Montsho and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 1053

Montsho and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1053 (15 May 2024)
Division:GENERAL DIVISION
File Number(s): 2024/1068
Re:Tebogo Montsho
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Mr S. Webb, Member
Date:15 May 2024
Place:Canberra

The 31 March 2024 decision under s 501CA(4) of the Migration Act 1994 not to revoke the decision to cancel Mr Montsho’s Bridging Visa A is affirmed.
………………[sgd]………………..
Mr S. Webb, Member
Catchwords
MIGRATION – mandatory visa cancellation – review of decision not to revoke visa cancellation – failure to pass character test – Ministerial Direction No. 99 – primary and other relevant considerations – protection of Australian community – very serious conduct – risk of harm – strength, nature and duration of ties to Australia – best interests of minor child – expectations of the Australian community – legal consequences of decision – effect on partner visa application – impediments if removed – impact on victims – balance of considerations – no other reason established for revocation – threshold for exercise of power to revoke not surpassed – decision affirmed
Legislation
Crimes (Administration of Sentence) Act 1999 (NSW) s 81
Crimes (Sentencing Procedure) Act 1999 (NSW) s 7
Migration Act 1958, ss 189, 198, 499, 500, 501, 501CA, 501F
Migration Regulations 1994, Schedule 2, Schedule 5
Cases
Ali v Minister for Home Affairs [2020] FCAFC 109
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125
Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
Falzon v Minister for Immigration and Border Protection [2018] HCA 2
FBYR v Minister for Home Affairs [2019] FCAFC 185
Guclukol v Minister for Home Affairs [2020] FCAFC 148
JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 168
Lum and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 792
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 63
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Nathanson v Minister for Home Affairs [2022] HCA 26
Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 197
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2018] FCAFC 116
WVJB v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 320
XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
Secondary Materials
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
Mr S. Webb, Member
15 May 2024

Tebogo Montsho, who likes to be known as ‘Prestige’, is a citizen of the Republic of Botswana. He was granted a bridging visa in the context of a partner visa application. As will appear, Mr Montsho engaged in criminal conduct. Consequent to being sentenced to a 12-month term of imprisonment, his visa was cancelled.
Mr Montsho sought revocation of this decision and made representations to the Minister. A delegate of the Minister decided not to revoke the cancellation decision. Mr Montsho applied to the Tribunal for review of this decision.
Facts
The following facts are established by the documentary and oral evidence before the Tribunal.
Mr Montsho was born in 1992 in the Republic of Botswana.
He spent his childhood and young adulthood in Botswana where he resided with his mother, PT. He has one sibling, a sister. He has no knowledge of or relationship with his father.[1] His mother remarried, but Mr Montsho does not have a close relationship with his step-father in Botswana. Mr Montsho has extended family members, including several cousins, in Botswana. He does not have a close relationship and he is not in contact with his extended family members.
[1] G30, folio 271.
On 30 December 2015, at the age of 23, Mr Montsho first arrived in Australia as a dependent of his mother on a Domestic Worker (Diplomatic) visa (subclass 995). He resided in Canberra with his mother and sister, and he engaged in a course of study at the Canberra Institute of Technology.[2]
[2] Exhibit 3, Statutory Declaration of Mr Montsho, 14 April 2024, page 1.
At some point in 2016, Mr Montsho met Ms H. Mr Montsho’s evidence is that he met Ms H online and they commenced a relationship. [3]
[3] G14, folio 82.
On 12 December 2016, Mr Montsho departed Australia for Botswana “for the new year holidays”.[4]
[4] Exhibit 3, Statutory Declaration of Mr Montsho, 14 April 2024, page 1.
He returned to Australia on 3 February 2017.
After completing the course of study, Mr Montsho again departed for Botswana on 24 June 2017. He states this was due to his visa expiring and his inability to afford international student fees.[5] He continued the relationship with Ms H while he was in Botswana, using electronic communication technology.
[5] Ibid.
In November 2017, Ms H gave birth to a son conceived with Mr Montsho.[6]
[6] G31, folio 274.
Mr Montsho returned to Australia on 9 June 2018 under a Visitor Visa, “to visit my Mum and my partner”.[7] He resided with his mother in Canberra and visited Ms H and his son “regularly”.[8]
[7] Exhibit 3, Statutory Declaration of Mr Montsho, 14 April 2024, page 1.
[8] Ibid, page 3.
On 4 September 2018, he departed for Botswana once more.
Mr Montsho returned to Australia on 27 May 2019 under a Visitor Visa.[9] He has remained in Australia to the present.
[9] G32, folio 275.
On 22 June 2019, Mr Montsho applied for grant of a Class UK Subclass 820 Partner visa, sponsored by Ms H (substantive visa application). He was granted a Class WA Subclass 010 Bridging A visa (bridging visa) which came into effect on expiration of his Visitor Visa on 27 August 2019.[10]
[10] Exhibit 2, S44, page 155.
On 27 June 2019, Mr Montsho and Ms H registered a civil partnership in the Australian Capital Territory.[11]
[11] G30, folio 272.
Following his return to Australia in May 2019, he and Ms H resided with her mother, KM, in Sydney. This was “uncomfortable” and Mr Montsho moved into rental accommodation.[12] On Ms H’s evidence, when the child was approximately 2 years old (in or about November 2019) she and child moved to Narooma and Mr Montsho remained in Sydney, where he worked. His evidence is their “relationship was on and off”.[13]
[12] Exhibit 3, Statutory Declaration of Mr Montsho, 14 April 2024, page 3.
[13] Ibid.
Mr Montsho’s employment was affected during the Covid-19 pandemic and related public health orders early in 2020. He received $750 per week from the government to offset his loss of income. His consumption of alcohol increased. Mr Montsho gave evidence of initially binge-drinking and using cannabis on weekends, followed by increasingly frequent drinking and intoxication during the week.
As will appear, Mr Montsho committed a number of criminal offences in the period from 24 January 2021 to 15 October 2022. His offences were committed when he was intoxicated with alcohol. In related court proceedings, he admitted to the offences and entered guilty pleas. His first offence was against Ms H. He was subject to a 2-year Apprehended Violence Order (Domestic) (AVOD) issued for Ms H’s protection. His most recent offence was against two 15-year-old female children for which he was sentenced to a 12-month term of imprisonment with a non-parole period of 9 months, commencing on 18 October 2022.
On 31 March 2023, Mr Montsho’s bridging visa was cancelled under s 501(3A) of the Migration Act 1958 (Act) (mandatory visa cancellation decision). Consequently, by operation of s 501F(2) of the Act, as Mr Montsho’s substantive visa application had not been decided, it is taken to have been refused.[14]
[14] Exhibit 2, S45, page 157.
On 31 March 2023, Mr Montsho signed a request for revocation of the mandatory visa cancellation decision.[15] He made representations to the Minister for Immigration, Citizenship and Multicultural Affairs (Minister) in response to the invitation to do so[16] and provided supporting documents.[17] On 4 July 2023, the Minister’s Department acknowledged receipt of Mr Montsho’s representations.[18]
[15] G13.
[16] G11, G12 and G14.
[17] See, for example, G15-G31.
[18] G37.
On 22 July 2023, Mr Montsho was released from prison and taken into immigration detention at the Villawood Immigration Detention Centre as he is an unlawful non-citizen in Australia[19]. Mr Montsho remains in immigration detention.
[19] Exhibit 2, S43, page 148.
On 21 February 2024, a delegate of the Minister decided not to revoke the mandatory visa cancellation decision under s 501CA(4) of the Act (non-revocation decision).[20] The delegate was not satisfied Mr Montsho passed the character test defined in s 501(6) of the Act or that there was another reason to revoke the mandatory visa cancellation decision.[21]
[20] G4.
[21] G5.
On 22 February 2024, Mr Montsho was given notice of the non-revocation decision,[22] whereupon he applied to the Tribunal for review of the decision.[23]
[22] G3.
[23] G2.
Criminal offences, convictions and penalties
Mr Montsho has the following criminal offences, convictions and penalties:

Date of offence Date of conviction Description of offence Sentences and Orders

(a) 24 January 2021 11 February 2021 Attempt stalk/intimidate intend fear of harm (domestic) $500 fine; 2-year Apprehended Violence Order (Domestic).[24]

(b) 13 December 2021 11 May 2022 Sexually touch another person without consent; Common assault (2 counts)
$1,000 fine;

18-month term of imprisonment to be served in the community under Intensive Correction Order;

200 hours community service.[25]

(c) 18 January 2022 11 May 2022 Stalk/intimidate intend fear physical etc. harm (personal)
$1000 fine;

2-year Apprehended Personal Violence Order.[26]

(d) 19 June 2022 3 August 2022
Attempt stalk/intimidate intend fear of harm (personal);

Common assault;

Continue intoxicated behaviour after move on direction
2-month term of imprisonment.[27]

(e) 15 October 2022 30 November 2022
Common assault;

Stalk/intimidate intend fear physical etc. harm (2 counts)
12-month term of imprisonment.[28]
[24] Ibid, S12 and S13.
[25] Ibid, S22, S23, S24, S25, S26 and S27.
[26] Ibid, S37 and S38.
[27] Ibid,S1, S4, S15 and S6.
[28] Ibid, S8, S9, S10, S11 and G8.
Issues

The Tribunal review is in respect of the non-revocation decision under s 501CA(4) of the Act:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Each party was given opportunity to make submissions addressing the proper construction of s 501CA(4) and whether exercise of the power to revoke is a matter of discretion once it is enlivened by satisfaction of either of the preconditions set out in s 501CA(4)(b)(i) or (ii). The parties were in agreement the Tribunal should proceed on the understanding the power to revoke hinges on satisfaction of either of the preconditions in s 501CA(4)((b)(i) or (ii) and exercise of the power is triggered by a positive satisfaction finding, without further or residual discretion. In other words, if the Tribunal is satisfied either of the preconditions are met, exercise of the power to revoke is mandated.
Even though the matter is vexed as there are divergent Federal Court authorities on this point[29], I will proceed in the manner agreed. Albeit not squarely addressing the issue, in Nathanson v Minister for Home Affairs[30] and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton[31], the High Court adopted the construction of the statutory scheme set out in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane[32]:
The relevant statutory scheme mandated by s 501CA of the Act comprises: the giving of relevant information to a person whose visa has been cancelled; inviting that person to make representations about why that cancellation decision should be revoked; the receipt of representations by the Minister made in accordance with that invitation; and, thereafter, the formation of a state of satisfaction, or not, by the Minister that the cancellation decision should be revoked. That scheme necessarily requires the Minister to consider and understand the representations received. What is "another reason" is a matter for the Minister. Under this scheme, Parliament has not, in any way, mandated or prescribed the reasons which might justify revocation, or not, of a cancellation decision in a given case.[33]
[29] For example, see discussion in Ali v Minister for Home Affairs [2020] FCAFC 109 at [39]-[49]; Guclukol v Minister for Home Affairs [2020] FCAFC 148 at [16]; Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125 at [3]-[4], [7], [51] and [100] (noting application for special leave to appeal was refused by the High Court); Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125 at [3] and [57]-[62]; Falzon v Minister for Immigration and Border Protection [2018] HCA 2, per Gageler and Gordon JJ at [74]; Viane v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2018] FCAFC 116, per Colvin J at [73]-[74], Reeves J agreeing].
[30] [2022] HCA 26 at [71].
[31] [2023] HCA 17 at [52] and [100]-[101].
[32] [2021] HCA 41.
[33] Ibid at [13].
Approaching the matter in this way, where the Tribunal forms a positive state of satisfaction in respect of s 501CA(4)(b)(i) or (ii), revocation of the cancellation decision is mandated. In other words, in this review the Tribunal must determine if it is satisfied Mr Montsho passes the character test or there is another reason to revoke the mandatory visa cancellation decision and, if so, it should revoke the mandatory visa cancellation decision.
The Tribunal must comply with directions issued by the Minister under s 499(1) of the Act,[34] presently Direction no. 99: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction). The Direction provides no more than guidance on the exercise of discretionary powers by the administrative decision-maker.[35]
[34] JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 168 at [19].
[35] Ibid.
I note the Objectives in paragraph 5.1 of the Direction and the following Applicable Principles in paragraph 5.2:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
The Direction sets out the following instructions and guidance:
6. Making a decision
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
7. Taking the relevant considerations into account
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
8. Primary considerations
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
…
9. Other considerations
(1)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.
Character test
The ‘character test’ threshold under s 501CA(4)(b)(i) is to be viewed through the lens of the power in s 501(3A) which was exercised in the mandatory visa cancellation decision.
(3A) The Minister 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.

As can be seen, the mandatory cancellation power is essentially preconditioned by the decision-maker being satisfied the person fails the character test on grounds they have a substantial criminal record within the terms of s 501(7)(a), (b) or (c), or they have been convicted of sexually based offences involving a child.
The sole ground raised in the delegate’s decision and in these proceedings is set out in s 501(6)(a):
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); or
…
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
…
Mr Montsho concedes he does not pass the character test on this ground.
This concession is consistent with evidence before the Tribunal Mr Montsho was sentenced to a 12-month term of imprisonment for the criminal offences he committed on 15 October 2022. The sentence has an aggregate character, relating to three offences. Reading s 501(6)(a) and s 501(7)(c) with s 5AB of the Act, the sentence means Mr Montsho has a substantial criminal record and he does not pass the character test for the purposes of s 501CA(4)(b)(i) of the Act.
I note for completeness, on 11 May 2022, Mr Montsho was sentenced to an 18-month term of imprisonment to be served by way of intensive correction order in the community in accordance with the Crimes (Administration of Sentence) Act 1999 (NSW) (NSW Administration Act).[36] Under s 81 of the NSW Administration Act, the conditions of an intensive correction order are imposed by the sentencing court under Part 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (NSW Procedure Act). Having regard to the defined meaning of ‘intensive correction order’ in s 7 of the NSW Procedure Act, it is clear where an intensive correction order is made, it applies to service of a sentence of imprisonment. Whether Mr Montsho’s sentence to an 18-month term of imprisonment to be served in the community under an intensive correction order is within the terms of s 501(7)(c) of the Act turns on the definition of ‘imprisonment’ in s 501(12):
imprisonment includes any form of punitive detention in a facility or institution.
[36] Exhibit 2, S26, page 73.
Having regard to the conclusions of the Full Court in Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[37] the inclusive nature of the definition of ‘imprisonment’ leaves open a question whether service of a term of imprisonment in the community is within its terms.
[37] [2022] FCAFC 197 at [46]-[49].
It is not necessary to express a view about this question in this review as the mandatory visa cancellation power in s 501(3A) is essentially preconditioned by the person serving a sentence of imprisonment on a full-time basis in a custodial institution (s 501(3A)(b)). Mr Montsho fails to pass the character test in s 501(3A)(a)(i) and s 501CA(4)(b) on the grounds he has a ‘substantial criminal record’ due to the 12-month term of imprisonment in a custodial institution to which he was sentenced on 15 October 2022.
Another reason
As Mr Montsho does not pass the character test under s 501CA(4)(b)(i) of the Act, the power to revoke the mandatory visa cancellation decision hinges on satisfaction there is ‘another reason’ to do so under s 501CA(b)(ii).
Submissions
Mr Montsho asserts there is ‘another reason’ to revoke the mandatory visa cancellation decision. He argues the serious conduct he engaged in is out of character and it was contributed to by his abuse of alcohol. He alleges the risk of him re-engaging in such conduct is very low, he does not accept the risk assessments reported in pre-sentence documents. In his submission, these assessments were made before his incarceration and subsequent detention, during which he has abstained from alcohol and he has participated in rehabilitative activities, including attending courses and obtaining psychological treatment. He explained he intends to remain abstinent from alcohol and he is resolutely committed to that objective: he has made a promise to himself about this. He acknowledges there may be temptations in social settings where others consume alcohol should he be released into the Australian community, but he will not succumb to temptation and jeopardise his immigration status again.
Mr Montsho alleges he has gained insight into his previous alcohol abuse and now is clear-eyed about the problems this has caused, including the adverse effects on the victims of his offending and on his immediate family: Ms H and their son. He repeatedly expressed regret and remorse. He contends he has insight into the factors which led to him abusing alcohol, including loneliness (being separated from his family), financial stresses, housing and co-tenancy difficulties he experienced in Sydney, reduced employment and government payments during the Covid-19 pandemic, as well as drinking in social settings and with associates. On this latter point, Mr Montsho maintained, in the future, should he be released into the Australian community, he would not again drink alcohol and he would not resume his previous behaviour with associates.
Mr Montsho asserts he has not been given but he deserves a second chance. He contends he has powerful incentives to maintain abstinence from alcohol and to ensure he does not repeat his previous conduct and offences. He explained he now understands his previous conduct has placed in jeopardy his future in Australia as a father to his son and as a partner to Ms H. He submits, in the circumstances which will pertain should the mandatory visa cancellation decision be revoked, continuation of his Visa would be subject to further character considerations by the Minister when determining his Partner visa application: if the Partner visa is not granted his Visa would lapse shortly thereafter.
Mr Montsho asserts over the 8-year period since he first arrived in Australia and commenced a relationship with Ms H, and during the 5 years he has resided in Australia in particular, he has developed strong and enduring family ties, and he has contributed to the community by working, paying taxes and donating to charities. He alleges the immediate members of his family, primarily Ms H and his son (who are Australian citizens), are adversely affected by the mandatory visa cancellation decision and this will continue unless it is revoked.
Despite separation from his family members during the periods of his incarceration and detention, and during previous enforced separation under the terms of the AVOD imposed following his family violence offence in 2021, Mr Montsho asserts he has maintained a close, strong and continuing relationship with Ms H and their son. He submits Ms H and the child will suffer adverse effects, financially, practically, psychologically and emotionally, should he be forced to return to Botswana. Mr Montsho submits forced removal to Botswana will diminish his ability to provide practical, emotional and financial support to Ms H and his son, as his employment prospects and earning capacity (and wages) in Botswana would be substantially lower than in Australia. This eventuality, he argues, would have an adverse impact on Ms H and his son who are Australian citizens. Ms H, he asserts, would be denied practical support as a single working mother caring for his son, including difficulties collecting him from school for example.
Mr Montsho is concerned if he is forcibly returned to Botswana, he may never see his son in person again and his parental role would be limited by unreliable electronic communications. His son, he alleges, would be harmed emotionally and psychologically by permanent separation from his father: he would be distinguished from his peers and he would be denied the opportunity to share experiences with and to learn from his father. The harm caused to his son would be exacerbated, he argues, by the difficulty maintaining frequent and meaningful audio-visual contact with Ms H and his son from Botswana. Mr Montsho explained digital telecommunications and internet connectivity are unreliable in Botswana. Mr Montsho argues enforced separation from his son is not in his son’s best interests, and this should outweigh all other considerations.
In Mr Montsho’s submission, the legal consequences of not revoking the mandatory visa cancellation decision weigh in favour of revoking the mandatory visa cancellation decision. The submission is raised on two legs.
Firstly, Mr Montsho is concerned the cancellation of his Visa leaves him with the status of an unlawful non-citizen in Australia, facing ongoing immigration detention pending removal to Botswana if the mandatory visa cancellation decision is not revoked. This eventuality, so the argument goes, will result in permanent physical separation from his son, who is an Australian citizen. He asserts if he is forcibly returned to Botswana, he may never see his son again as Ms H has a fear of flying and she could not afford the costs of visiting him in Botswana, and he would be prevented from returning to Australia as he would have no real prospect of being granted a further visa.
Secondly, he asserts the automatic refusal of the Partner visa application he lodged with Ms H is an unforeseen and unfair consequence. He contends a decision on his Partner visa application has been pending for 4 years, without any result, and the deemed refusal by operation of law consequent to the mandatory visa cancellation decision, without any consideration of the merits of the application or the interests of Ms H and their son, and without prior notice or forewarning, is disproportionate and unfair. Conversely, he contends, if the mandatory visa cancellation decision is revoked, his Partner visa application will remain to be determined and the Minister would have the opportunity to make fresh findings in respect of relevant character considerations.
Despite initially raising the prospect of a protection claim, Mr Montsho expressly declined making any submissions in respect of protection and non-refoulement issues when given an opportunity to do so.
Mr Monthso alleges he will face serious impediments if he is forced to return to Botswana. These include adverse emotional and psychological effects consequent to separation from his family, without access to the same level or quality of treatment which is available in Australia. Mr Montsho is concerned he does not have a support network in Botswana and he is not in contact with his extended family members. This, he alleges, may lead to him becoming homeless and without practical means to sustain himself in Botswana. He asserts there is a lower degree of public safety and personal security in Botswana than in Australia and this would expose him to physical and psychological risks of harm.
It is Mr Montsho’s submission the Tribunal should be satisfied there is ‘another reason’ to revoke the mandatory visa cancellation decision. He contends, when relevant considerations are weighed, those in favour of revoking the mandatory visa cancellation decision (and setting aside the non-revocation decision), particularly the best interests of his son, outweigh those against doing so.
The Minister does not agree. In the Minister’s submission, considerations relating to protection of the Australian community and Australian community expectations are reinforced by the seriousness of Mr Montsho’s conduct, particularly in respect of his offences against women and female children, including family violence, and the risk of harm should he engage in similar conduct again. The Minister reasons these considerations out-weigh all other considerations, including the adverse effects on members of his immediate family in Australia and the best interests of his son.
The Minister asserts the very serious nature of Mr Montsho’s conduct is reinforced by a trend of increasingly serious offending and his disregard for Australian laws during the relatively short period in which he has been in Australia, since May 2019. In the Minister’s submission, there is a medium to high level of risk Mr Montsho would engage in further similar very serious offending conduct if his visa is reinstated and he returns to the community. The Minister alleges further similar conduct would result in physical and psychological harm to members of the Australian community, particularly women, and the risk thus posed exceeds the threshold of tolerance within the Australian community.
The Minister accepts Ms H is taken to be a member of Mr Montsho’s family for the purposes of the definition of family violence in s 4(1) of the Direction and notes ‘the Government’s serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia’. The Minister submits the offence Mr Montsho committed on 24 January 2021 caused Ms H to be fearful and it is within the meaning of ‘family violence’. The abusive and intimidatory elements of the offence are abhorrent, the Minister argues, noting what the Tribunal said in Lum and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[38]:
139. The Tribunal has consistently found that family violence is abhorrent. It has been described as ‘a corrosive blight on the Australian community’, ‘plainly abhorrent’ and an offence which ‘warps and destroys the healthy bonds that should exist between partners and within families.’ As the Tribunal observed in XFKR [XFKR and Minister for Immigration and Border Protection [2017] AATA 2385 at [45]], family violence ‘normalises ... socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.’
[38] [2022] AATA 792 at [139].
The Minister asserts, contrary to community expectations and the privilege of a non-citizen remaining in Australia, Mr Montsho’s criminal offending and serious conduct has exposed members of the Australian community, and women in particular, to the risk and threat of harm, as well as aggressive sexualised intimidatory and violent conduct. The Minister contends Mr Montsho has not been law-abiding and he has not respected important Australian institutions: he has consumed a significant amount of law enforcement and court resources at the expense of the Australian community in the short period since he moved to Australia in May 2019. The Minister submits the Australian community would not expect Mr Montsho to have his visa reinstated.
In the Minister’s submission, Mr Montsho’s parental role in respect of his son has been adversely affected by his previous offending and other serious conduct. The Minister notes Mr Montsho has been more absent than present, having resided with Ms H and his son for only several months in 2019. In the Minister’s submission, Mr Montsho’s past behaviour and the risk he will relapse and offend again informs the likelihood of him playing a positive parental role and offering a positive role model for his son. Noting Ms H’s evidence she is willing to give Mr Montsho one last chance, the Minister argues exposing the child to the risk of further relapses or offences by Mr Montsho is not in the child’s best interests.
The Minister accepts the legal consequences of the mandatory visa cancellation decision include the automatic refusal of Mr Montsho’s Partner visa application and Mr Montsho becoming an unlawful non-citizen in Australia, subject to immigration detention pending removal from Australia. The Minister also accepts Mr Montsho might face some impediments on returning to Botswana.
Nevertheless, it is the Minister’s submission the primary considerations against revoking the mandatory visa cancellation decision outweigh those in favour of doing so. It is for this reason the Minister asserts the Tribunal should not be satisfied there is another reason to do so and, absent satisfaction, the power to revoke is not enlivened.
Protection of the Australian community
The primary consideration of protection of the Australian community from criminal or other serious conduct requires consideration of the nature and seriousness of Mr Montsho’s conduct and the risk of harm to the Australian community should he commit further offences or engage in other serious conduct. Section 8.1 of the Direction states:
… 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.
When considering these matters, the Government’s commitment to protect the community from harm resulting from criminal conduct or other serious conduct by non-citizens should be kept in mind.
Nature and seriousness of conduct
Decision-makers must have regard to the matters set out in s 8.1.1:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii.crimes of a violent nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
iv.where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

Mr Montsho accepts his criminal record should be viewed as very serious conduct as he committed a sexual crime and an act of family violence.
Consideration of the seriousness of Mr Montsho’s conduct is not confined to his criminal offending. It extends to ‘other conduct’ within the meaning of ‘serious conduct’ as defined in s 4(2) of the Direction:
In this Direction, serious conduct includes behaviour or conduct of concern that does not constitute any criminal offence.
Examples: public act that could incite hatred towards a group of people who have a particular characteristic, such as race; intimidatory behaviour or behaviour that represents a danger to the Australian community; involvement in activities indicating contempt or disregard for the law or human rights, or a history of serious breaches of immigration law.
It is clear enough alcohol was an operative factor in Mr Montsho’s criminal offences and he has a pattern of offending and aggressive sexualised antisocial behaviour directed towards women in particular when he is intoxicated.[39] This behaviour includes harassing women in public places (as occurred 15 October 2022[40]) and making intimidatory sexualised comments to women (as occurred on 13 December 2021[41] and 19 June 2022[42]), and engaging in public drunkenness contrary to and in breach of bail conditions and intensive correction orders[43]. It demonstrates Mr Montsho has a disregard for law and a disrespect for legal institutions when he is intoxicated. The sexualised and intimidatory nature of his behaviour towards women adds weight to the seriousness of this conduct.
[39] Exhibit 2, S15, page 34.
[40] Ibid, S8.
[41] Ibid, S27.
[42] Ibid, S1.
[43] Ibid, S18 and S35, for example.
The evidence establishes Mr Montsho becomes impulsive and disinhibited when intoxicated. In a pre-sentence report on 28 February 2022, Kellie Blake (a Parklea Correctional Centre psychologist), reported Mr Montsho’s commission of offences while under the influence of alcohol “may be suggestive of impulsive behaviours and poor problem-solving skills, which appear to be exacerbated when intoxicated”.[44] In all likelihood, this is correct.
[44] Ibid, S39, page 109.
Mr Montsho’s first offence was committed on 24 January 2021, little more than 20 months after he moved to Australia in May 2019. There is no dispute it involved ‘family violence’ against a ‘member of the person’s family’, as defined in s 4(1) of the Direction:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a) an assault; or
b) a sexual assault or other sexually abusive behaviour; or
c) stalking; or
d) repeated derogatory taunts; or
e) intentionally damaging or destroying property; or
f) intentionally causing death or injury to an animal; or
g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
i) preventing the family member from making or keeping connections with his or her family, friends or culture; or j) unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty
member of the person’s family, for the purposes of the definition of the definition of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person.
Mr Montsho accepted the Police recitation of the facts of this offence, including:
About 10.27pm on the 24^th January 2021, the victim was at her residential address, when she received a text message from the accused…The message read in the following: - Suck a dick (accused) – Dead beat (victim) Fuck off or I’ll contact police for harassment – Lol Lil Bitchu… (accused) Luke I give a fuc U don’t me (emojis of smiling faces with tears coming out x2) go ahead rat (4x emojis of rats) I swear imma get an Islander girl to cum best u up Watch Watch, smack the shit our of you C u in hell bitch – Bahahaha you’re a loser !!! Go get a life
… The victim stated she feared for her physical safety, fearing she would be assaulted…[45]
[45] Ibid, S13, page 25.
There is no dispute this is ‘an act of family violence’ which viewed as ‘very serious conduct’ for the purposes of s 8.1.1(1)(a)(iii) of the Direction.
Mr Montsho committed 3 offences on 13 December 2021. He was convicted of sexual touching without consent, which is a ‘sexual crime’. This is viewed as ‘very serious conduct’ for the purposes of s 8.1.1(1)(a)(i) of the Direction. He was also convicted of 2 counts of common assault against the female victim and a female ambulance officer. Regardless of the sentences imposed, these assault offences are considered to be ‘very serious conduct’ for the purposes of s 8.1.1(1)(a)(ii) of the Direction.
The agreed Police facts[46] (which were put to and accepted by Mr Monsho) establish two sexual elements in this conduct: physical contact and abusive language. The two sexual elements are significant because the evidence establishes a pattern of Mr Montsho engaging in similar sexualised behaviour towards women when intoxicated.
[46] Ibid, S27.
In the offence on 13 December 2021, the first sexual element is sexual touching without consent, as set out in the agreed facts:
At this stage the accused was standing about 30 centimetres away from [the victim]. [The victim] was not looking directly at the accused, however, she felt a hand on her vagina. There was nobody else standing near at the time except the accused.
[The victim] felt the accused push, with force, his hand onto her vagina and then drag his finger past the victim’s labia majora and onto her labia minora.
[The victim] immediately said, “Don’t touch me!” and removed the accused’s hand. [The victim] then asked one of the passerbys to call the police.[47]
[47] Ibid, pages 78-79.
The second sexual element is the sexualised language Mr Montsho used when conversing with the female victim, who was attempting to assist him from a busy road. On the agreed facts, Mr Montsho was in a highly intoxicated state and fell to the ground in Harris Street, Sydney, a busy multi-lane road. The victim parked her car across a traffic lane to create a safe buffer while assisting him to exit the road. Mr Montsho stated “You’re so beautiful, you’re so good looking, I want to touch you”[48] whereupon he touched the victim’s right hip with his hand. He then stated “I want to fuck, I want tight pussy. If you let me touch you I’ll let you alone”. The victim attempted to distract Mr Montsho by referring to her boyfriend who was also assisting. The second element involves aggressive sexualised intimidatory behaviour towards a woman.
[48] Ibid, page 78.
In addition to the degree of physical violence involved, the sexual elements of Mr Montsho’s molestation of the victim increase the weight which should be given.
Mr Montsho committed 2 offences on 19 June 2022. The Police facts (which Mr Monsho accepted) establish that he engaged in aggressive sexualised intimidatory and violent behaviour towards a 22-year old female liquor store attendant:
About 6pm, the Accused has entered the Eastwood Liquor store and stated to the Victim “I want a beer man”. The Victim has refused to sell alcohol to the Accused due to their high level of intoxication and strong smell of alcohol. The accused has then stated the following to the Victim “I want to fuck you.” “I want you to suck my dick.” “You’re just racist. I want to fuck you.” And “Oh, you tight Asian bitches with your tight pussy.” These comments have caused the Victim to feel very afraid and uncomfortable.
…
Following these comments, the Accused has then reached forward with his hand and grabbed the victim’s scarf, pulling it towards himself. The Victim has then grabbed the scarf and pulled it out of his hand. The victim has then felt scared and has pressed the emergency button for approximately 5 seconds. The accused has continued to reach forward with their hand to touch the Victim’s right hand and stomach area.[49]
[49] Ibid, S1, page 3.
This offence is very serious conduct for the purposes of s 8.1.1.(1)(a)(ii) of the Direction. The 2 sexual elements of Mr Montsho’s molestation can readily be seen: reaching to touch the victim’s hand and stomach area, and aggressive sexualised language and intimidatory behaviour.
Mr Montsho’s pattern of aggressive sexualised conduct towards women is reinforced by his offending conduct on 15 October 2022. On this occasion, Mr Montsho was convicted of offences against two 15-year old female children. Mr Montsho accepted the Police recitation of facts, which include:
The Accused approached the entrance to the Landmark Hotel, a Licensed Premises adjacent to children’s amusement rides occupying West Parade as part of the Granny Smith Festival. Security at the Hotel observed the Accused approach the hotel carrying bottles of alcohol. The Accused sat outside the hotel within view of security who observed him appear to be harassing a woman nearby. Security told the Accused to move away to which he complied.
About 8.45pm, the Accused walked to the Eastwood Railway Station bus interchange on West Parade, Eastwood. The Accused approached and interacted with [three 15-year old females] who were seated at a bus shelter… The Accused started talking to the group saying “How’s you’re night going?” The Accused asked the Victims for their names which they gave and continued talking to them. The Accused was initially jovial towards the Victims. The Accused was facing the Victims when he leaned in towards the group and took hold of [one of the girl’s] hand which he extended towards himself and attempted to kiss. [The girl] immediately retracted her hand. At this time [one of the girls] stood up from the bus shelter seat and walked a short distance away. The Accused sat next to [a victim] in the seat vacated… The accused leant into [the victim] and put his arms and hands around her to restrict her movement.
… The Accused told the Victims he had been to Gaol and how he had previously shot someone. At one point the Accused asked the Victims their age which they nervously laughed off. [Two victims] remained seated frightened by the behaviour of the Accused and feeling uncomfortable but hesitant to try moving away from him...[50]
[50] Ibid, S8, pages 16-17.
Mr Montsho’s offending conduct was interrupted by police who were called to assist by the third 15-year old girl.
Mr Montsho was charged with one common assault offence and 2 stalk/intimidate offences. He denied engaging in violent or sexual conduct when interacting with these children but he accepted the police recitation of the facts and entered guilty pleas.
In sentencing Mr Montsho, Magistrate Goodwin stated:
…the offences are serious. These were young girls. They were sitting at a bus stop. You had no right whatsoever to molest them in the way that you did, under the influence of alcohol, smoking, making inappropriate comments to them, and obviously making them fear. I take into account – you don’t have a lengthy record but it’s certainly increasing and increasing all the time. There’s a strong element of a problem with alcohol…[51]
[51] G8, folio 60.
Considering the Magistrate’s comments, it is quite clear she considered a term of imprisonment to be a last resort when sentencing Mr Montsho.
Mr Montsho’s offence against the two 15-year-old girls is viewed as very serious conduct for the purposes of s 8.1.1.(1)(a)(ii) of the Direction. While his offences are not sexual crimes, his molestation of the victims involved both sexual elements which are apparent in the pattern of his previous offending conduct. He took hold of and attempted to kiss one victim’s hand and he placed his hands and arms around her to restrict her movement. He engaged in aggressive intimidatory language and behaviour with impliedly sexual undertones.
On the agreed Police facts, prior to interacting with the female children, Mr Montsho reportedly harassed a woman outside the Landmark Hotel. While the details of this conduct are not in evidence, the conduct is consistent with the pattern of Mr Montsho’s aggressive antisocial behaviour towards women when he is intoxicated.
On 18 January 2022, Mr Montsho assaulted a male co-tenant with whom he shared a house. Mr Montsho cavilled with some of the alleged facts, but he entered a guilty plea and agreed the assault included actual and threatened violence. In the result, a 2-year Apprehended Personal Violence Order (APVO) was issued against him for the protection of the victim.[52] This conduct might not be considered to be serious conduct for the purposes of s 8.1.1(1)(b) of the Direction but the offence and the sentence imposed (a fine of $1,000 and the 2 year APVO) are relevant considerations under s 8.1.1(1)(c), (d) and (e).
[52] Ibid, S37 and S38.
The sentences imposed are a measure of the seriousness and repetitive pattern of Mr Montsho’s criminal offending. So much is clear from Magistrate Goodwin’s observations.
Mr Montsho was convicted of 11 offences arising from 4 incidents in the period from 24 January 2021 to 15 October 2022.
Mr Montsho’s repeated offending and the pattern of aggressive, sexualised, intimidatory and violent nature of his conduct is a trend of increasing concern, the concern is increased by repetition and recidivism in breach of court orders. Mr Monthso was released into the community on bail and under an intensive corrections order. The conditions attaching to his release into the community included abstaining from alcohol and committing no further offences. Nonetheless, Mr Montsho proceeded to consume alcohol and to commit further offences. The extent of his disregard is demonstrated by:
(a)his repeated breaching of bail conditions;
(b)being warned and granted bail on 7 May 2022, but breaching the conditions of bail within 24 hours; and
(c)reporting to police under bail conditions on 22 January 2022, but doing so when he was intoxicated within 4 days of the grant of bail. [53]
[53] Exhibit 2, S28 (page 83), S29, S30, S31, S32, S33, S34, S35 (page 99), S36.
This increases the cumulative effect of Mr Montsho’s offending on victims in the Australian community, particularly women, as well as in respect of the drain on police and court resources.
I accept Mr Montsho was not formally warned his visa might be cancelled should he offend again. Under s 8.1.1(1)(g) of the Direction, the absence of forewarning about the consequences of further offending on his migration status does not weigh in Mr Montsho’s favour, however.
Mr Montsho disclosed he was convicted of a ‘possession of fake currency’ offence in Botswana and he was sentenced to an 8-month term of imprisonment (partly suspended).[54] Without evidence of the particular facts of this disclosed offence, it is difficult to know if it would amount to an offence in Australia, although that is possible, even likely.
[54] G7, folio 47.
Mr Montsho has not committed further offences during the period of his incarceration since October 2022 and immigration detention from 23July 2023. The available records suggest he was granted parole at the first opportunity and he has an unblemished record in prison and in immigration detention. He has repeatedly expressed regret and remorse for his previous offences and conduct, and he has engaged in rehabilitative programs and some psychological treatment during the period he has been removed from the community.
While these matters weigh in his favour, under the principle in s 5.2(4) there is a low tolerance of crimes or other serious conduct committed by a non-citizen who has been participating in and contributing to the Australian community for only a short period. Mr Montsho had been participating in the Australian community for only 20 months or so after moving to Australia in May 2019 when he first engaged in very serious conduct - all of his criminal offences and very serious conduct occurred within the following 3.5 years. I note Mr Montsho previously participated in the Australian community before June 2018, including as a student and in employment, for varying periods from December 2015. There is no evidence he was convicted of any crimes or offences during these periods.
Considering these matters separately and cumulatively, I am satisfied the seriousness of Mr Montsho’s conduct weighs squarely against revocation.
Risk to the Australian community
In considering the need to protect the Australian community from harm, regard should be had 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.
In assessing the risk posed, it is necessary to have regard to the matters set out in s 8.1.2 cumulatively:
a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c)    where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
In the circumstances of this case, the consideration in s 8.1.2(2)(c) is not relevant.
In consideration of the harm referred to in s 8.1.2(2)(a), Mr Montsho committed a sexual offence, as well as offences involving violence against women and female children, and family violence. He committed an intimidatory violent offence against a co-tenant. He repeatedly breached conditions on which he was released into the community. He has not been law abiding and he has caused and threatened harm to individuals, particularly women.
I am satisfied serious physical and psychological harm would likely be caused to individual members of the Australian community, especially women and female children, should Mr Montsho commit further offences of these kinds. Furthermore, similar offending would undermine public safety and contribute to a broader sense of insecurity and fear of harm in the community at large, but most particularly for women and female children. The seriousness of the harm which would be caused should he re-offend reduces the tolerance of risk.
Mortimer J (as she then was) discussed the approach to assessing risk in a comparable context in Tanielu v Minister for Immigration and Border Protection[55]:
102. It is well established that, where the harm which might be caused by future conduct is particularly serious, a lesser likelihood of the conduct occurring may be required for the risk to be identified at a level requiring a particular decision to be made. It is also well established that the likelihood of a person engaging in conduct in the future is affected by both static and dynamic factors: that is, factors which can be assessed objectively against statistical models to predict the risk category a person falls into, and dynamic factors personal to an individual which may moderate or exacerbate the risk the person otherwise could be said to pose. Those factors might include family support, alcohol and drug abuse patterns, employment and the like.
[55] [2014] FCA 673.

Her Honour provided further guidance in Assistant Minister for Immigration and Border Protection v Splendido[56]:
The nature and circumstances of past offending are integral to any assessment of the risk, or likelihood, also of relevance are a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated. It is these matters, and not the mere specification of a criminal record, which provide the probative basis for assessment about the nature and extent of any risk of further offending.
[56] [2019] FCAFC 132, per Mortimer J at [78].
In order to properly take account of relevant matters, separately and cumulatively, a detailed exposition and analysis is desirable even though this adds substantially to the length of these reasons.
Mr Montsho asserts the risk of him re-offending is low as he does not intend to consume alcohol again, and he has gained insight into the role and adverse effects of alcohol in his previous conduct. He alleges the risk of him re-offending was assessed by Ms Blake on the papers, without any clinical assessment, and this was done on 28 February 2022, well prior to his imprisonment and subsequent detention. Mr Montsho submits he has gained insights during the period he has been removed from the Australian community and he has attended relevant courses, obtained counselling treatment and he has abstained from consuming alcohol and marijuana.
Mr Montsho asserts, if he is given a second chance, the spectre of losing his visa and being removed again from his family would be a powerful incentive to remain abstinent from alcohol and cannabis, and to ensure he does not commit any further offences. Mr Montsho notes the Minister would have another opportunity to consider character concerns when deciding if his Partner visa application can be granted and, this, too, would provide a further incentive. These considerations, Mr Montsho argues, reduce the risk of him relapsing into alcohol use and re-offending.
All this might be true, but there are several difficulties.
Mr Montsho has previously accepted the role of alcohol intoxication in his offending[57] and he undertook to abide by bail conditions he would not consume alcohol or offend again[58]. It was on this basis, on several occasions, Mr Montsho was conditionally released into the community on bail and under an intensive correction order. The emptiness of his undertaking is demonstrated by his resumption of alcohol use and re-offending. The evidence supporting this finding includes:
(a)On 11 March 2022, Mr Montsho was reported to have “conceded that he never thought his level of alcohol consumption was an issue until he committed the current offence” (on 13 December 2021) and “stated he is willing and able to undertake interventions related to his aggression, substance abuse, and sex offending behaviour”. [59]
(b)On 19 March 2022, Mr Montsho was assaulted and sustained a head injury. He was treated and discharged from the Westmead Hospital on 23 March 2022 with instructions, including “No alcohol consumption for at least 6 months”.[60] Mr Montsho did not follow this instruction.
(c)On 21 December 2021, Mr Montsho was granted bail on condition he was not to drink alcohol or take drugs unless prescribed by a doctor.[61] Within the period of 5 months, Mr Montsho proceeded to breach this bail condition on 4 occasions, including on 9 May 2022 when he was found to have breached his bail conditions within 24 hours of being given a warning on 7 May 2022.[62]
(d)Subsequently, on 11 May 2022, Mr Montsho was sentenced to an 18-month term of imprisonment to be served in the community under an intensive correction order.[63] Mr Montsho proceeded to breach this order on 19 June 2022, committing further offences when intoxicated.[64] He did so despite being reported to engage in online drug and alcohol groups administered by Odyssey House prior to 20 May 2022, of which it was stated “this engagement was a positive reinforcement of his need to remain abstinent from alcohol”.[65]
(e)On 29 July 2022, Mr Montsho was reported to attribute his offending behaviour to his state of intoxication: he “conceded that alcohol use would have contributed to his aggressive conduct” and he was “willing to engage with a local drug and alcohol counsellor in addition to maintaining contact with Odyssey House”.[66] On 31 August 2022, Mr Montsho was reported to have “initially minimised his issue with alcohol, though upon being challenged was able to acknowledge that his alcohol use is related to his index offences and re-offence” and he was “engaging with Odyssey House for treatment for his alcohol use and confirmed he is willing to return”.[67] This notwithstanding, on 15 October 2022, Mr Montsho proceeded to commit further offences when intoxicated.
(f)In a report dated 12 October 2022, Community Corrections recommended “the intensive corrections order is urgently revoked” “because Mr Montsho poses a high risk of sexual offending whilst consuming alcohol”.[68] Thomas Winn (a Community Corrections Team Leader) stated:
Mr Montsho’s alleged reoffence indicates a high risk to the community. The sexual nature of his offending and the concerns raised of the sexual element to the reoffence would indicate his risk cannot be mitigated in the community at this time.[69]
[57] Ibid, S19, for example.
[58] Ibid, S32, for example.
[59] Ibid, S19, page 51 and 52.
[60] G18, folio 122.
[61] Exhibit 2, S32, page 93.
[62] Ibid, S35, page 99.
[63] Ibid, S25.
[64] Ibid, S18.
[65] Ibid, S18, page 46.
[66] Ibid, S20, pages 56 and 57.
[67] Ibid, S17, page 42.
[68] Ibid, S16, page 38.
[69] Ibid, page 39.
On 6 July 2023, shortly before his release from prison, Community Corrections reported:
Mr Montsho has a pattern of offending while intoxicated and said he experienced withdrawals when he ceased drinking after his arrest. While in custody Mr Montsho has reflected on these points and is beginning to understand that his use of alcohol is problematic. He stated that he feels better without alcohol, and he intends not drinking when released. He identifies ceasing alcohol as his primary strategy for avoiding further offending.[70]
[70] Ibid, S15, page 34.
Mr Montsho’s reported intention and his primary strategy for avoiding further offending have not yet been tested in the community. Previous similar undertakings he made were tested and failed in the community.
I accept Mr Montsho’s circumstances have changed with enforced removal from the community and the change in his immigration status. No doubt, these changes add strength to his avowed resolve to abstain from alcohol and not re-offend. I accept his present resolve is genuine and he comprehends the link between his use of alcohol and his antisocial conduct and his commission of aggressive, sexualised, intimidatory and violent offences.
Nonetheless, however heartfelt this resolve might be in his present circumstances in detention, it is not possible to gauge with any certainty how he would cope with the stresses of life which will inevitably arise should he be released into the community. Mr Montsho behaved well while in prison and in detention and there are no records of misconduct or negative case notes in the materials before the Tribunal. There are records of Mr Montsho feeling safe in detention. Whether he will be able to maintain his equanimity and his avowed resolve when dealing with the different stresses and circumstances which might arise outside the institutional environment he has experienced since October 2022, when he is not feeling safe for example, is an open question. There is a risk the resolve he presently harbours might be transformed by the stresses and uncertainties of life in the community into an aspiration he is unable to meet.
Mr Montsho gave written and oral evidence he intends to obtain further psychological treatment and to continue with support programs if he is released into the community. Ms H confirmed their plan for Mr Montsho to reside with her and their son, as a family. In this context, she would provide Mr Montsho support to maintain his resolve to abstain from alcohol and further offending. Ms H explained she is willing to give Mr Montsho a last chance, but she would not tolerate a relapse. I accept with Ms H’s support and psychological treatment, supplemented by further rehabilitative programs, the risk of Mr Montsho relapsing and re-offending might be reduced.
Considering the change in Mr Montsho’s circumstances, there is a question about the validity of previous objective risk assessments and the weight these should be given.
In the 6 July 2023 report, Community Corrections stated that Mr Montsho’s risk of re-offending was “Tier 3 High because he was assessed as ‘above average risk’ using the STATIC-99”.[71] I understand the reference to ‘STATIC-99’ is a reference to the actuarial assessment tool ‘Static-99R’ applied by Ms Blake on 28 February 2022. It is not clear if a fresh assessment of risk was made using the Static-99R tool in the preparation of the 23 July 2023 report. Ms Blake’s February 2022 assessment was “limited by having no direct contact with Mr Montsho” and was based on available file information at the time. Mr Montsho’s circumstances have changed somewhat over the intervening period from February 2022, and they will change again if he is released into the community and the plan he has made to obtain further treatment and to reside with Ms H comes into effect. The extent to which Mr Montsho’s present and expected future circumstances bear upon the previously assessed risk of Mr Montsho re-offending must be considered.
[71] Exhibit 2, S15, page 34.
Ms Blake reported:
The Static-99R has moderate predictive accuracy in ranking offenders according to their relative risk for sexual recidivism and produces estimates of future risk based on a number of risk factors present in any one individual….
Mr Montsho’s total score on the Static-99R was 5… This places him in the Level Iva – Above Average Risk category.
The rates of sexual recidivism for sexual offenders within the Static-99R ‘routine’ normative samples who had the same score as Mr Montsho were between 13.8% and 16.6% over five years. Taking into account that about 7.4% of sexual offenders in the routine sample shared the same score as Mr Montsho, about 7.6% scored above Mr Montsho’s score, while roughly 85% score below Mr Montsho’s score. The rate of recidivism for individuals with a score of 5 is estimated to be about 2.7 times that of a ‘typical’ sex offender.
The use of Static-99R has limitations. The recidivism estimates and relative rankings provided by the Static-99R are based on groups of individuals and therefore these estimates/rankings will not necessarily directly reflect the recidivism risk of an individual offender. The Static-99R does not measure all relevant risk factors, and Mr Montsho’s recidivism risk might be higher or lower than that indicated by the Static-99R based on factors not included in this risk tool. Similarly, the Static-99R is not sensitive to the changes in an offender’s circumstances that may increase or decrease his actual risk of re-offending.[72]
[72] Ibid, S39, page 109.
On the available materials, I am unable to determine if further risk assessments were made using the Static-99R tool. That being so, it is possible Ms Blake’s assessment is reflected in subsequent risk assessments set out in Sentencing Assessment reports on:
(a)11 March 2022:
Mr Montsho has been assessed at a Low – Medium risk of re-offending according to the Level of Service Inventory – Revised (LSI-R).
Community Corrections has overridden the offender’s overall risk of re-offending to High due to his Static-99R score which deemed him an Above Average Risk of sexual re-offending.[73]
(b)29 July 2022:
Mr Montsho’s risk rating of T2/low-medium was overridden due to his previous sex offending and is not assessed at a T2/high risk of re-offending according to the Level of Service Inventory – Revised (LSI-R).[74]
(c)28 August 2022:
Mr Montsho has been assessed at a Low – Medium risk of re-offending according to the Level of Service Inventory – Revised (LSI-R).
Community Corrections has overridden the offender’s overall risk of re-offending to Tier 2 High because his Sex Offender Supervision Assessment was pending. Due to his return to custody, this has still not been completed and Mr Montsho will be required to participate in further assessment regarding his risk of re-offence if released from custody.[75]
(d)6 July 2023:
Mr Montsho has been assessed at a Low – Medium risk of re-offending according to the Level of Service Inventory – Revised (LSI-R).
Community Corrections has overridden the offender’s overall risk of re-offending to Tier 3 High because he was assessed as ‘above average risk’ of re-offending using the STATIC-99.[76]
[73] Ibid, S19, page 52.
[74] Ibid, S20, page 57.
[75] Ibid, S17, page 42.
[76] Ibid, S15, page 34.
No explanation has been provided for the increase in Mr Montsho’s risk assessment on 23 July 2023 from ‘Tier 2 – High’ to ‘Tier 3 – High’. It is possible a further assessment was undertaken as suggested in the 28 August 2022 report, but no such report has been produced to the Tribunal.
Ms Blake recommended development of a risk management plan for Mr Montsho and observed he might be suitable for a community-based sex-offender treatment program involving weekly counselling sessions over a 6 to 12- month period.[77] Mr Montsho has not yet undertaken a program of this kind.
[77] Ibid, S39, page 109.
Mr Montsho was first assessed for services provided by Odyssey House Community Programs (Odyssey House) on 4 March 2023.[78] He undertook 6 SMART Recovery groups between 7 March 2023 and 6 June 2023. Mr Montsho re-offended on 19 June 2022. He was re-assessed on 26 September 2022 and undertook 2 SMART Recovery groups on 10 and 17 October 2022. [79] Mr Montsho re-offended on 15 October 2022.
[78] Exhibit 3, page 8.
[79] Ibid.
Following his release from prison on 23 July 2023, Mr Montsho was again re-assessed for Odyssey House programs on 10 August 2023. It was recommended he should engage in the Reach for Recovery group. He undertook 26 groups between 21 August 2023 and 18 March 2024.[80] In the period from 21 August 2023 to 11 December 2023 Mr Montsho undertook group sessions addressing the following topics:
(a)Alcohol and Other Drugs (AOD) Recovery Stage 1 – 4 group sessions;
(b)AOD Recovery Stage 2 – 6 group sessions;
(c)Relapse Prevention - 6 group sessions.[81]
In an undated letter referring to these group sessions, Ross Fryer (an Odyssey House AOD Worker) reported:
[Mr Montsho] has participated well in all groups and is considered a valued member of the group he has participated in. [Mr Montsho] has also shown good insight into his issues.[82]
[80] Ibid; S43, pages 131, 133, 138-148 and 150-153 refer.
[81] Exhibit 3, page 8.
[82] G17, folio 121.
On 18 March 2024, Taylor Hammes (an Odyssey House Team Leader) reported Mr Montsho was “an active client” of Odyssey House at that time.[83]
[83] Exhibit 3, page 8.
As the oral evidence emerged during the hearing, it became clear Mr Montsho’s previous disclosures in respect of his use of alcohol and cannabis were not entirely accurate. In his oral evidence, he admitted to using cannabis, contrary to previous denials.[84] He also admitted to first drinking alcohol at the age of 17 and consuming cannabis and alcohol during the period of his relationship with Ms H after moving to Australia in May 2019. Ms H confirmed so much in her oral evidence. It is not clear if Mr Montsho provided a full and frank disclosure of his drug and alcohol use to Odyssey House. He did not do so when taken into immigration detention and when undergoing health assessments in detention. These matters feed into the risk assessment and the likelihood Mr Montsho will relapse into further use of alcohol and cannabis.
[84] Exhibit 2, S41, page 114 and S43, pages 137, 147, 148 and 149, for example.
Mr Montsho engaged in mental health assessments in immigration detention. On 5 January 2024, Mr Montsho attended a Drug and Alcohol Health Assessment with David Martin, a D&A Nurse, who reported Mr Montsho:
ETOH - drank socially until COVID isolation when drinking became problematic ultimately leading to incarceration, last intake over a year ago
Denied any other illicit drug use[85]
[85] Exhibit 2, S43, page 137.
On 14 February 2024, 28 February 2024 and 13 March 2024, he consulted Timothy Wardliner, a psychologist.[86] On 13 March 2024, Mr Wardliner noted:
Risk Assessment:
Risk of ;self-harm: States he has no SI or thoughts of SH.
Risk of harm to others: Denies risk to others, nil acute risks identified.
…
Protective factors: Future focused. Supportive partner and child. Participating in physical activity and seeks social contact with others when needed. Supportive friend network and sister in Canberra. Missing his family a great deal.
Impression: Wants to focus on depressive symptoms. Appears motivated and is developing a good understanding of the purpose of deliberate skill interventions for MH. Prestige is doing well to avoid detention fatigue and is actively progressing into positive action, but this will likely have episodes of decompensation as is natural. He appears to be self-reflective enough to use decompensation as self-motivation to continue with positive action and personal development.[87]
[86] Ibid, pages 132, 134 and 135.
[87] Ibid, page 132.
Mr Wardliner’s evidence that Mr Montsho will likely have episodes of decompensation reinforces the risk of him consuming alcohol again during such an episode or, as he has repeatedly done in the past, in response to financial and other stresses, or social pressures.
All risk assessments are coloured by uncertainty. In this case, an optimistic assessment is raised on the resolve and the aspirations of Mr Montsho and Ms H. Mr Montsho asserts he will not associate with people who use alcohol or cannabis, as he did in the past. This stands against Mr Wardliner’s note that Mr Montsho’s “Supportive friend network” is a protective factor in the risk assessment. Mr Wardliner refers to Mr Montsho’s sister as a protective factor, but Mr Montsho’s evidence is that he is not close to his sister. I note she has not given any evidence in this case.
Ms H’s evidence that she will not tolerate any further relapse is likely to strengthen Mr Montsho’s resolve. Nevertheless, Mr Montsho has spent only several months residing with Ms H and their son as a family in the latter part of 2019. How he will cope with the pressures of family life in a domestic setting with Ms H and the child has not been tested, and the resulting uncertainty feeds into the risk assessment.
The objective risk assessments, albeit possibly in need of up-dating, are more cautious. I am not persuaded the objective assessments are presently invalid to the extent they should be discounted. The record and pattern of Mr Montsho’s criminal offending and other serious conduct, and the harms which are likely to result to individuals in the Australian community should he re-offend again, countenance a measured approach. Mr Wardliner’s evidence that Mr Montsho will likely have episodes of decompensation sharpens this point in circumstances where Mr Montsho’s avowed resolve to abstain from alcohol has not been tested in the community. Presently, it is not possible to gauge with any certainty how Mr Montsho would cope with the stresses of life which will inevitably arise should his visa be reinstated and he be released into the community.
Mr Montsho expressions of regret and remorse for his offences, and evidence of his insight into the effect of his offending on victims and into “his issues”[88] feed into the risk assessment. Mr Montsho’s insight into his offending and related ‘issues’ relates to his use of alcohol and the effect on victims. His evidence on these matters does not persuade me he has insight into the sexual elements in his pattern of offences and very serious conduct. While alcohol no doubt played an important part, there is little evidence Mr Montsho understands why he engages in aggressive sexualised intimidatory behaviour against women and girls when he is drunk. While it might be expected related matters would be touched on in relevant short courses Mr Montsho completed, without evidence of such understanding or insight, there are serious questions about the extent of his rehabilitation. I note Mr Montsho has not yet undergone the intensity and duration of treatment recommended by Ms Blake in respect of his sexual offending.
[88] G17, folio 121.

It was in this context, Mr Montsho’s family violence offence occurred on 24 January 2021, whereupon he was subject to a 2-year AVOD for Ms H’s protection. Mr Montsho explained his subsequent pattern of behaviour, consuming alcohol, committing criminal offences and engaging in antisocial conduct, in reference to circumstances which arose including housing difficulties and alleged homelessness, living separate from his family and depression. I note in the commission of the offences Mr Montsho committed while he was intoxicated on 15 October 2022, he engaged in an abusive telephone conversation with a person, probably Ms H.
In all likelihood, the frequency and the extent of Mr Montsho’s use of alcohol and cannabis, and his related intoxication, over the period from 2020 to October 2022 would have reduced his meaningful contact with Ms H and with his son during this period. I am satisfied he was more absent than present in his son’s life during this period.
From 18 October 2022 to 23 July 2023, Mr Montsho was in prison, and he has subsequently been held in immigration detention. I am satisfied Mr Montsho maintained regular contact with his son during this period. This took the form of audio and audio-visual communications (noting the child has a link to contact Mr Montsho on his tablet device), as well as in-person visits with Ms H from time to time.
While Ms H’s evidence in respect of her child’s best interests traverses the parental support Mr Montsho provides to their son and the assistance he provides, it is clear enough Mr Montsho’s past behaviour has had an effect on the child. One aspect of this is the physical separation from his son by choice in 2020, under the AVOD from January 2021 and while incarcerated from 18 October 2022 and in detention from 23 July 2023. Ms H gave evidence of the child’s emotional response to the absence of his father and the child’s related social sensitivities. This is another aspect of the effect of Mr Montsho’s past conduct on his son.
Mr Montsho’s conduct, behaviour and absences have diminished his parental role and his relationship with Ms H. The last chance Ms H will allow is one measure of this, and it is of significance when considering the best interests of the child. The likelihood Mr Montsho will relapse into use of alcohol is very real and not remote.
Prospectively, should Mr Montsho relapse into alcohol or drug use and resume the pattern of his past behaviour, this would likely have a significant negative effect on the child. Not least, this could be expected to cause Mr Montsho to be physically separated from the child again, either by action of Ms H or forced removal under the criminal justice system or the Act. Furthermore, in such circumstances, it is likely Mr Montsho’s conduct would not be consistent with him playing a positive parental role or providing his son a positive role model, particularly in respect of alcohol and drug use, and in relation to women.
While the effect on the child of physical separation from Mr Montsho might be ameliorated to an extent by use of electronic communications, the same cannot be said in respect of the negative effects which would be likely to arise from Mr Montsho’s recidivist behaviour and adverse role modelling. Revocation of the mandatory visa cancellation decision would expose the child to this prospect.
Mr Montsho submits, if the mandatory visa cancellation decision is not revoked and he is required to return to Botswana, the resulting physical separation from his son is likely to have a negative effect on the child, against his best interests. He alleges Ms H and his son will not be in a position to visit him in Botswana as Ms H is scared of flying and she would not have the money to do so. This is supported by Ms H’s evidence and her assertion she would not move to Botswana as doing so would reduce her son’s quality of life and his opportunities for education and development.
The force of this submission is tempered somewhat by the facts of this case. Mr Montsho resided with Ms H and the child for a period of only several months in 2019 and, otherwise, he has been absent and engaging in contact with the child using electronic media with physical contact being confined to weekends and occasional visits. The closeness of the bond between Mr Montsho and his son and the emotional effects on the child Ms H described have developed in these circumstances. Viewed through this lens, while difficulties might arise with electronic communications and physical contact would be limited by distance if Mr Montsho returns to Botswana, it does not follow that the close relationship between father and son would end or that Mr Montsho would be unable to play a parental role with his son as he has done during the extended periods of his absences since the child was born and, in particular, from 2020. That said, the loss of physical contact with his father, even only weekends and during occasional visits, could be expected to have a negative effect on the child which feeds into consideration of his best interests.
Considering Mr Montsho’s past conduct, there are real questions about the extent to which he is likely to play a positive parental role over the next 12 years before his son turns 18. Should the pattern of Mr Montsho’s past conduct involving use of alcohol and sexualised, intimidatory and aggressive behaviour, particularly in respect of women, emerge again, this would run counter to him playing a positive parental role and being a positive role model for his son. Mr Montsho is alive to this risk, which was squarely put to him. So is Ms H, who is willing to give Mr Montsho a last chance. It is on this rather tenuous basis, Mr Montsho continued presence in Australia is said to be in the best interests of the child.
On Ms H’s evidence, the child wants his father back to play an active practical parental role in his life. Even though the child’s views are likely genuine and heartfelt, the child is only 6 years old. While the child’s views must be taken into account, a child of this age is unlikely to have the tools and maturity to consider all the relevant information in respect of his father’s past conduct and the risks of recidivism when evaluating what is likely to be in his best interests. For this reason, the weight which can be given to the child’s views is reduced.
While there is no evidence the child has been subject to abuse or neglect by Mr Montsho, on Ms H’s evidence, on 3 occasions she asked Mr Montsho to leave the house when he was intoxicated. Whether or not the child has been exposed to Mr Montsho’s past drunken behaviour or other serious conduct, which is not presently established, it is probable the child has experienced some emotional issues as a result of Mr Montsho’s prolonged absences during his short life, particularly since 2020.
Mr Montsho argues this consideration should be given very substantial weight, outweighing all other considerations. I do not agree. Consideration of the best interests of the child is not as clear cut as Mr Montsho asserts. The likelihood of Mr Montsho relapsing into alcohol use and re-offending is not remote or fanciful. It is a very real possibility which would likely have a negative effect on the child. This would not be in the child’s best interest.
Nevertheless, taking all these matters into account, I am satisfied this consideration weighs in favour of revocation.
Expectations of the Australian community
Matters to be considered in respect of the expectations of the Australian community are set out in s 8.5 of the Direction:
(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; or
b)    causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d)    commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e)    involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f)     worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable 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.
The direction in s 8.5(4) that the decision-maker should proceed on the basis of the Government’s views is not optional; it is mandatory.[101] Nevertheless, consideration of the Government’s views about community expectations ‘as a norm’ is not inimical to and it does not fetter the requirement in s 5.1(3) of the Direction to consider the specific circumstances of the case. In that context, it is for the decision-maker to determine the significance or weight attaching to the consideration: the ‘norm’ is not directive of the decision to be made under s 501CA(4)(b)(ii) in any particular case.[102] Most recently, Snaden J considered related matters in WVJB v Minister for Immigration, Citizenship and Multicultural Affairs[103] and, having reviewed relevant authorities, concluded:
… if there are, in any given case, circumstances that warrant that limited weight or significance should attach to the “norm” so expressed, then that is a course that a decision maker can prefer without any risk of non-compliance with Direction 99.[104]
[101] Ibid at [40].
[102] FBYR v Minister for Home Affairs [2019] FCAFC 185, per Charlesworth J and [73]-[75] and Stewart J at [89] and [102]-[103].
[103] [2024] FCA 320.
[104] Ibid at [28].
Thus, noting the principle set out in s 5.2(6) of the Direction and the question of relevance thus posed in the circumstances of each case, consideration of ‘the norm’ must be weighed with other relevant considerations (noting that primary considerations generally are to be given more weight than other considerations) when deciding if there is another reason to revoke the cancellation of the non-citizen’s visa.[105]
[105] Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 63 at [34]-[35].
Mr Montsho concedes this consideration weighs against revoking the mandatory visa cancellation decision.
I am satisfied it weighs quite heavily in the balance. Mr Montsho’s family violence offence adds weight, albeit the offence was singular and it did not involve physical violence. So, too, do the aggressive, sexual, intimidatory and violent elements of the offences he committed against women and female children.
Mr Montsho demonstrated significant and repeated disregard for Australian law, repeatedly breaching conditions of bail and intensive correction orders, and intruding upon the rights of victims to go about their daily activities in public without being exposed to the kinds of sexualised, intimidatory and drunken abuse, molestation and very serious conduct to which he subjected them.
It is on these matters the concerns about Mr Montsho’s character are raised. Quite clearly, Mr Montsho’s conduct is related to his consumption of alcohol, but consumption of alcohol contrary to Court orders is not a mitigating factor. In all likelihood, as Ms Blake observed, Mr Montsho’s underlying impulsivity and poor problem-solving skills are exacerbated when he is intoxicated. A similar conclusion might be drawn in respect of Mr Montsho’s propensity to engage in offending behaviour towards women when he is intoxicated. Whether this exposes an underlying attitude towards women in Mr Montsho I cannot say on the present evidence, but his crimes and very serious conduct suggest, when intoxicated, he engages in aggressive sexualised, intimidatory and violent behaviour towards women which raises serious character concerns.
The concerns about Mr Montsho’s character are somewhat mitigated by his remorse and the rehabilitative efforts he has made during the period he has been abstinent from alcohol while being held in custody and in detention. But the reduction in the apportionment of weight is slight, as Mr Montsho’s avowed resolve to remain abstinent from alcohol and his rehabilitative efforts have not been tested or demonstrated in the community. Furthermore, the extent of his rehabilitation is unclear as he has not undertaken a program for sexual offenders of the duration and intensity recommended by Ms Blake.
The time Mr Montsho participated in the Australian community without offending is short, from May 2019 to January 2021. He has demonstrated disregard for Australian laws and disrespect for important institutions, including courts. His conduct does not accord with the Government’s statement of community expectations.
Viewing these considerations through the prism of Australian community expectations as expressed in s 8.5 of the Direction and considering what is appropriate in the circumstances, on balance, I am satisfied significant weight should be given to the ‘norm’ in the context of Mr Montsho’s adverse character assessment.
This consideration weighs against revoking the mandatory visa cancellation decision.
Other considerations
Under s 9 of the Direction the other relevant considerations must be taken into account, including:
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests.
Legal consequences
Decision-makers are directed in s 9.1 of the Direction to be mindful that unlawful non-citizens are, in accordance with s 198 of the Act, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under s 189. This is the legal consequence of policy expressed in s 501(3A) and related provisions of the Act.
The mandatory visa cancellation decision effected a change in Mr Montsho’s legal status in Australia from that of a lawful non-citizen visa holder to that of an unlawful non-citizen subject to immigration detention under s 189 pending removal from Australia.
Furthermore, the mandatory visa cancellation decision under s 501(3A) triggered operation of s 501F(2) in respect of Mr Montsho’s Partner visa application. Under this provision, Mr Montsho’s Partner visa application is taken to have been refused without any further consideration of the merits of the application. In all likelihood, the Partner visa application fee will not be refunded and that is an additional legal consequence. I note there is no evidence before the Tribunal of the fee paid with Mr Montsho’s Partner visa application.
Initially, Mr Montsho raised the possibility of a protection claim, but this was expressly not pressed or substantiated. There is little evidence presently before the Tribunal to support such a claim. I note the materials in G19 and G20. Mr Montsho has not applied for a protection visa and he expressly disavowed any protection claim during the hearing.
This notwithstanding, to the extent the materials raise the possibility of protection issues and related considerations, as Mr Montsho has not applied for a protection visa and that possibility remains open to him, the preferable course is to defer any consideration of the possible claim until such an application is made. Should that occur, all relevant issues and related materials could be properly considered in a manner which is not presently possible within the limited time available under s 500(6L) of the Act.
Subject to protection considerations, should Mr Montsho apply for a protection visa, if the mandatory visa cancellation decision is not revoked and the Partner visa application remains refused by operation of law, the Minister accepts it is unlikely any other visa application by Mr Montsho would succeed. In the near future at least this is likely correct, as relevant character considerations could be expected to arise in the assessment of any such application and parts of Schedule 2 and Schedule 5 of the Migration Regulations 1994, may be applicable, including special return criteria if Mr Montsho leaves Australia.
Mr Montsho alleges he was not aware his Partner visa application is taken to have been refused. He presses for the mandatory visa cancellation decision to be revoked, whereupon his Partner visa application will remain to be determined on its merits and argues, in that context, the Minister will have another opportunity to have regard to relevant character considerations.
There is some force to this proposition, although deferring the character consideration in this manner would require revocation of the mandatory visa cancellation decision and releasing Mr Montsho into the Australian community, pending resolution of his Partner visa application. There is no evidence or even any reasonable estimate of when the Partner visa application would be decided if the deemed refusal is reversed. I note Mr Montsho asserted the period the application has been on foot already exceeds the Department’s published standard. In any event, a decision to reinstate Mr Montsho’s visa and, thereby, release him into the Australian community can only be made by complying with the Direction and weighing all the relevant considerations.
The consideration of legal consequences is an ‘other consideration’ which is to be given less weight than primary considerations of relevance.
Nevertheless, I am satisfied these matters weigh in favour of revocation.
Extent of impediments if removed
Mr Montsho referred to Botswana as ‘home’, as did his mother in a letter of support in which she suggested he should return home. Mr Montsho spent his formative years and much of his life in Botswana. He is familiar with the language and culture of Botswana and he has family members, including several cousins, residing there, albeit that he is not in close contact with them. It is possible his sister and mother might return to Botswana on completion of their activities in Australia and Japan. I note Mr Montsho’s mother provided written support for him to remain in Australia as she and his sister are not in Botswana.[106]
[106] G23.
Mr Montsho is likely to experience emotional stress and psychological issues, including possible depression and a greater risk of relapsing into alcohol use, if the mandatory visa cancellation decision is not revoked and he is required to leave Australia and return to Botswana. He asserts he will have access to lower quality health care than in Australia should this occur. He is concerned he will have no accommodation and poor employment prospects, particularly as remuneration in Botswana is substantially lower than in Australia. This, he argues, will diminish his capacity to provide financial support for his son and Ms H, who he will not be able to visit.

I accept Mr Montsho is likely to experience these impediments and they weigh in favour of revocation.
Impact on victims
The impact on victims must be considered under the terms of s 9.3(1):
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no direct evidence of the impact of the mandatory visa cancellation decision or the decision to be made presently, one way or the other, on members of the Australian community of the victims and their family members of Mr Montsho’s criminal offending, other than Ms H and the child.
Ms H provided an Impact Statement,[107] in which she provides very strong support for Mr Montsho to be allowed to remain in Australia, and she urges revocation of the mandatory visa cancellation decision.
[107] G21.
The Minister urges caution in consideration of her Impact Statement as a victim and when attributing weight.
In consideration of Ms H’s familial relationship with Mr Montsho and the clear and unequivocal evidence she has given in supporting his case, some caution might be appropriate when apportioning weight. The impact on Mr Montsho’s family members of the mandatory visa cancellation decision and non-revocation has already arisen when considering the strength, nature and duration of Mr Montsho’s ties to Australia under s 8.3 of the Direction. The consideration under s 9.3 has a different focus, in respect of the impact of the mandatory visa cancellation decision and revocation (or non-revocation) on members of the Australian community, and in particular victims and their families. Thus, it is the impact of these decisions on Ms H as a victim of Mr Montsho’s criminal behaviour which must be considered.
Viewed through that lens, it is an unavoidable fact Ms H is a victim of Mr Montsho’s family violence offence. In cases of this kind, it is not unknown for a victim to lend support to their perpetrator remaining in Australia. In this case, Ms H does so for reasons she expresses quite powerfully in her Statement and in her evidence. Her evidence goes to the impact on her and the child should the mandatory visa cancellation decision not be revoked and Mr Montsho be required to depart from Australia. The enforced physical separation which will result is likely to have an adverse impact on Ms H and the child.
It is relevant to observe Mr Montsho and Ms H were living separately, by choice, from in or about January 2020. On Ms H’s evidence Mr Montsho moved into separate residential arrangements when the child was approximately 2-years old because it was “uncomfortable” in her mother’s house. On Mr Montsho’s evidence, he and Ms H “split up” prior to the commencement of his increased alcohol consumption and offending. The imposition of the 2-year AVOD added to their separation, as did the custodial sentences Mr Montsho received for his criminal offending. The mandatory visa cancellation decision extended their separation as Mr Montsho was taken into immigration detention on his release from prison on parole on 26 July 2023. The impact of this on Ms H and the child I have already discussed.
These are relevant matters to take into account when determining the weight which should be given to this consideration.
The apportionment of weight must take account of the extent to which Ms H adverts to matters which do not go to the impact on her, as a victim, of the mandatory visa cancellation decision and the decision to be made presently in respect of revocation.
Considering these matters, Ms H’s evidence of the impact on her as a victim weighs in favour of revocation.
There is no direct evidence from other victims of Mr Montsho’s offences. The impact of Mr Montsho’s criminal behaviour on other victims can be understood on the basis of materials placed before the courts and sentencing remarks of Magistrates. This is underscored by the uncontested facts of his offences, including the sexual and violent nature of his offences against female victims. A decision to revoke the cancellation of Mr Montsho’s Visa might be expected to raise concerns amongst his victims about the risk he would re-offend. But without evidence, however, this is no more than a possibility about which little can be said.
On balance, taking account of these maters separately and cumulatively, this consideration does not weigh strongly for or against revocation.
Impact on Australian business interests
There is no substantial evidence of the impact of the mandatory visa cancellation decision or the decision to be made under s 501CA(4) on Australian business interests.
I note the evidence of Mr Montsho’s past employment in Australia and from his past employer.[108]
[108] G24.
This consideration does not weigh for or against revocation.
Additional considerations
There are no further considerations raised by the parties.
Conclusion
In Demir v Minister for Immigration, Citizenship and Multicultural Affairs,[109] Kennett J made the following observations which are presently apposite:
21. The metaphor of “weighing” relevant considerations should not be taken too literally. The exercise is not mathematical and cannot depend on the simple aggregation of factors on each side of a ledger. The conclusion … necessarily involves persuasion of a human decision-maker, whose thought processes cannot be reflected in lines of code, as to what is the right result in the circumstances. That persuasion flows from the decision-maker’s personal understanding as to the significance of each of the factors they are required or permitted to take into account, in the light of all the material they have considered. So much is consistent with the decision-maker’s duty to “call his own attention to the matters which he is bound to consider” and to give “proper, genuine and realistic consideration to the merits of the case”. Correspondingly, the statutory specification of mandatory considerations requires those considerations to be taken into account, but not necessarily to be given any particular degree of weight.
[Citations removed.]
[109] [2023] FCA 870.
Primary considerations relating to the protection of the Australian community, family violence and the expectations of the Australian community weigh heavily against revoking the mandatory visa cancellation decision.
The very serious nature of Mr Montsho’s conduct and the risk of harm to individuals in the Australian community, particularly women and female children, should he re-offend adds substantial weight. The seriousness of harm which would result should Mr Montsho re-offend reduces the tolerance of risk. The weight is increased by the likelihood he will experience episodes of decompensation which increase the very real risk he will relapse into use of alcohol or cannabis and, consequently, the likelihood he will re-offend.
Mr Montsho’s remorse, insight, treatment and rehabilitation serve to lessen the weight, but not greatly. The rehabilitative programs and the treatment he has undertaken are not of the frequency or duration recommended by Ms Blake (weekly sessions for 6 to 12 months). The extent of Mr Montsho’s insight into sexual elements of his offending and his very serious conduct is unclear, even though the remorse and regret he has expressed is likely genuine.
Mr Montsho’s progress and resolve have not been tested in the community where he will likely encounter stressful circumstances, not least in the context of family life, residing with Ms H and his son. Mr Montsho has only several months experience of living as a family with Ms H and his son in 2019. How Mr Montsho will react and respond to such stresses is uncertain. Ms H’s support and further active participation in rehabilitative programs and relevant treatment may assist, but the likelihood he will relapse into alcohol or drug use, as he has done in the past, is not fanciful or remote. It is a real possibility which weighs against the mitigating effects of the rehabilitation and treatment he has undertaken.
In the context of Australian community expectations and the ‘norm’ expressed by the government, the character concerns arising in respect of Mr Montsho’s record of serious and offending conduct add significant weight. The Australian community’s tolerance of Mr Montsho’s criminal and other serious conduct is reduced by the relatively short period in which he has been ordinarily resident in Australia.
Conversely, the primary considerations relating to the strength, nature and duration of Mr Montsho’s ties to Australia and the best interests of his child weigh for revocation of the mandatory visa cancellation decision, as do other considerations.
Mr Montsho’s ties to Australia are not broad or of long duration. He resided with Ms H for only several months in 2019, and they have lived separately since in or about January 2020. To the extent this lightens the weigh, it is offset by the strength and nature of his ties to Ms H and their son. The strength of these ties is measured, in part, by Mr Montsho’s extensive periods of physical separation from Ms H and their child and Ms H’s evidence she is willing to give him a ‘last chance’. The contingent state of the relationship between Ms H and Mr Montsho, consequent to Mr Montsho’s past behaviour, including his past offences and very serious conduct, and the uncertainty thus introduced informs the strength and reduces the weight of Mr Montsho’s familial ties in Australia. The likely adverse effects on Ms H and the child of not revoking the mandatory visa cancellation decision are coloured by the likelihood Mr Montsho will experience period of decompensation periodically and significant uncertainty about his response to such eventualities. This consideration increases the weight, but not greatly.
Mr Montsho argues his child’s best interests should outweigh all other considerations. There is some force to this submission. The desire of the child to engage in a physical relationship with his father is a very weighty matter, in which rights of the child to such a relationship intersect with the child’s best interests which are affected by the behaviour and conduct of the father and the legal consequences of his past crimes. On the available evidence the attribution of weight is not as disproportionate as Mr Montsho contends. The best interests of the child must be considered in the particular circumstances, noting he has likely been adversely affected by Mr Montsho’s past conduct and behaviour. The likelihood of Mr Montsho playing a positive parental role in the future is contingent on the likelihood he will experience episodic decompensation and the very real risk he will relapse and re-offend in the future. On balance, however, I am satisfied the child’s best interests weigh substantially in favour of revocation, but not decisively.
The following considerations carry less weight than the primary considerations to which I have referred, but they add weight in favour of revocation.
The legal consequences of the mandatory visa cancellation decision, including the deemed refusal of his Partner visa application and the likelihood the fee paid with that application will not be refunded, weigh in favour of revocation. It is not appropriate to revoke the mandatory visa cancellation decision in order to provide Mr Montsho with a second chance on grounds the character concerns could be re-assessed in the context of his Partner visa application. The weight of this consideration is reduced as the change in Mr Montsho’s immigration status is mandated by legislative policy where character thresholds are surpassed consequent to his ‘serious criminal history’ and his Partner visa application is taken to have been refused by operation of law. Mr Montsho was not warned of this possibility, but s 8.1.1(1)(g) of the Direction states this does not weigh in his favour. To the extent any protection claim or non-refoulement obligation is suggested (and no such claim was expressly made), it is best deferred for consideration in the event Mr Montsho lodges a protection visa application. On balance, this consideration adds some weight in favour of revocation.
The impediments Mr Montsho is likely to face if he is required to leave Australia and he returns to Botswana weigh in favour of revocation. The weight is reduced as Botswana was Mr Montsho’s home until the age of 23, and he and his mother refer to it in those terms. Ms H’s evidence Mr Montsho’s home is in Australia, with her and the child, does not align with past facts of their separate residential arrangements for most of the time Mr Montsho has been in Australia since arriving in May 2019 (all but several months in 2019), and it is tinged with prospective uncertainty.
Ms H’s support for reinstatement of Mr Montsho’s visa and the impact on her, as a victim, if that does not occur add weight in favour of revocation.
Weighing these considerations separately and cumulatively it is important to maintain a steady eye on the principles and relevant considerations under the Direction without losing sight of the human dimensions of the decision being made.
Taking all relevant considerations into account, I am satisfied the considerations weighing against revocation are heavier in the balance than those in favour.
The weight of Mr Montsho’s ties to Australia, the best interests of his son, the legal consequences of the decision, the impediments he will face if returned to Botswana and the impact on Ms H in favour of revoking the mandatory visa cancellation decision, is not as great as the weight of other relevant considerations. The considerations in respect of protection of the Australian community, Mr Montsho’s family violence and the expectations of the Australian community weigh more heavily in the balance. In the circumstances of Mr Montsho’s case, the seriousness of his conduct and the harm to individual members of the Australian community, particularly women and female children, should he relapse and re-offend, exceed the thresholds of tolerance in principle 5.2(4) and s 8.1.2(1) of the Direction.
That being so, I am satisfied there is not ‘another reason’ to revoke the mandatory visa cancellation decision for the purposes of s 501CA(4)(b)(ii) of the Act.
From this it follows, the threshold of satisfaction in s 501CA(4)(b) of the Act is not reached and the power to revoke the mandatory visa cancellation decision is not enlivened.
In these circumstances, the correct decision is to affirm the 31 March 2024 decision under s 501CA(4) of the Act.
Decision
The 31 March 2024 decision under s 501CA(4) of the Act not to revoke the decision to cancel Mr Montsho’s Bridging Visa A is affirmed.

I certify that the preceding 239 (two hundred and thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member.

................................[sgd].....................................
Associate
Dated: 15 May 2024

Dates of Hearing:

Solicitor for Applicant:

24 & 26 April 2024

Ms Marta Mamarot, SouthWest Migration & Legal Services

Solicitor for Respondent:

Ms Sophie Edmondstone, MinterEllison

Date of offence	Date of conviction	Description of offence	Sentences and Orders
(a)	24 January 2021	11 February 2021	Attempt stalk/intimidate intend fear of harm (domestic)	$500 fine; 2-year Apprehended Violence Order (Domestic).[24]
(b)	13 December 2021	11 May 2022	Sexually touch another person without consent; Common assault (2 counts)	$1,000 fine; 18-month term of imprisonment to be served in the community under Intensive Correction Order; 200 hours community service.[25]
(c)	18 January 2022	11 May 2022	Stalk/intimidate intend fear physical etc. harm (personal)	$1000 fine; 2-year Apprehended Personal Violence Order.[26]
(d)	19 June 2022	3 August 2022	Attempt stalk/intimidate intend fear of harm (personal); Common assault; Continue intoxicated behaviour after move on direction	2-month term of imprisonment.[27]
(e)	15 October 2022	30 November 2022	Common assault; Stalk/intimidate intend fear physical etc. harm (2 counts)	12-month term of imprisonment.[28]