms A], smashing her phone, throwing food on her, throwing food and furniture around your house, smashing your television with your fists, punching holes in the wall of your house, verbally abusing and chasing [Ms A], piling up [Ms A]’s possessions including clothes, wallet and bags on the front lawn of your house and burning them causing the fire brigade to attend and spraying an abusive message about [Ms A] on an interior wall of your garage.
[In] August 2019 you were convicted in the County Court of Victoria at [Location 2] of armed robbery, theft and possession of cannabis. You were jailed for two months but had already been remanded in custody for 80 days and were fined $250 and a 20-month Community Correction Order was imposed including performing 100 hours of unpaid community work. That offending occurred on 26 January 2019 when you entered a supermarket and put 4 packets of batteries and 6 watches into your backpack and when a staff member approached you, you produced a hammer and said to the staff member “do you want to get your head smashed in” before leaving the store without paying. You also stole 2 watches from another store.
The following matters were not recorded in the Department’s decision to cancel your visa.
[In] December 2019 in the Magistrates’ Court of Victoria at [Location 1] you were convicted of breaching your Community Correction Order. I cannot tell from the police documents what that breach relates to.
[In] October 2021 in the Magistrates’ Court of Victoria at [Location 3] you were convicted of theft and fined $500. I also cannot tell from the police documents what that breach relates to.
There are details in the police documents that one of the theft convictions related to the stealing and selling of a pre-paid mobile phone, although the details are redacted from the police documents.
[In] May 2022 in the Magistrates’ Court of Victoria at [Location 1] you were convicted of breaching a Family Violence Final Intervention Order for which you were fined $400. The names of the people involved have been redacted but that offending related to you staying at [Ms A]’s place on 14 January 2022 to look after one or more of your children while [Ms A] attended a family funeral. When [Ms A] returned that evening you were drunk, an argument resulted, police attended and found you drunk.
The Tribunal explained both the relevance of this information to the applicant’s review and the consequences for the applicant’s review if the Tribunal relied on the information in the Victoria Police documents. The applicant indicated to the Tribunal at the relevant times that he understood the relevance of the information to his review and understood the consequences for his review if the Tribunal relied upon the information.
The Tribunal invited the applicant to comment on or respond to the information but offered the applicant additional time to consider the information, including discussing it with [Ms A], before commenting upon or responding to the information. The applicant requested additional time which the Tribunal granted, adjourning the Tribunal hearing for a short period.
The applicant told the Tribunal that his criminal offending has lessened substantially since the last criminal charges in 2022 and he believes if his visa is not cancelled, he will not offend again.
The applicant told the Tribunal that he thinks that his breach of the Community Corrections Order arose out of the family violence related convictions from November 2018. It remains unclear to the Tribunal what actions of the applicant caused him to be convicted for breaching the Community Corrections Order issued in 2018.
The applicant told the Tribunal that his October 2021 criminal conviction for theft arose because he found a pre-paid mobile phone with a broken screen near one of his work sites and he used the phone to make and receive calls rather than handing it to police as lost property.
The applicant told the Tribunal his May 2022 conviction for breaching a Family Violence Final Intervention Order arose because he was caring for his and [Ms A]’s then youngest two children but consumed a significant amount of alcohol and ended up in an argument with [Ms A]’s younger brother, [Master F], then aged 17, who was at the house while [Ms A] and her mother attended a family funeral, resulting in the police attending.
The Tribunal noted that the Victoria Police information stated that the applicant was affected by methylamphetamine known colloquially as ice when he committed the family violence offences against [Ms A] in 2018. The applicant denied ever having used ice and [Ms A] told the Tribunal the applicant did not use ice. The Tribunal accepts this evidence as it notes the applicant has not been found guilty or convicted of any ice use, possession or trafficking criminal offence.
The applicant has however, been convicted of possessing cannabis. The applicant acknowledged he had used cannabis in the past but had not used cannabis for five years. [Ms A] told the Tribunal the applicant has not used cannabis during the over eight years of their relationship. The Tribunal prefers the applicant’s evidence in this regard as Victoria Police found the applicant in possession of cannabis in January 2019, which is more consistent with the applicant’s recollection.
The applicant told the Tribunal that when he attended [Police Station 1] on 12 November 2024 in relation to the motor vehicle accident he was involved in the day before, the police told him he would be charged on charge and summons at a later date. The applicant told the Tribunal he has not received any charges or a summons from Victoria Police yet. As the applicant has a privilege against self-incrimination, once the Tribunal became aware that the applicant may be criminally charged in relation to the motor vehicle accident on 11 November 2024, the Tribunal refrained from asking the applicant any further details about that accident. As the applicant has not yet been charged with any criminal offences in relation to the 11 November 2024 motor vehicle accident, the Tribunal draws no adverse inferences and makes no adverse findings against the applicant in relation to that matter.
[Ms A] told the Tribunal there have been no further incidents of reported or unreported family violence perpetrated by the applicant since the incident that led to the 2018 convictions. [Ms A] and the applicant confirmed in their oral evidence that a Family Violence Final Intervention Order was made in 2018 naming the applicant as the respondent and [Ms A] and her eldest child as the protected persons. [Ms A] confirmed her son was not at the house when the incident occurred. [Ms A] and the applicant told the Tribunal the Order was made for five years but has now expired and has not been extended and no new Family Violence Intervention Order has been made.
The applicant told the Tribunal that the Family Violence Final Intervention Order was originally a full ‘no contact’ order but that after approximately three months the terms of the order were amended to allow the applicant to resume cohabitation with [Ms A] and then their eldest child, noting that their first child together was not born until late 2020.
[Ms A] told the Tribunal she does not fear experiencing further family violence from the applicant and that the applicant has completed Men’s Behavioural Change courses. The applicant told the Tribunal he also completed a Drug and Alcohol course.
The Tribunal was mindful when discussing these issues with [Ms A] that the applicant was and had to be present during her evidence, that [Ms A] is largely economically dependent on the applicant at present with four children, three of whom are under five years of age and that giving evidence that a perpetrator of family violence perceives is against their interests can be a risk to the safety of a woman who has experienced family violence.
Whilst keeping those considerations in mind, the Tribunal found [Ms A]’s evidence to be impressive. [Ms A]’s evidence was spontaneously given, was given without pause, effect or exaggeration and appeared to the Tribunal to be openly and honestly given rather than an attempt at delivering a narrative intended to achieve a preferred migration outcome.

The Tribunal finds that the presence of the applicant in Australia is or may be a risk to the health, safety or good order of the Australian community or a segment of the Australian community. The applicant has been convicted on two separate occasions of offences of personal violence one of which occurred in a very public place, on two further separate occasions of dishonesty offences, of the possession of a prohibited drug and of also of refusing to cooperate with the police. The applicant was found guilty of damaging public infrastructure and his family violence offending included an act that required the fire brigade to attend. The applicant’s criminal offending has led to six court appearances between 2015 and 2022 and in that sense is not isolated.
The continuation of the applicant’s offending and his failure to inform the Tribunal of any substantial and ongoing efforts to address one of the stressors that contributes to his offending, being the consumption of alcohol, causes the Tribunal great concern about the applicant’s ability to deliver on his commitment not to re-offend. The Tribunal recognises that there are now significant pro-social factors in the applicant’s life such as [Ms A]’s significant support and the applicant’s desire to be an active father and positive influence in the lives of his children, particularly the three young children aged under five. However, these pro social factors were also present when the applicant committed his last two criminal acts in 2021 and 2022.
The Tribunal accepts that the applicant’s criminal offending, at least in terms of the use of violence, has reduced in recent years given the offending involving violence dates back to 2018 and 2019. However, the Tribunal remains concerned that until and unless the applicant seeks and obtains further professional help – particularly in relation to his alcohol use – he will remain some, not a negligible, risk to the health, safety or good order of the Australian community or a segment of the Australian community.
This causes the Tribunal to find the applicant’s presence in Australia is or may be a risk to the health, safety or good order of the Australian community – being the public at large – because of the nature, location and impact on the public and public order of his criminal offending. His offending has caused members of the public to fear for their safety, has required the attendance of emergency services to ensure and restore public safety and order and the possession of drugs and use of violence in both private and public spheres in the Tribunal’s view undermines the health, safety and good order of the Australian community.
The applicant’s serious and sustained assault of [Ms A] in 2018 would, in the Tribunal’s view, also ground the cancellation of the applicant’s visa under the alternative ground in s 116(1)(e)(ii) of being a risk to the health and safety of an individual or individuals being [Ms A] and the children, despite [Ms A]’s evidence that she does not believe the applicant will perpetrate further family violence. In the circumstance of this review, the Tribunal does not need to make this finding.
For these reasons, the Tribunal is satisfied that the ground for cancellation in 116(1)(e)(i) exists. As that ground does not require mandatory cancellation under s 116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.
Consideration of discretion
There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedural Instruction titled ‘General visa cancellation powers’. The Tribunal has considered all of the applicant’s circumstances including the oral evidence of the applicant and [Ms A] and their written statements and the supporting statements of friends and colleagues. The Tribunal uses the headings from the Department’s Procedural Instruction for convenience only.
The purpose of the applicant’s travel to and stay in Australia, including whether the applicant has a compelling need to or remain in Australia
The applicant told the Tribunal that he arrived in Australia from New Zealand as a 17-year-old to pursue work opportunities and has been continuously employed in construction and more recently in warehousing since arriving, including working throughout the COVID-19 global pandemic.
The applicant told the Tribunal he is the [birth order] of [number] children, with his eldest sibling aged in their mid-[decade]’s. The applicant’s evidence is he lived on his own with his mother for three or four years when he was young and is not close to his siblings, speaking to them on average once per year save for one sister to whom he speaks three or four times a year. The applicant told the Tribunal his siblings all live in New Zealand but are spread out across New Zealand.
The applicant’s evidence is supported by his Australian government movement records which record that the applicant has only returned to New Zealand twice since first arriving in Australia in September 2013.
The Tribunal finds that the applicant’s purpose in travelling to Australia, to pursue work and a stable lifestyle, continues to subsist at the time of this decision. The Tribunal finds this aspect of this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this aspect some weight.
The applicant claims he has a compelling reason to remain in Australia: to raise and support his family being [Ms A] and their four children. Neither the applicant nor [Ms A] were certain about the citizenship status of their children, particularly given [Ms A]’s claim she may be a dual Australian and New Zealand citizen. The applicant provided birth certificates for the youngest three children, who were all born in Australia. The Tribunal notes that both the applicant and [Ms A] are in Australia as holders of Special Category (Subclass 444) visas which indicates to the Tribunal they are both New Zealand citizens only and their children are New Zealand citizens.
[Ms A] gave evidence that their second youngest child, [Age]-year-old [Master B], has been diagnosed with attention deficit hyperactivity disorder (ADHD) and also as having autism spectrum disorder. [Ms A] described in detail for the Tribunal [Master B]’s care needs and development delays, including that [Master B] receives National Disability Insurance Scheme (NDIS) funding to access specialist speech pathology, occupational therapy and psychological support services. The applicant provided the Tribunal with a letter from [Dr G], consultant paediatrician, dated 3 August 2023, in which [Dr G] states:
[Master B] has global developmental delay including severe expressive language delay, severe receptive language delay, severe impairment in social interaction and moderate fine motor delay. He has strong features of Autistic trait and possible intellectual disability.
I recommend intensive speech therapy, intensive occupational therapy and ABA therapy.
This letter will support for NDIS funding for therapies.
[Ms A] told the Tribunal that NDIS funding was approved for [Master B] in October 2023, is for two years and has not been reviewed yet. [Ms A] explained to the Tribunal the specific challenges she faces as the main care provider for [Master B], who requires constant supervision, has a tendency to seek to ‘escape’ the house with no road or traffic sense and has “tantrums” that can be frequent, last for significant periods of time and involve kicking and punching [Ms A] or [Master B]’s siblings. [Ms A] also explained to the Tribunal the role the applicant plays in providing care for [Master B] and supporting [Ms A], particularly in de-escalating [Master B]’s “tantrums”.
The Tribunal accepts the evidence in relation to [Master B].
The Tribunal finds that the applicant has a compelling reason to remain in Australia to be a father to his and [Ms A]’s children and to support [Ms A] particularly in parenting [Master B]. This aspect of this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this aspect great weight.
Overall, the Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration significant weight.
The extent of the applicant’s compliance with their visa conditions
The applicant’s Subclass 444 visas did not have any conditions attached from Schedule 8 of the Regulations.
The Tribunal finds that this consideration is neutral and neither weighs against nor in support of the cancellation of the applicant’s visa.
The degree of hardship that cancellation may cause (financial, psychological, emotional or other hardship) to the applicant and any family members
The applicant’s evidence to the Tribunal is that he has made his life in Australia and wishes to remain here where he and [Ms A] wish to raise their children. The applicant told the Tribunal if his visa is cancelled and he has to return to New Zealand he will have to start over and re-establish his life, seeking to live with one of his siblings until he can afford to live on his own.
The applicant told the Tribunal he has found it very difficult being detained in immigration detention and being separated from [Ms A] and the children and this would also be the case if he had to depart Australia.
The applicant’s evidence is that [Ms A] and the children would not depart Australia to move to New Zealand to live with him if his visa was cancelled and he would not want them to because both the applicant and [Ms A] are of the view their children will have greater life opportunities in Australia and [Master B]’s specific care needs will be better supported in Australia with NDIS funding compared to New Zealand.
The applicant told the Tribunal he fears that [Ms A] and the children may have to give up the place where they currently live and are renting and is not sure what alternate accommodation they could organise.
The applicant told the Tribunal that [Ms A] most recently worked in paid employment up until three months before their youngest child, [Master D] was born in [Year]. [Ms A] told the Tribunal that it would be very difficult for her to return to work at present given she would potentially need to place three children in childcare and the costs of doing so would use most of any income she could earn. [Ms A] told the Tribunal that she receives AUD130 per fortnight from the biological father of her eldest child in an agreement they reached together that has been registered with the Child Support Agency.
[Ms A] told the Tribunal she lived in New Zealand in 2016 and last visited there in 2017 with the applicant. [Ms A]’s evidence is that her family – being her parents and four younger brothers – live together in [Suburb], the same suburb of Melbourne where [Ms A] and the applicant (prior to his detention) and their children also live.
[Ms A] told the Tribunal her parents are assisting her with financial support at present and have and do provide great support for her with the children, particularly at dinner and bath times and providing respite for [Ms A] with [Master B], who enjoys spending time with his grandparents. [Ms A]’s evidence is her parents remain supportive of her relationship with the applicant, treat the applicant like a son and would be greatly upset if the applicant’s visa was cancelled and he had to leave Australia.
[Ms A] told the Tribunal she has some aunts, uncles and cousins in New Zealand but her support networks, particularly through her nearby family, are in Australia.
The Tribunal accepts the applicant’s and [Ms A]’s evidence in these regards. The Tribunal finds that cancellation of the applicant’s visa would cause both the applicant and [Ms A] great emotional hardship in being separated from each other and the applicant being separated from their children and would also cause them both significant financial hardship and social hardship.
The Tribunal does not have any mental health reports in relation to the applicant, [Ms A] or any of their children. The Tribunal is unable to make any findings in relation to what psychological hardship could occur if the applicant’s visa is cancelled.
The applicant and particularly [Ms A] spoke at length about the impact the applicant’s detention has had on the children. [Ms A] described how difficult it has been parenting the four children without the applicant and the role the applicant normally plays in their daily life and routines, particularly but not only with [Master B]. [Ms A] described how upset and unsettled the older children are after each visit they have made to the detention centre and the changes in their behaviours since they have been separated from the applicant, who wishes to be, and who [Ms A] says is, a positive male role model and father for the children.
The Tribunal accepts this evidence and finds the cancellation of the applicant’s visa would cause the three older children great emotional hardship, which in time would extend to their youngest presently infant child. The Tribunal finds this hardship will be exacerbated in [Master B]’s circumstances for whom having both parents actively involved in his specialist support and general care is likely to produce the most positive developmental gains.
The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and in the applicant’s specific circumstances the Tribunal gives this consideration great weight.
The circumstances in which the ground for cancellation arose. Were there any extenuating circumstances beyond the applicant’s control that led to the ground for cancellation existing? As a general rule, a visa should not be cancelled if the circumstances in which the ground for cancellation arose were beyond the applicant’s control.
The applicant does not claim that there were any extenuating circumstances beyond his control in his criminal offending that led to the ground for cancellation existing.
It is not evident to the Tribunal, when considering all of the evidence before it, that there were any extenuating circumstances beyond the applicant’s control in his criminal offending that led to the ground for cancellation existing.
The Tribunal finds that this consideration weighs in support of the cancellation of the applicant’s visa and the Tribunal gives this consideration great weight.
The past and present behaviour of the applicant towards the Department (including whether they have been truthful and cooperative)
The applicant did not respond to the NOICC or otherwise participate in the cancellation process because he did not receive the NOICC.
The applicant told the Tribunal the address the NOICC, the Notice of Decision and the Decision Record were sent to was the address of his close friend who he lived with after being released from prison in 2019. The applicant told the Tribunal he lived with his close friend until the conditions on the Family Violence Final Intervention Order were amended to allow the applicant to return to living with [Ms A].
The applicant has an ongoing obligation to keep the Department informed of his address. His failure to do so does not amount to the applicant being dishonest or uncooperative with the Department, although it does put the Department to additional work particularly when it comes to serving notices on a visa holder. It is surprising to the Tribunal, given the documents from the Department were posted by registered mail, that the applicant did not have a mail forwarding arrangement in place or simply an arrangement with his close friend to keep and forward his mail.
The Tribunal finds that in the applicant’s circumstances this consideration is neutral and neither weighs against nor in support of the cancellation of the applicant’s visa.
Whether there are persons in Australia whose visas would, or may, be cancelled under s.140 of the Act
The evidence before the Tribunal, which it accepts, is that if the applicant’s visa was cancelled there would be no other persons whose visas may be cancelled as a consequence.
The Tribunal finds that this consideration is neutral and neither weighs against nor in support of the cancellation of the applicant’s visa.
Whether there are mandatory legal consequences to a cancellation decision such as whether cancellation would result in the applicant becoming an unlawful non-citizen and liable to detention and removal or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the applicant from making a valid visa application without the Minister’s intervention
The usual mandatory legal consequences of the cancellation of a visa are that the applicant becomes an unlawful non-citizen, may be detained and deported from Australia, will be prevented from applying for some temporary visas while they remain in Australia and will be restricted from returning to Australia for a period of time, currently three years.
The consequences of becoming an unlawful non-citizen and being detained in immigration detention have already been visited upon the applicant who has been detained in immigration detention since 12 November 2024.
Whether the applicant will be deported from Australia is a separate decision to the decision to cancel his visa, but the exclusion period on returning to Australia if the applicant departs Australia will apply.
The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and in the applicant’s circumstances of already having been detained in immigration detention, the Tribunal gives this consideration considerable weight.
Whether Australia has obligations under relevant international agreements including non-refoulement obligations, family unity obligations and the best interests of any children in Australia as a primary consideration, that would be breached as a result of the visa cancellation
Australia has obligations created by signing and ratifying international agreements including the Refugees Convention and the Refugees Protocol, the Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment, the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC).
The obligations those agreements create on Australia relevant to the potential cancellation of the applicant’s visa include, in broad terms:
·To ensure someone who is found to be a refugee is not sent back to a country where their life or freedom would be threatened or to somewhere where there are substantial grounds for believing that person would be in danger of being subject to torture. This is known as to not refouler someone;
·To make decisions with regard to the best interests of any children as a primary consideration; and
·To preserve the integrity of the family unit unless separation is necessary to protect a child from violence, abuse or neglect and to protect the family unit from arbitrary or unlawful interference.
A person is considered a child under the CRC if they are below the age of 18 years at the time of this decision. The applicant has four children below the age of 18 years at the time of this decision. Acting in the best interests of children is a primary (but not conclusive) consideration for the Tribunal in this review.
Protection claims
The applicant does not claim that he cannot return to New Zealand. The Tribunal finds that the cancellation of the applicant’s visa would not breach Australia’s non-refoulement obligations under international agreements.
Best interests of the applicant’s children
The Tribunal discussed with both the applicant and [Ms A] what is in the best interests of their four children in Australia, at length. The Tribunal accepts that normally it is best for children if they have access to both parents and are raised by both parents in a nurturing environment where they are loved and able to realise the full expression of themselves. Both the applicant and [Ms A] told the Tribunal they believe it is in the best interests of their children if the applicant’s visa is not cancelled.

The concern for the Tribunal in this review is that the applicant was convicted in 2018 of perpetrating horrendous and sustained physical violence against [Ms A]. The Tribunal accepts that when children see or hear family violence being perpetrated, even from a very young age, it causes them great and often long-term harm that can be very difficult to treat and overcome.
The Tribunal explained its concerns to both the applicant and [Ms A] in the context that those concerns could cause the Tribunal to find that it is not in the best interests of the applicant’s and [Ms A]’s children that the applicant returns to live with them.
The applicant gave evidence that he has not and will not repeat his violent behaviour toward [Ms A], he has a very different perspective and outlook on life since the births of his own children, he wishes to be a present and active father in his children’s lives, to support them in everything they do and to be a caring and supportive partner for [Ms A], their relationship has strengthened since his 2018 offending, he has reduced his alcohol consumption and the applicant does not wish to miss further time with his children given his present experience of being detained in immigration detention.

100. [Ms A] told the Tribunal she fully supports the applicant, both she and their children need the applicant in their lives, it will be a particularly significant set back to [Master B]’s developmental progress if the applicant has to depart Australia and the applicant’s intentions in relation to his role as a father are reflected in him changing from working in construction to warehousing so he could work afternoon shifts and assist [Ms A] with the children in the morning. [Ms A] explained to the Tribunal how both she and the applicant have modified their behaviour to prevent arguments escalating.
101. It is evident to the Tribunal that [Ms A] was economically dependent on the applicant until the time of his detention. However, the Tribunal formed the view that [Ms A]’s powerful support for the applicant was not just the product of this dependence, but also the product of her genuinely held belief that the applicant will not perpetrate further family violence against her and her genuinely held belief that the applicant has an important and positive role to play in their overall family and in each of their children’s lives. [Ms A]’s evidence has added significance in this review given the extensive care and support needs that [Master B] has and will continue to have into the future.
102. The Tribunal accepts that it is over six years since the applicant perpetrated family violence against [Ms A] and since then they have had three children together. The Tribunal also accepts the evidence of the applicant and [Ms A] that the Family Violence Final Intervention Order issued in 2018 has lapsed and there is presently no intervention order in place naming the applicant as the respondent and [Ms A] and any or all of the children as the protected persons. There is also no evidence before the Tribunal of the Victorian Child Protection Service having any historical or recent involvement with the family.
103. In these circumstances, the Tribunal finds that it is the best interests of the four children of the applicant and [Ms A] that the applicant’s visa is not cancelled, and he is able to remain in Australia to be an active and present father for the children and partner for [Ms A]. As the best interests of the children is a primary consideration for the Tribunal, the Tribunal gives this aspect of this consideration great weight.
Australia’s family unity obligations
104. [Ms A] told the Tribunal it would not be an easy or straightforward manner for her and the children to relocate to New Zealand to be with the applicant if he had to depart Australia. It is evident to the Tribunal that [Ms A] and the children receive considerable support and care from [Ms A]’s family who live in the same suburb in Melbourne. The Tribunal accepts that it would not be possible for the family to replicate this level of support and care in New Zealand, even allowing for the presence of the applicant’s family there and [Ms A]’s relatives there.
105. The Tribunal does not find that the cancellation of the applicant’s visa will cause Australia to breach its family unity obligations under, for example, articles 17 and 23 of the ICCPR. This is because the applicant’s detention in immigration detention is neither arbitrary nor unlawful.
106. The Tribunal finds that this aspect of this consideration is neutral and neither weighs against nor in support of the cancellation of the applicant’s visa.
Conclusion on Australia’s obligations under international agreements
107. As the Tribunal has found that the cancellation of the applicant’s visa would not be in the best interests of his children in Australia the Tribunal finds that overall this consideration weighs against the cancellation of the applicant’s and the Tribunal gives this consideration great weight.
If the applicant holds a permanent visa, whether the applicant has strong family, business or other ties in Australia
108. The applicant’s Subclass 444 visa is a temporary visa.
109. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.
Any other relevant matter
110. The applicant provided the following written character references to the Tribunal:
·[Mr H] dated 15 November 2024, who is a long-term friend of the applicant’s. The applicant told the Tribunal it was with the [H] family that the applicant stayed when the Family Violence Final Intervention Order initially prevented the applicant from returning home and from whom the applicant borrowed money to pay the application fee to the Tribunal. The applicant told the Tribunal he is closer to the [H] family than his own family in New Zealand;
·[Mr I] dated 13 November 2024, a friend and former work colleague of the applicant who the applicant helped secure employment after [Mr I] had been made redundant; and
·[Mr J] dated 22 November 2024, the applicant’s employer prior to being detained who wrote that his company would happily re-employ the applicant if he is released from immigration detention.

111. [Ms A] also told the Tribunal the applicant continues to enjoy the support and to be loved by her parents.
112. Collectively, the references and [Ms A]’s evidence in this regard show there is some extended family and community support for the applicant in Australia, including the prospect of future employment. These are important pro social factors that can contribute to the applicant avoiding further criminal offending and in particular the use of violence.
113. The Tribunal finds that this consideration weighs against the cancellation of the applicant’s visa and the Tribunal gives this consideration some weight.
Conclusion

114. Considering the circumstances as a whole, the Tribunal concludes that the visa should not be cancelled because the considerations that weigh against the cancellation of the applicant’s visa outweigh those considerations that weigh in support of the cancellation of the applicant’s visa.
115. The considerations that weigh against the cancellation of the applicant’s visa include:
·the applicant’s purpose in travelling to and staying in Australia continues and the applicant has a compelling reason to remain in Australia (significant weight);
·cancellation would cause the applicant, [Ms A] and their children great emotional hardship and significant financial and social hardship (great weight);
·the mandatory legal consequences of the cancellation of the applicant’s visa have already resulted in the applicant being detained in immigration detention since 12 November 2024 (considerable weight);
·the best interests of the applicant’s four children in Australia weigh against the cancellation of his visa (great weight); and
·there is some extended family and community support for the applicant in Australia, including the prospect of future employment (some weight).

DECISION
116. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.
Date of hearing: 17 December 2024
Representative for the Applicant: Nil