MVVW and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 283
•12 March 2025
MVVW and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 283 (12 March 2025)
Applicant/s: MVVW
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/10610
Tribunal:Deputy President Clare Thompson SC
Place:Perth
Date of Decision: 12 March 2025
Date of Written Reasons: 31 March 2025
Decision:The Tribunal affirms the decision under review.
........
Statement made on 31 March 2025 at 3:57pm................................................................
Deputy President
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no. 110 – primary and other considerations – protection of Australian community – family violence – strength, nature and duration of ties to Australia – expectations of the Australian community – best interests of minor children – Applicant is a 44-year-old year old citizen of the United Kingdom – Non-Revocation Decision is affirmed
LEGISLATION
Administrative Review Tribunal Act 2024 (Cth) - sections 9, 53, 55
Family Law Act 1975 (Cth) – section 114Q
Migration Act 1958 (Cth) – sections 15, 189, 196, 197C, 198, 499(1), 499(2A), 501(3), 501(3A), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501E, 501F, 503
Migration Regulations 1994 (Cth) – Schedule 5 cl 5001
CASES
AJL20 v Commonwealth of Australia [2020] FCA 1305
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Fotu and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 45
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121, 136
Khalil and Minister for Home Affairs [2019] FCAFC 151
Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 90 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024) – paras 4, 5.2, 5.2(2), 5.2(3), 5.2(4), 7, 7(2), 8, 8.1(1), 8.1.1(1)(a), 8.1.1(1)(a)(ii), 8.1.1(1)(a)(iii), 8.1.1(1)(b), 8.1.2, 8.1.2(a), 8.1.2(b), 8.2, 8.2(3)(c), 8.2(3)(c)(iii), 8.3, 8.5, 8.5(2), 8.5(2)(a), 8.5(2)(c), 9, 9.1, 9.2, 9.2(1), 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3
Statement of Reasons
The decision in this matter was made and provided to the parties on 12 March 2025 with a note that written reasons would be provided within a reasonable time. These are those written reasons.[1]
THE APPLICATION
[1] Khalil and Minister for Home Affairs [2019] FCAFC 151 at [41].
The Applicant has sought review of a decision of a delegate of the Respondent (Minister) dated 16 December 2024, not to revoke the cancellation of his Resident Return (Class BB) (Subclass 155) visa under s 501CA(4) of the Migration Act 1958 (Act).[2]
[2] Exhibit R1, G3, 19.
BACKGROUND
The Applicant was born in 1980 in the United Kingdom[3] and remains a citizen of the United Kingdom.[4] He first arrived in Australia in 2003 at the age of 23 on a Working Holiday visa, and settled in Australia in April 2007.[5] He came to Australia in April 2007 to be with his partner, referred to in this decision as Ms P, whom he married and had two children with.
[3] Exhibit A9, G20, 187.
[4] Ibid.
[5] Exhibit A7.
On 4 July 2006 the Applicant was convicted in the Reading and Sonning Magistrates Court in the United Kingdom, on his plea of guilty, for offences that took place in November 2002.[6]
[6] Exhibit R1, G6, 65; G7, 67-69.
On 3 July 2018, in lieu of a conviction for common assault, the Downing Centre Local Court directed that the Applicant enter into a good behaviour bond for 18 months.[7]
[7] Exhibit R2, TB3, 155.
The Applicant and Ms P separated in 2019.[8] Subsequently, the Applicant’s former wife was granted provisional apprehended domestic violence orders against the Applicant on 23 February 2020,[9] 4 April 2020,[10] and 12 October 2020.[11]
[8] Exhibit A7 at [5].
[9] Exhibit R2, TB1, 48-55.
[10] Exhibit R2, TB1, 56-64.
[11] Exhibit R2, TB1, 72-75.
On 25 January 2021 the Burwood Local Court of New South Wales sentenced the Applicant to an Intensive Corrections Order (ICO) for 12 months for a series of offences committed against Ms P on various dates between March and August 2020, following the breakdown of their marriage:[12]
(a)four counts of ‘contravene prohibition/restriction in AVO (Domestic)’;
(b)three counts of ‘common assault (DV)-T2’;
(c)one count of ‘attempt stalk/intimidate intend fear of harm (domestic)-T2’;
(d)one count of ‘stalk/intimidate intend fear physical etc harm (domestic)-T2’; and
(e)one count of ‘destroy or damage property (DV)’.
[12] Exhibit R1, G5, 57-62.
On 25 January 2021 the Court also made a final Apprehended Domestic Violence Order (ADVO) protecting Ms P.[13]
[13] Exhibit R2, TB2, 137.
On 27 July 2021 the Applicant breached the ICO and was charged with ‘assault occasioning bodily harm’ and ‘contravene prohibition/restriction in AVO (domestic)’ for offences against Ms P.[14] As a result, the ICO was revoked and the Applicant was imprisoned for the remainder of his sentence.[15]
[14] Exhibit R2, TB4, 83, 171-173.
[15] Exhibit R2, TB1, 83.
On 12 October 2021 the Applicant’s visa was cancelled,[16] and on 29 June 2022 the Minister made a decision not to revoke the cancellation of his visa.[17] The Applicant lodged an application for merits review of the Non-Revocation Decision with the Administrative Appeals Tribunal (AAT).
[16] Exhibit R2, TB5, 198.
[17] Exhibit R2, TB5, 207.
On 13 July 2022 the Applicant was convicted in the Burwood Local Court of New South Wales of offences he committed on 27 July 2021 against Ms P. He was sentenced to 12 months’ imprisonment for his conviction of ‘assault occasioning bodily harm’, and received a two year Community Correction Order (CCO) for his conviction of ‘contravene prohibition/restriction in AVO (domestic)’.[18]
[18] Exhibit R1, G4, 46-47; Exhibit R2, TB1, 20-27.
In September 2022 the AAT revoked the Minister’s decision to cancel his visa (2022 revocation). The Applicant was released from immigration detention on the same day. Ms C, his then domestic partner, gave evidence at the AAT hearing in respect to the 2022 revocation.
On 21 September 2023 the Applicant was convicted on a plea of guilty in the Gosford Local Court of New South Wales of further offences:[19]
(a)two counts of ‘contravene prohibition/restriction in AVO (Domestic)’, against Ms C;
(b)one count of ‘stalk/intimidate intend fear physical etc harm (Domestic)’, against Ms C;
(c)one count of ‘common assault (DV)’, against Ms C; and
(d)one count of ‘act with intent to influence a witness’, against a male friend.[20]
[19] Exhibit R1, G10, 141-142; G5.
[20] Exhibit R2, TB1, 2.
The offences against Ms C were committed on 21 March 2023. The act with intent to influence a witness involved the Applicant seeking his friend to contact Ms C to try and influence her to not give evidence against him.
The Applicant received an aggregate sentence of 24 months’ imprisonment.[21] On the same date, the Court made a final ADVO protecting Ms C and her daughter.[22]
[21] Exhibit R1, G10, 141-142; G5.
[22] Exhibit R2, TB1, 45-47.
On 14 November 2023 the Minister cancelled the Applicant’s visa under section 501(3A) of the Act (Cancellation Decision),[23] on the basis that the Applicant had a substantial criminal record within the meaning of section 501(6)(a), and was 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 territory. The Applicant was notified of the Cancellation Decision by letter of the same date for delivery by hand at Junee Correctional Centre.[24]
[23] Exhibit R1, G18, 116.
[24] Exhibit R1, G18, 116.
On 28 November 2024 the Applicant made representations to the Minister requesting revocation of the Cancellation Decision under s 501CA of the Act.[25]
[25] Exhibit R1, G19; Exhibit A9, G20.
On 18 December 2024, pursuant to s 501CA(4) of the Act, a delegate of the Minister decided not to revoke the Cancellation Decision (Non-Revocation Decision).[26] The Applicant lodged his application for review by this Tribunal on the same day.[27]
[26] Exhibit R1, G3, 16.
[27] Exhibit R2, G2.
The Applicant has on-going family law proceedings. As a result of this, some details including the citation of the AAT’s reasons for decision in respect to the 2022 revocation, have been redacted.[28]
[28] Section 114Q of the Family Law Act 1975 (Cth).
THE HEARING AND THE EVIDENCE
The hearing took place by video link on 25 and 28 February and 4 March 2025. Both parties were represented. At the time of the hearing, the Applicant was in immigration detention in Western Australia and chose to attend the hearing via video-link, rather than in person.
The following documents were marked as exhibits:
(a)The Applicant’s bundle of evidence, filed 14 February 2025 (Exhibit A1);
(b)The Applicant’s bundle of evidence, filed 19 and 20 February 2025 (Exhibit A2);
(c)Section 501G Documents (Exhibit R1);
(d)Documents TB1 – TB6 and document TB8 of Tender Bundle filed 28 January 2025 (Exhibit R2);
(e)Document TB7 of the Tender Bundle filed 28 January 2025 (Exhibit R3);
(f)Document STB1 of the Supplementary Tender Bundle filed 20 February 2025 (Exhibit R4);
(g)Document STB2 of the Supplementary Tender Bundle filed 20 February 2025 (Exhibit R5);
(h)Document STB3 consisting of a report from a clinical psychologist regarding Child B dated 12 February 2025, and a letter from a clinical psychologist regarding Child A (Exhibit R6)
(i)Applicant’s statement dated 14 February 2025 (Exhibit A7);
(j)Applicant’s statement dated 12 June 2024 at G21 (Exhibit A8);
(k)Applicant’s request for revocation dated 28 November 2023 at G20, appendices 1-4, pages 201 - 207 (Exhibit A9);
(l)Applicant’s undated statement at G41, pages 310 - 312 (Exhibit A10);
(m)Report by Mr Borenstein, dated 17 February 2025 (Exhibit A11);
(n)Report by Mr Borenstein, dated 23 August 2022 (Exhibit A12); and
(o)Statement of Ms S, dated 13 February 2025 (Exhibit A13).[29]
[29] Exhibits R3, R5 and R6 were admitted over the strenuous objections of the Applicant’s counsel. The objections centred on the documents being provided late, so that there was no opportunity for the Applicant to respond, prejudicial to the Applicant and of uncertain origin. As the material was plainly relevant to the matters I am required to consider, I admitted them and have considered what weight I should attribute to them in coming to my conclusions.
The Applicant, Mr Borenstein, a clinical psychologist, and Ms S, the Applicant’s current partner, gave oral evidence via video link and were cross-examined.[30]
[30] In closing the Applicant’s counsel made the submission that the hearing was infected by procedural unfairness as I had informed counsel that I would not permit the leading of oral evidence in chief in addition to the written statements, other than to make corrections. This came about against the backdrop of the Applicant having been permitted to orally expand his written evidence in chief for nearly 3 hours on the first day of the hearing, which resulted in the hearing needing to go into a third day, despite the Tribunal sitting extended hours on days 1 and 2. Both Ms S and Mr B were able to be re-examined in the usual manner. In my view my decision to limit the use of oral evidence in chief of these two witnesses was consistent with sections 9, 53 and 55 of the Administrative Review Tribunal Act 2024 (Cth).
I was also assisted by:
(a)the Respondent’s Statement of Facts, Issues and Contentions, filed 28 January 2025 (Respondent’s SFIC); and
(b)the Applicant’s Statement of Facts, Issues and Contentions, dated 14 February 2025 (Applicant’s SFIC); and
(c)a table of convictions agreed upon by both parties, reproduced as ‘Annexure A’ of this decision; and
(d)a table of the calculation of the total time that the Applicant had spent in prison or immigration detention, prepared by the Minister and agreed to by the Applicant’s counsel.
LEGISLATIVE FRAMEWORK
Migration Act
Under sections 501(3) and (3A) of the Act, the Minister must cancel a person’s visa if he or she is satisfied that the person does not pass the ‘character test’, and the visa-holder is serving a full-time sentence of imprisonment in a custodial institution of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Act provides that a person does not pass the character test if they have a substantial criminal record, which in turn is set out on section 501(7)(c) to mean they have been sentenced to a term of imprisonment of 12 months or more.
Once a person’s visa is cancelled under s 501(3A) of the Act, the Minister must give them written notice inviting them to make representations about revocation of the original decision. If representations are made, the Minister may revoke the decision to cancel the visa if satisfied that[31]:
(a)the person passes the character test; or
(b)there is another reason why the original decision should be revoked.
[31] Section 501CA(4)(b) of the Act.
That is, to make a decision under section 501CA(4) a decision-maker must first decide whether the person passes the character test under section 501CA(4)(b)(i) and, only if satisfied that the person does not pass that test, decide whether, under section 501CA(4)(b)(ii), there is another reason why the original decision should be revoked.[32]
[32] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Section 499(2A) of the Act mandates that the Tribunal must comply with written directions given by the Minister regarding its functions or the exercise of those powers given to it under section 499(1) of the Act.
Direction no. 110
On 7 June 2024, the Minister issued Direction no. 110 under s 499 of the Act (Direction 110). The direction applies specifically to decisions by the Tribunal on an application for revocation of a mandatory cancellation of a visa under section 501CA.
Paragraph 5.2 of Direction 110 sets out mandatory principles which ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’.
These principles include the following:
1Australia 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.
2The safety of the Australian Community is the highest priority of the Australian Government.
3Non-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.
4The 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 [sic] risk of causing physical harm to the Australian community.
5Australia 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.
Paragraph 8 of Direction 110 sets out the primary considerations which must be taken into account in making a decision under s 501CA(4). These are:
(a)protection of the Australian community from criminal or other serious conduct;
(b)any family violence the Applicant has engaged in;
(c)the strength, nature and duration of the Applicant’s ties to Australia;
(d)the best interests of minor children in Australia affected by the decision; and
(e)the expectations of the Australian community.
Paragraph 9 of Direction 110 sets out the other considerations which the Tribunal must take into account, insofar as they are relevant to an application. These are:
(a)the legal consequences of the decision;
(b)the extent of impediments if removed; and
(c)the impact on Australian business interests.
Paragraph 7 of Direction 110 provides:
(a)information and evidence from independent and authoritative sources should be given appropriate weight when applying the considerations;
(b)the protection of the Australian community is generally to be given greater weight than other primary considerations, and primary considerations should generally be given greater weight than the other considerations; and
(c)one or more primary considerations may outweigh other primary considerations.
ISSUES
The Applicant, by his counsel, concedes that he does not pass the character test in sections 501(6)(a) and 501(7)(c) of the Act[33]. Therefore, the sole live issue for consideration is whether there is another reason why the Cancellation Decision should be revoked. [34]
[33] Applicant’s SFIC at [6].
[34] Section 501CA(4) of the Act.
THE APPLICANT’S CONDUCT AND OFFENDING
The Applicant’s criminal history is summarised at paragraphs [3] – [14] above and set out in details in the Annexure to these reasons. Most recently, on 21 September 2023, the Applicant was convicted by the Gosford Local Court of New South Wales of the following criminal offences, which gave rise to the Cancellation Decision:[35]
(a)two counts of ‘contravene prohibition/restriction in AVO (Domestic)’;
(b)one count of ‘stalk/intimidate intend fear physical etc harm (Domestic)’;
(c)one count of ‘common assault (DV)’; and
(d)one count of ‘act with intent to influence a witness’.
[35] Exhibit R1, G10, 141-142; G5.
For these offences, and for a breach of a Community Corrections Order, the Applicant received an aggregate sentence of 24 months’ imprisonment.[36]
[36] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Applicant, by his counsel, concedes that he fails the character test in section 501(6) of the Act because his convictions and the sentence imposed for them means he falls within the meaning of section 501(7), having been sentenced to a term of imprisonment of 12 months or more. That concession is properly made as his failure to pass the character test arises as a matter of law. I find that he has failed the character test.[37]
[37] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 [63].
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
The power to revoke the Cancellation Decision will only be enlivened if there is ‘another reason’, within the meaning of s 501CA(4)(b)(ii) of the Act, why it should be revoked. As a result of the concession made by the Applicant, all the evidence and submissions at the hearing were directed at this question.
The Applicant’s submissions
The Applicant’s written submissions were, in summary, that while he conceded that the nature of his offending had been ‘very serious’, he was remorseful and determined to change.[38] The Applicant submitted he had been diagnosed with ADHD, prescribed appropriate medication which was working, was determined to undergo continued rehabilitation, and as a result of the medication he was taking, he no longer had the desire to rely on alcohol or recreational drugs.[39]
[38] Applicant’s SFIC at [28].
[39] Applicant’s SFIC at [31]; Exhibit A7 at [15].
He submitted that the primary considerations of the strength, nature and duration of his ties to Australia, and the best interests of minor children in Australia, weigh in favour of revocation.[40]
[40] Applicant’s SFIC at [67]-[79].
Protection of the Australian Community
Direction 110 at 8.1(1) requires me to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and to that end the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, the Tribunal is directed to 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.[41]
[41] See also paragraph 8.1(1) of Direction 110.
Criminal history and other conduct
The Applicant’s most recent criminal history is set out in paragraph 35 above. Prior to these convictions the Applicant was convicted of a number of other domestic violence offences beginning in 2020.[42] He also had an English offence for battery arising out of an incident in 2002.[43]
[42] Exhibit R1, G5.
[43] Exhibit R1, G6, 65; G7, 67-69.
Nature and seriousness of the conduct
I must consider the nature and seriousness of the Applicant’s criminal offending and other conduct.[44] I am directed that certain types of criminal or other conduct is viewed very seriously by the Government and the Australian community[45] and that certain criminal or other conduct is considered serious.[46] Furthermore, the scope of what I may consider as either very serious or serious, is not limited to those matters specifically included in Direction 110.[47]
[44] Paragraph 8.1(1) of Direction 110.
[45] Paragraph 8.1.1(1)(a) of Direction 110.
[46] Paragraph 8.1.1(1)(b) of Direction 110.
[47] Paragraph 8.1.1(1)(a)-(b) Direction 110.
The Applicant concedes that the nature of his offending[48] is very serious and acknowledges that this is the second time his visa has been cancelled, following the 2022 revocation.[49] However, he says that he is now in a ‘different position’ compared to when he was released from detention in September 2022, as a result of:
the correct diagnosis, medication, determination not to rely on alcohol or drugs to calm his racing mind, his relationship with his new partner [Ms S], and his understanding that this is likely his last change with no further chances if he ever reoffends’.[50]
[48] See Annexure A to this decision.
[49] Applicant’s SFIC at [28] – [29].
[50] Applicant’s SFIC at [31].
The Minister submits that the Applicant’s offending is regarded as very serious under paragraphs 8.1.1(1)(a)(ii) and (iii) of Direction 110, and that there is a ‘recurring theme in the applicant’s criminal history of committing family violence offences against his current or former partners’.[51] The Minister also submitted the offending is frequent, comprising 17 offences over 4 years, and demonstrates a trend of increasing seriousness, in terms of frequency and aggravation.[52]
[51] Respondent’s SFIC at [26].
[52] Respondent’s SFIC at [32].
The offending shows a pattern of family violence which is extremely disturbing.
In 2020, following the breakdown of his marriage to Ms P, there were several occasions on which the Applicant punched his former wife in the face or stomach with a closed fist,[53] threatened to stab her and slit her throat,[54] later told her “I’d like to slit you into pieces”, slapped, pinched, and elbowed her, removed CCTV cameras at her home,[55] and told their children he would ‘see them in another life’.[56] This took place whilst the two children, aged 3 and 7, were in their home which should be a safe place for them, and in some instances they were physically present to witness the violence. These offences took place against the backdrop of an interim domestic violence order being granted to Ms P, which notably included a no contact provision and a provision that the Applicant not contact Ms P for at least 12 hours after drinking alcohol. The Applicant entirely disregarded these conditions.
[53] Exhibit R1, G8, 79 Ln 15-16.
[54] Exhibit R1, G8, 78 Ln 26-40; 79 Ln 49.
[55] Exhibit R1, G8, 79 Ln 31-36.
[56] Exhibit R1, G8, 78 Ln 38.
Of particular significance in the current context, there are a series of convictions recorded on 21 September 2023, for conduct which took place in March 2023, encompassing:
·an assault against his then partner, Ms C, at a time when her nine-year old daughter was present in the home;
·convictions for stalking, also in respect to Ms C;
·an attempt to intimidate Ms C to not give evidence or change her evidence, by using a friend to telephone her repeatedly over a 6-day period;
·a telephone call to Ms C, despite having been served with an AVO taken out in her favour; and
·breach of the AVO in favour of his former wife.
Whilst the assault against Ms C is objectively less serious than the offences against the Applicant’ former wife, it took place just 6 months after he was released from immigration detention,[57] having successfully sought revocation of his first visa cancellation decision. Notably there was evidence at the 2022 AAT hearing of the many courses he had undertaken in an attempt to rehabilitate, so it was against the background of those efforts that the offending took place.
[57] Exhibit R1, G5.
The breaches of AVO and the attempt to influence the evidence of Ms C are both objectively serious offences in my view, as they seek to undermine the justice system. They demonstrate a disregard for the rule of law.
In my view, having regard to the evidence, and the comments and assessment of the offending by the courts, the offending was very serious and weighs heavily against revocation.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
I must also consider the risk to the Australian community should the Applicant commit further offences.[58] This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct,[59] and an assessment of the likelihood of him engaging in that type of conduct in the future.[60] There is no statutory constraint on the way I am to assess that risk, other than the requirement for me to adopt a rational and probative approach to the assessment.[61]
[58] Paragraph 8.1.2 of Direction 110.
[59] Paragraph 8.1.2(2)(a) of Direction 110.
[60] Paragraph 8.1.2(2)(b) of Direction 110.
[61] BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] per Kenny J.
The offences of stalking are of concern, as are the offences involving the attempt to intimidate, and the breaches of ADVO, the latter two because they indicate a lack of acceptance of the rule of law. There is considerable literature regarding the insidious impact of stalking on a victim, and there is considerable research which suggests that a person convicted of stalking will go on to commit a further, more serious crime of violence.[62]
[62] Exhibit R2, TB8, 346, 356-361.
ADHD
Relevant to the risk assessment is the question of the impact, if any, of ADHD on the Applicant’s propensity to offend in the future. Specifically, I will consider the Applicant’s frequently repeated assertion that he is less likely to reoffend due to his diagnosis and treatment for ADHD. He says ADHD explains his reliance on alcohol, and, to a lesser extent, recreational cannabis and other drugs. He claims that since being medicated for ADHD he no longer craves alcohol and cannabis and so will be unlikely to offend. It is therefore necessary to consider closely the evidence which he has led in that regard.
The Applicant’s youngest son was diagnosed as having ADHD in mid-2023,[63] which information apparently first came to the Applicant’s attention in mid-2024.[64] The Applicant’s evidence was that, as a result of that diagnosis, he started reading about ADHD and he identified some of the symptoms as being behaviours he engaged in, on that basis he concluded that he was also a sufferer of ADHD. The first mention of him having ADHD is on 25 September 2024, during a consultation with a mental health nurse in immigration detention, at which time he is recorded as saying ‘I need something for my ADHD, anxiety and racing thoughts’.[65]
[63] Exhibit R6, 34.
[64] Exhibit R4, STB1, 4.
[65] Exhibit R4, STB1, 3.
On 8 October 2024 he met with a psychiatrist, Dr L, who records that the visit was to ‘discuss anger issues and possible ADHD.’[66] The notes of that meeting record that the Applicant had done an online self-assessment for ADHD and that he ‘[a]lso thinks that ADHD might explain his offending behaviour’. Dr L did not diagnose the Applicant with ADHD, but rather concluded it was reasonable to trial atomoxetine on the ‘presumption he may have ADHD’.
[66] Exhibit R4, STB1, 4.
On 7 November 2024, the Applicant was assessed by a different psychiatrist, Dr S, after his move from Villawood in New South Wales, to Yongah Hill, in Western Australia.[67] Dr S did not make a diagnosis of ADHD, however she did increase the Applicant’s dose of atomoxetine, in line with his request.[68]
[67] Exhibit R4, STB1, 6-7.
[68] Exhibit R4, STB1, 7.
On 17 February 2025, Mr Borenstein, a clinical psychologist, provided a report on behalf of the Applicant in which he says he administered the Jasper/Goldberg Adult ADHD Screening Examination and that the ‘results confirm [the Applicant’s] diagnosis of Adult ADHD’.[69] Mr Borenstein’s reference to a diagnosis of ADHD is a reference to the notes of Dr S from her assessment of the Applicant on 7 November 2024,[70] however, it is clear from those notes that Dr S did not in fact make a diagnosis of ADHD. Furthermore, the Jasper/Goldberg Adult ADHD Screening Examination is not a diagnostic tool, but rather a screening tool used to ascertain if a person displays symptoms of ADHD. The screening tool is widely available online for self-assessment, as are articles regarding its use, including its scoring. Notably, symptoms of ADHD are also consistent with symptoms of other mental health conditions including mania, depression, and anxiety.
[69] Exhibit A11, 6.
[70] Exhibit A11, 4.
Whilst it is open to a psychologist to diagnose ADHD, this is not in fact what Mr Borenstein did. Rather, he relied on what he had been told by the Applicant regarding an apparent prior diagnosis, performed a screening test, and was satisfied that the Applicant’s self-identified symptoms ‘confirmed’ that prior diagnosis. No formal diagnosis of ADHD has ever been made and even if one is made, access to medication to control the symptoms is only available from a psychiatrist, or possibly from a GP through a private prescription (see discussion at [62(b)] below).
A further report was provided by Dr V, a consultant psychiatrist, dated 23 January 2025.[71] It is clear from her report that she does not make a diagnosis of ADHD, nor does she find that a diagnosis has been made. Her comments are appropriately cautious and non-conclusionary, given the lack of information she had available to her. She reports as follows:
[71] Exhibit A2, document 18.4.
Impression
Symptoms described by [the Applicant] are consistent with ADHD with likely comorbid major depressive disorder. However, without a clear history of childhood symptoms on either school reports or parental report, a formal diagnosis of ADHD cannot be made.
Atomoxetine appears to have provided some benefit to both [the Applicant]’s concentration difficulties and his depressive symptoms, and it would be reasonable to increase the dose to see if any further benefit can be elicited.
Suggestions:
1. Increase atomoxetine to 80mg.
2. If there are ongoing symptoms, and this dose is inadequate, consideration of increasing to 100mg after 4-6 weeks. This is the maximum dose.
3. If [the Applicant] leaves detention and is released into the community, my understanding is that NSW GPs can prescribe atomoxetine, however this would need to be a private prescription because [the Applicant] doesn’t have a confirmed diagnosis of ADHD yet.
4. Strong recommendation for GP to refer to an ADHD psychiatrist in NSW to verify the diagnosis and give treatment recommendations.
5. GP to manage constipation, could trial Metamucil or similar.
6. Continue psychology reviews.
Notably, whilst the Applicant repeatedly asserted in his evidence that he had been diagnosed with ADHD and that this was an underlying cause of his prior offending, when his claim of a diagnosis was challenged in cross-examination, he became annoyed and agitated, and was derisive in his responses.
There are several concerns that I have with reliance on the Applicant’s asserted ADHD.
(a)First, whilst I accept that the Applicant has reported symptoms in his psychiatric and psychological consultations which are consistent with ADHD, his narrative of symptoms is entirely self-reported, and not independently verified or corroborated by anyone else. Additionally, the Applicant has read widely online, and undertaken a self-assessment tool which is available online, prior to him first raising the possibility of ADHD whilst in detention. Furthermore, assuming that his symptoms are genuine, they are not symptoms which are solely associated with ADHD (see [58] above).
(b)Secondly, whilst it is certainly possible that the Applicant has ADHD, it is not the subject of a formal diagnosis, much less a treatment plan. This has significance from a risk perspective. The Applicant reports that he is doing well whilst medicated using atomoxetine, however, he does not have access to a psychiatrist other than whilst in detention, and he has not sought to identify a psychiatrist to formally diagnose and treat him, or seek a referral to one from a GP. Consequently, once in the wider community his access to the medication, which he claims has been life-changing, is uncertain. Whilst I accept that it is possible that he may be able to obtain the medication from a GP, the opinion of Dr V that this as an option is qualified,[72] and there is no guarantee that a GP would provide a private prescription for the medication in the absence of a confirmed diagnosis, or at the least, further investigations.
(c)Thirdly, the evidence that the ADHD drugs he has been prescribed are working, is unreliable. It is self-reported evidence by the Applicant and has not been tested either in the community, or in any rigorous clinical setting. Objectively, the evidence is questionable when, since October 2024 the Applicant’s dosage of the drug has been increased from 40 mg,[73] to 60 mg,[74] then to 80 mg,[75] and finally to 100 mg on 24 February 2025,[76] which is a 250% increase in 5 months. The increase to 100mg was foreshadowed in the report of Dr V, in late January 2025, where she said:
If there are ongoing symptoms and this dose is inadequate, consideration of increasing to 100mg after 4-6 weeks. This is the maximum dose.
(Emphasis added)
The current increased dosage of 100mg being taken by the Applicant was therefore predicated on the earlier dosage of 80mg being inadequate, and him experiencing ongoing symptoms. These comments appear at odds with his self-reporting of being assisted by the medication and it helping him, as he said in his statement filed 10 days before the dosage was increased to 100mg.[77] Given 100mg is the maximum dose, and the Applicant must have experienced ongoing symptoms to be given it, there is a clear risk that the medication is not working as effectively as it should be.
[72] Exhibit A2, document 18.4, 3.
[73] Exhibit R4, STB1, 4-5.
[74] Exhibit R4, STB1, 6-7.
[75] Exhibit A2, document 18.4, 3.
[76] The Applicant’s oral evidence.
[77] Exhibit A7 at [12], [15].
Nature of the harm
To determine the risk to the Australian community if the Applicant committed further offences or engaged in other serious conduct, I must consider the nature of the harm to individuals, or the Australian community should he reoffend.[78]
[78] Paragraph 8.1.2(2)(a) of Direction 110.
The Applicant acknowledges that the nature of the harm, should he reoffend, can lead to serious consequences, but claims that he has been rehabilitated and that there are many factors which place him in a low risk of reoffending. These factors include the applicant’s new diagnosis of ADHD and proper medication, his own desire to stop reliance on alcohol and drugs, undertaking ongoing counselling, his personal reflections about his conduct and management of anger, his remorse and acceptance of responsibility, his love for his sons, his love for his new partner, and his future business plans.[79]
[79] Applicant’s SFIC at [49].
In my view the nature of the harm the Applicant will inflict on the Australian community, and individuals within it, will be serious if he reoffends. His past history is one of violence and aggression against his domestic partners, including in front of his own and their children. His most recent offences include one which strikes at the very heart of the justice system, which is a very serious offence.
I consider the nature of the harm which may be caused if the Applicant were to reoffend in a similar manner to his past history, to be serious.
Likelihood of the non-citizen engaging in further criminal or serious conduct
To determine the risk to the Australian community if the Applicant committed further offences or engaged in other serious conduct, I must also consider the likelihood of his reoffending if he is permitted to remain in the Australian community.[80]
[80] Paragraph 8.1.2(2)(b) of Direction 110.
The Minister submits that there is insufficient evidence to support the conclusion that the Applicant is now rehabilitated.[81] In summary, the Minister submits that the report by Mr Borenstein provided for the 2022 AAT decision, in which he claimed the Applicant’s risk of reoffending was ‘extremely low’, should be given limited weight given the Applicant offended around 6 months after the AAT’s decision. Further, the Minister notes the Applicant’s attempts to minimise his offending toward Ms C, stating that it was ‘one argument blown out of proportion’ and he was ‘trying to get a message to the victim around alleged incorrect police facts’.[82]
[81] Respondent’s SFIC at [39].
[82] Respondent’s SFIC at [39.1]; Exhibit R2, 41.
I have set out above my concerns regarding the ADHD evidence. If the Applicant has ADHD, then his access to medication is apparently critical to his risk of resuming his long-standing alcohol and drug abuse, which are both elements in his mental health problems and his offending. I was not reassured by the lack of forward planning that has been done to ensure he can, immediately on release into the community, access a psychiatrist to provide a proper diagnosis and a treatment plan, including medication.
The Applicant’s oral evidence was that he could take his mental health plan to a GP and obtain the medication, although he had variously said he intended to see a psychiatrist regularly, and later that he would only see one to get medication as needed. The Applicant does not have a current mental health plan. The plan issued in February 2023[83] is not current as it is prior to both the most recent offending, and prior to the possibility of ADHD being an issue. Furthermore, in his oral evidence the Applicant said that it only entitled him to seek privately funded services, which he was unable to access. A new mental health plan is clearly necessary.
[83] Exhibit A1, document 18.1.
The Applicant has engaged in a substantial amount of rehabilitation since the 2022 revocation. This includes:
(a)ten counselling with Men’s Referral Service between October and December 2024;[84]
(b)undertaking various relevant rehabilitative courses offered by Alison Empower Yourself on topics including drug and alcohol abuse and domestic violence, in January 2025;[85]
(c)undertaking the Positive Lifestyle Program for Individuals course, run by the Salvation Army, in October 2024;[86]
(d)undertaking an intervention program through Relationships Australia that covered domestic violence situations for men, in December 2024;[87]
(e)attending regular online sessions with SMART Recovery Australia, since January 2025;[88] and
(f)attending an offender program run by NSW Department of Communities and Justice called ‘Remand Domestic Violence’, between 26 May 2023 and 6 June 2023.[89]
[84] Exhibit A1, document 8.1.
[85] Exhibit A1, document 8.2–8.4.
[86] Exhibit A1, document 8.5.
[87] Whilst there is no paperwork provided to support this, the Applicant’s oral evidence was that he had met with a support person, ‘Gordon’, from Relationships Australia. The Applicant noted that this was a free program and would be available to him if he was released from detention.
[88] Exhibit A1, document 8.6.
[89] Exhibit A1, document 8.8.
There are also numerous courses he undertook between October 2021 and July 2022 on topics including alcohol and drug abuse, and domestic violence, whilst on remand awaiting sentencing for his October 2022 offending against his former wife.[90] In addition, whilst at Villawood in 2022, the Applicant undertook counselling who described him as ‘transparent and honest in working on some symptoms of Anxiety and looking at some coping strategies for stress management’.[91]
[90] Exhibit A1, document 8.13.
[91] Exhibit A1, document 12, letter dated 1 August 2022.
With the exception of the 2023 course, all of these activities have been undertaken whilst in detention awaiting the outcome of his application to revoke the Cancellation Decision. The Applicant referred himself to the Head to Health service on 10 March 2023, however I do not have any evidence before me indicating what, if any, courses or support that involved. In his oral evidence the Applicant claimed the service ‘let him down’[92] and indicated he would not use the service again. The 2023 Domestic Violence course run by NSW Department of Communities and Justice was undertaken whilst on remand for the violence offence he committed against Ms C, his then partner, which took place on 21 March 2023.[93] There is no evidence of any rehabilitation whilst in prison between September 2023 and his release into detention in about May 2024, although I accept there were likely limited options available to him.
[92] I understand this was related to difficulty in accessing it, as it is a fee paying service and had a waitlist.
[93] Exhibit R2, TB1, 23.
At the time of his sentencing in 2023, Community Corrections in NSW rated him as being a medium low risk of reoffending.[94] This assessment is objectively favourable to the Applicant, however, it meant that if he had been permitted to stay in the community he would not have been supervised and received support from Community Corrections.
[94] Exhibit R2, TB1, 42 – 43; Exhibit R1, G10, 140, Ln 34 – 37.
The Applicant has developed a plan to help manage his risk factors when in the community. His plan involves the following elements:
(a)continuing access to ADHD medication;
(b)seeing a private psychiatrist, both for medication and to ‘keep on track’;
(c)regular sessions with the psychologist he has been seeing whilst in detention;
(d)continuing attendance at regular online sessions with SMART Recovery Australia;
(e)attending an in-person Men’s Behaviour change program[95] which he is waitlisted for;[96]
(f)utilising a support person identified as ‘Gordon’, who is apparently available 9-5 on weekdays and who he met through a Relationships Australia intervention program he undertook in December 2024;[97]
(g)utilising the Liven App, which has been of assistance for him in understanding his triggers and self-managing his emotions;
(h)going to the gym regularly to keep himself calm; and
(i)maintaining his relationship with Ms S.
[95] Exhibit A7 at [17].
[96] Exhibit A1, document 8.11.
[97] See n 87 above.
Several of these actions[98] require him to pay, which has been a barrier to him accessing assistance in the past. The Applicant’s evidence was that he would not face that barrier this time as he has received an inheritance from his mother, and Ms S, his current partner, offers him financial support and ‘has been good’. The Applicant’s mother died in 2012,[99] an event that he described as traumatic for him, so that it appears unusual that, 14 years later, there is money available for the first time from an inheritance. Other than the statement that there were funds from an inheritance from his mother, no further detail was provided. Ms S gave evidence and confirmed that she would be in a position to provide financial support for counselling and other treatment.
[98] The psychiatrist, psychologist, SMART Recovery, the gym, and ADHD medication, particularly if he requires a private script.
[99] Exhibit A7 at [2].
The Applicant said in his oral evidence that he had organised appointments to see the psychologist he has been seeing in detention once he is released. There is however nothing provided by that psychologist to support that this is more than a hope on the part of the Applicant.
Mr Borenstein has written two reports regarding the Applicant, the first in 2022,[100] and the second in 2025.[101] In the 2022 report, Mr Borenstein said:
[The Applicant’s] personal and clinical history, together with character refences (sic) and [his] commitment to psychological treatment, together with motivation, guilt and remorse, will, in my opinion, mean the risk of him reoffending in similar fashion is extremely low.[102]
[100] Exhibit A12.
[101] Exhibit A11.
[102] Exhibit A12, 11.
In his 2025 report, Mr Borenstein said:
[The Applicant] expresses optimism for his future, and he is motivated to ensure he maintains combined psychiatric and psychological treatment, which together with appropriate pharmacotherapy successfully treating ADHD will, in my opinion, mean the likelihood of him coming to the attention of police and the courts again will be significantly reduced.[103]
[103] Exhibit A11, 9.
Notably, in neither of his 2022 nor 2025 interviews of the Applicant, each of which Mr Borenstein said was about 17 minutes in duration, was any focus placed on the Applicant’s proven propensity for domestic violence offending. None of the screening tools used in those interviews were directed at domestic violence.
In his oral evidence Mr Borenstein said the Applicant was at low risk of reoffending. This rating was predicated on the Applicant maintaining his ADHD medication. It was Mr Borenstein’s view that because the alcohol and recreational drugs led to the offending, and the ADHD medication reduced the Applicant’s desires to use alcohol and drugs, the risk was low.
Mr Borenstein’s stated opinion of the Applicant’s risk of reoffending was not impacted despite him:
·accepting that the Applicant had substantially minimised his offending in his interviews;
·being unaware the Applicant’s children had been present for some of the offending;
·being unaware that the Applicant did not access treatment following his release in 2022;
·being unaware the ADHD was not in fact a confirmed diagnosis; and
·accepting that the Applicant’s underlying alcohol abuse disorder remained.
He further said that it is not unusual for people to relapse, and that in his opinion the Applicant required a minimum of 18 months of treatment in the community upon release.
I find it difficult to accept Mr Borenstein’s opinion of the Applicant’s likelihood of reoffending being low, given the matters set out in paragraphs 80 – 83 above.
The most significant risk factor for the Applicant’s reoffending is his access to, and on-going engagement in, treatment for his mental health and alcohol abuse and drug issues, including potentially his continued access to medication for ADHD, along with the other supports necessary to assist him to make good decisions and not engage in further violent or other offending. I have set out above my concerns about access to mental health support, particularly in respect of the need for an assessment and potential treatment for ADHD.
Whilst the Applicant has expressed good intentions, whether any of his plan actually transpires, and whether he engages in the 18 months of treatment in the community that Mr Borenstein says is necessary, is the most significant concern I have in assessing his likelihood of reoffending. Ultimately, I am doubtful that it will happen.
In my view, the likelihood of the Applicant engaging in further criminal or serious conduct is moderate to high.
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of the Applicant’s conduct, and the risk to the Australian community should he commit further offences or engage in other similar conduct, I have concluded that that this consideration weighs strongly against revocation.
Family violence committed by the non-citizen
Paragraph 8.2 of Direction 110 requires a decision-maker to consider family violence in certain circumstances. Paragraph 4 of the Direction includes an extensive definition of family violence which says:
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.
Direction 110 at [4] provides examples of behaviour that may constitute family violence which relevantly includes:
(a) an assault; or
…
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property;. . . .
At the time of the 2022 revocation the Tribunal was bound by Ministerial Direction no. 90,[104] which did not include family violence as a consideration. Family violence is now required to be assessed as a primary consideration in Direction 110.
[104] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021).
In considering the seriousness of the family violence, Direction 110 directs me that the frequency of the conduct, and whether there is any trend of increasing seriousness, must be taken into account.[105] The Minister contends that 16 of the Applicant’s 17 convictions were for family violence related conduct and that he has contravened domestic violence orders on 7 occasions by physical violence, contacting the victims, verbal abuse, intimidating the victims, and property damage.[106] This analysis is correct and I accept it.
[105] Paragraph 8.2(3)(a) of Direction 110.
[106] Respondent’s SFIC at [42].
The Applicant has been subject to a number of apprehended domestic violence orders in favour of his former wife, Ms P, his former partner, Ms C, and their children. The following table sets these out.
Date Type Person protected Duration 23 February 2020[107] Provisional Ms P Until revoked or a further order becomes effective 4 April 2020[108] Provisional Ms P Until revoked or a further order becomes effective 12 October 2020[109] Interim Ms P, Child A and Child B Until revoked or a further order becomes effective 25 January 2021[110] Final Ms P 2 years - until 3 April 2022 21 March 2023[111] Provisional Ms C and daughter Until revoked or a further order becomes effective 21 September 2023[112] Final Ms C and daughter 3 years - until 20 September 2026 [107] Exhibit R2, TB1, 48-55.
[108] Exhibit R2, TB1, 56-64.
[109] Exhibit R2, TB1, 72-75.
[110] Exhibit R2, TB2, 137-139.
[111] Exhibit R2, TB1, 17-19.
[112] Exhibit R2, TB1, 45-47.
Paragraphs 8.2(3)(b), 8.2(3)(c) and 8.2(3)(d) of Direction 110 are also directly relevant to the matters which arise in the Applicant’s circumstances. The written submissions relevant to these matters are set out in the parties’ SFICs.[113]
[113] Applicant’s SFIC at [54]-[59]; Respondent’s SFIC at [41]-[44.5].
Despite the Applicant’s counsel’s strong advocacy, and acceptance that the offences were serious, I do not accept that the Applicant has reformed. Most significantly, I do not accept that he has insight into the impact of his conduct on his former partners and his children. I set out below a summary of the matters which are of particular concern in this context.
(a)His tendency to minimise the extent and nature of the offending which goes directly to his insight into his behaviour,[114] illustrated by:
[114] Paragraph 8.2(3)(c)(i) of Direction 110.
(i)failing to disclose the true nature of his offending to Mr Borenstein in their consultation in February 2025;
(ii)repeatedly invoking allegations regarding his former wife’s conduct and mental health during his oral evidence, including in documents filed in September 2024 in the Federal Circuit and Family Court of Australia;[115]
[115] Exhibit R1, G31.
(iii)explaining his removal of CCTV cameras from the property in which his former wife and children were living, by saying that the cameras were his, and then saying that he then left them at the house;
(iv)deliberately downplaying his offending in an affidavit he swore in his family law proceedings in September 2024,[116] which proceedings are ongoing, for parenting orders in respect to his two children;
[116] Exhibit R1, G29, 224 at [15].
(v)describing the first of his domestic violence offences, in the UK in 2002, as self-defence, when that was plainly not what the court found;
(vi)minimising the fact he was convicted of offences against Ms C in March 2023 on the basis that the neighbours called the police, thereby suggesting that the behaviour was only a problem because the neighbours could hear it; and
(vii)dismissing the fact he was convicted of attempting to intimidate a witness by saying that he was only trying to get her to tell the truth.
(b)His assertions in cross-examination were that his children were not present in the home when the offences took place,[117] or they did not personally witness any violence, and that his youngest child would either not recall, or not be affected by the events of violence in his home.[118] This is despite clear evidence they were present,[119] and despite psychologist reports for each of the two children being in evidence which contradicted his beliefs as to their trauma, which he had had in his possession for several days prior to the hearing.[120] Furthermore, in her closing submissions counsel sought to reagitate her objection to the admission of those reports into evidence, several days after they had been admitted, on grounds which included them being irrelevant. This did not assist my acceptance of the proposition that the Applicant has insight into the impact of his offending on his children.
(c)As to the various orders set out in the table above:
(i)the Applicant made numerous references in his oral evidence to his former wife having contacted him, which completely misconstrues the nature and effect of the orders; and
(ii)in respect to the provisional order granted to Ms C and her daughter, he repeatedly denied having been served with it, despite there being very clear evidence of that fact.[121]
(d)I accept that the Applicant has undertaken a substantial number of relevant rehabilitation courses since he has been in detention in 2024,[122] and previously,[123] and he has substantial plans to continue his rehabilitation after his release into the community.[124] However, his heavy reliance on what he says is a diagnosis of ADHD suggests that he lacks insight into the offending and that he has landed on this potential diagnosis as the sole explanation for all his prior conduct. Whilst I accept that his alcohol and drug use are risk factors in his past offending, and I accept that if a confirmed diagnosis and treatment for ADHD is available those risks factors may reduce his dependency on both alcohol and drugs, and this in turn may reduce the likelihood of him reoffending, that all remains speculative at this time. I am also struck by the fact that he seems to approach his possible ADHD as somehow divorced from him, as if it is a third party that has caused him to do things which he had no autonomous role in, which appears to me to lack any self-reflection.
(e)Against the background of having had the benefit of the 2022 revocation, and then reoffending within 6 months of his release from detention, the recent reliance on ADHD as the explanation for his behaviour and the potential saviour of his life, particularly in light of the matters I set out in (a) and (b) above, is concerning.
[117] Notably, Ms C’s then 9-year-old daughter was in her home when the March 2023 offences took place, see Exhibit R1, G10, 138 Ln 9, 141 Ln 32;G23, 212.
[118] Paragraph 8.2(3)(c)(ii) Direction 100 at [8.2(3)(c)(ii)
[119] Exhibit R1, G10, 141; G8, 79.
[120] Exhibit R6.
[121] Exhibit R1, G10, 126 Ln 25; G10, 143; Exhibit R2, TB1, 47.
[122] Exhibit A1, documents 8.1-8.6.
[123] Exhibit A1, document 8.8.
[124] Paragraph 8.2(3)(c)(iii) of Direction 110.
Three further factors are relevant in this context.
First, Ms S’s evidence. She has been in a relationship with the Applicant since September 2024, during which time he has been in detention, and has been in Western Australia since at least November 2024. Ms S lives in New South Wales. She describes the relationship as ‘intimate’.[125] She first met the Applicant when he renovated her bathroom, prior to his most recent incarceration. In Mr Borenstein’s opinion provided during cross-examination, Ms S being aware of the offending history was ‘protective’ of her. Her written statement says ‘I understand the seriousness of the offenses’.[126]
[125] Exhibit A13, 1.
[126] Exhibit A13, 1.
In cross examination Ms S said that she had seen the court statements regarding his offending. She was dismissive of his offending history, saying in respect to the events on 11-12 July 2021,[127] that she did not believe he had punched his former wife 20 times[128] and ‘that girl would be dead . . . three days later she was still there’, and further that she had discussed the offending with a friend of the Applicant’s, Mr AP, and they both agreed that this could not have happened. The photographs of Ms P’s injuries on that occasion were in evidence before me and show significant bruising which appears consistent with a substantial physical attack on her.[129]
[127] The Applicant was convicted and imprisoned in July 2022 in relation to these offences.
[128] Exhibit R2, TB1, 78.
[129] Exhibit R2, TB2, 113-135.
In respect to the offending against Ms C, Ms S said the Applicant was ‘hard done by, by the police’ and ‘it goes without saying that the police can convict and this then goes against the other party’.[130] Ms S also said Ms C ‘was an alcoholic’, which appeared to me to be victim blaming, and that the Applicant ‘was not convicted of violent offences against Ms C’, which is patently incorrect.
[130] Which I understood to be an allegations that the Applicant was somehow set up by the police.
In re-examination Ms S said that she had no fears for her children being around the Applicant. In particular, Ms S described her 15-year-old daughter and the Applicant as ‘besties’, which concerned me given their age difference, and the Applicant’s history of violence.
When asked for her back-up plan if things didn’t go well, she said she would call the police ‘straight away’, but pointed out that she doesn’t believe that will happen and that ‘he’s promised me he is rehabilitated, it’s his past, it’s not going to define his future’. A similar statement is made in her written statement where she says:
I am fully aware of [the Applicant’s] past criminal charges, but I know that doesn’t define who he is. If I did, I wouldn’t have chosen to be in a relationship with him.[131]
[131] Exhibit A13, 1.
In my view Ms S’s evidence does not suggest that the knowledge of his history is protective of her and her three children, particularly her daughter. Additionally,[132] it does not support the proposition that their discussions of his offending evidence any real rehabilitation or insight into his offending.
[132] Paragraph 8.2(3)(c) of Direction 110.
Secondly, I have read the Applicant’s statements in which he expresses his insight into his family violence history,[133] and his apology to his former wife,[134] written in July 2022 prior to the 2022 revocation, and prior to his offences in March 2023. In September 2023 NSW Corrective Services said:[135]
[133] Exhibit A7.
[134] Exhibit A1, document 10.1.
[135] Exhibit R2, TB1, 42.
Insight into impact of offending
·[the Applicant] demonstrated minimal insight into the impact on the victim as he maintained that the incident was relatively minor; stating "it was more emotional than anything" and "it wasn't a major incident where anyone got physically hurt".
·He stated that not being able to speak to the victim had been difficult and had cost their relationship, so he could not comment on how she was affected.
·His insight appeared largely around the impact on himself from being in custody including his business going "downhill".
More recently, in November 2024 whilst in detention, and following the Minister’s Cancellation Decision, the Applicant responded to a welfare inquiry following a Family Court appearance, by describing the proceedings as ‘a shit show’, and saying he ‘wished he could kill the c***” and ‘I should’ve killed the c***’, in reference to his former wife.[136] In my view the expressions of contrition in his written statements including his letter to his former wife, do not serve to counterbalance his minimisation of the offending conduct, or his continual blaming of his former wife which serve to undermine his assurances of being rehabilitated.
[136] Exhibit R2, TB6, 248.
Thirdly, it concerns me that the Applicant or his counsel would have thought it was appropriate to elicit a supporting statement from Ms C[137] and then seek to call her to give oral evidence. The need for her to give evidence, which was the intention, was averted when the Minister advised during the hearing that she was not required for cross-examination. It does not seem to me that potentially re-traumatising a victim of domestic violence, who has an extant ADVO against the Applicant, demonstrates any real level of insight and rehabilitation in respect to his family and domestic violence offending.
[137] Exhibit A1, document 14.
Finally, I note that Exhibit R3 includes a lengthy history of the nature of his matrimonial relationship, as told by his former wife and her mother. I have not given this material any weight in my decision and the Minister did not urge me to do so. I am more concerned in this decision about the Applicant’s current state of insight into his offending and the effectiveness of his rehabilitation efforts regarding this aspect of his conduct.[138]
[138] Direction 110, [8.2(3)(c)]
In all the circumstances, I conclude that the Applicant’s family violence offending weighs strongly against revocation of the Cancellation Decision.
The strength, nature and duration of ties to Australia
In accordance with paragraph 8.3 of Direction 110, I must also consider the strength, nature and duration of the Applicant’s ties to Australia.
The Applicant has permanently lived in Australia since 2007 when he came to be with his then fiancée, now his former wife, Ms P. At the time of this arrival he was aged 26. He had previously spent time in Australia in the years 2003 – 2006, arriving in January 2003 and leaving Australia on eight occasions between then and June 2006, for periods ranging from 1 day to about 3 months.[139] He was 22 years of age when he first arrived in Australia. He has therefore lived in Australia for just over 22 years and came here as an adult, by his own choice. I accept that he has substantial ties to Australia and has made his life here, including having had several partners after his divorce, and having two children with his former wife.
[139] Exhibit R2, TB5, 238-241.
The Applicant previously had a business in the building industry and says he has contributed positively to the Australian community for the ‘majority of his life in Australia with family violence events in 2020/2021 and 2023 and one unrelated criminal conviction in 2018’.[140] He remains the owner of a business name and holds an ABN, so that he could commence a business in his former industry.
[140] Applicant’s SFIC at [63].
In support of his application for revocation of the Cancellation Decision, a number of people have provided letters of support. These are in addition to the evidence of Ms S. The most recent supportive correspondence comprises:
(a)a letter from Ms C, the victim of the crimes the Applicant committed in March 2023, dated 19 February 2025;[141]
(b)a letter from Mr D, a friend of the Applicant’s since 2018, dated 13 February 2025;[142] and
(c)a letter from Mr AP, a friend and colleague of the Applicant’s for about 20 years, dated 18 February 2025.[143]
[141] Exhibit A1, document 14.
[142] Exhibit A1, document 16.
[143] Exhibit A1, document 17.
Whilst none of these witnesses specifically state that they have the right to remain in Australia either as citizens or permanent residents, I infer they are, or do, from their circumstances, including the length of time they have known the Applicant, the work they are engaged in, and the context in which they know the Applicant. In addition, Ms S gave evidence that she was an Australian citizen and I infer her children are also Australian citizens.
I accept that if the Applicant is forced to return to the United Kingdom his partner, Ms S, would not be able to return with him due to her parenting responsibilities.[144]
[144] Applicant’s SFIC at [65].
There are also a series of supportive statements relevant to this consideration filed in the earlier proceedings which resulted in the revocation decision. These comprise:
(a)a letter from Mr AP, dated 1 September 2022;
(b)letters from Mr JD, dated 8 August 2022 and 7 February 2022, a friend of the Applicants since approximately 2012; and
(c)letters from Mr AR, one undated and one dated 1 September 2022, a friend of the Applicant’s since 2008.
The difficulty with the older supportive statements is that they are outdated, the Applicant having demonstrated that despite the authors’ faith in him and his ability to reform himself, he has failed to do so and once again committed a series of criminal offences. This makes it difficult to place any weight at all on them. Only one person, Mr AP, has provided a statement on both occasions, and I have reservations about Mr AP’s evidence in light of the matters I have discussed at paragraph 98 above.
The evidence makes it clear that the Applicant has a wide circle of business acquaintances, and has been in this country, contributing to it, including by raising a family and his involvement as a football coach for his sons’ teams, for over 20 years.
Overall, I conclude that the strength, nature and duration of the Applicant’s ties to Australia weighs moderately in favour of revocation of the Cancellation Decision.
Best interests of minor children in Australia affected by the decision
I must also consider the best interests of the minor children in Australia affected by the decision.
Child A and Child B
The Applicant has two sons who I will refer to as Child A and Child B. He has not seen either child since July 2021.[145] In the period from April 2020 until July 2021, the Applicant spent a total of 5 months incarcerated on three separate occasions. Consequently, it is now nearly four years since the Applicant has been in the community and able to see his sons on a regular basis.
[145] Exhibit A1, document 4, 2 at [10].
Following the breakdown of the Applicant’s marriage, the Applicant and his former wife agreed to informal parenting plans, proposed by his former wife. The last of these was on 5 July 2021.[146] On the evening of 11 July 2021, the Applicant committed the offences for which he was convicted and imprisoned in July 2022 and which led to his first visa cancellation.
[146] Exhibit A1, document 10.4.
There have apparently been some messages sent to the Applicant via the Messenger Kids platform which are ostensibly from the children, however the Applicant said in evidence he believed their mother, his former wife, was in fact responsible for the messages.
Child A was born in December 2013. He was aged 7½ years at the time he last saw his father, and 6½ years of age when he last had the opportunity for regular contact in the community with his father. He is now 12 years and 4 months of age.
Child B was born in February 2017. He was aged 4½ years at the time he last saw his father, and had recently turned 3 years of age when he last had the opportunity for regular contact in the community with his father. He is now 8 years of age.
Both Child A and Child B were present in the home on Sunday 28 March 2020 when the Applicant assaulted their mother on a number of occasions and made serious threats against her.[147] The children were also present in the home on Saturday 16 May 2020 when the Applicant, whilst on bail for his March offences, returned to the family home and again assaulted and berated their mother.[148] The children were again present during the day of Sunday 17 May 2020 when the Applicant returned to the family home, caused damage to CCTV cameras which had been installed at the property, and told the children “I will see you in another life”. He then proceeded to argue with his former wife, hit her with a closed fist and threaten her with the words “I’d like to slit you up into pieces”.[149] Ultimately, he was apprehended by the police in the early evening of 17 May 2020, hiding under one of the children’s beds.[150]
[147] Exhibit R1, G8, 78.
[148] Exhibit R1, G8, 79.
[149] Exhibit R1, G8, 79.
[150] Exhibit R1, G8, 80 Ln 4-8.
Exhibit R6 comprises two reports from clinical psychologists regarding the children. The report regarding Child A[151] is simply a confirmation that he attended 8 sessions with a clinical psychologist in the period May to December 2022. It says ‘[h]e was referred to me through Victim Services NSW for treatment following incidents of family violence’. I infer from this that a decision was made by Victim Services NSW, a State Government entity, that Child A was in need of counselling assistance as a result of family violence he had experienced.
[151] Exhibit R6, STB3, 39.
The report in respect to Child B is more extensive. The initial referral to the psychologist came from the child’s GP as a result of ‘ADHD, Oppositional Defiant Disorder, developmental trauma in light of witnessing domestic violence, and attachment issues.’ Child B was diagnosed with ADHD in mid-2023 by a psychiatrist, and he was prescribed Ritalin. The psychologist saw Child B on four occasions between May and July 2024. The report sets out a lengthy history of Child B’s behaviours and the events at home regarding the Applicant, as reported by the mother. It is hardly surprising that the mother gave the history given she is the sole carer of her children.
The Applicant objected strongly to the admission of Exhibit R6, several times prior to it being admitted into evidence, and again during closing submissions.[152] The report is based on what the mother has reported to the clinical psychologist as the history, and, in the Applicant’s submission, is prejudicial. He also complained about it being served on Thursday 20 February 2024, which gave no time for the Applicant to file evidence in response. Whilst I accept that it was filed shortly before the first day of the hearing, Mr Borenstein was able to give his expert opinion of the impact of domestic violence on the children as the report was provided a week before his evidence was heard.
[152] Notably, counsel then sought to rely on some of the material in the reports, in addition to Exhibit R3, TB7 which was also the subject of objection, in support of the submission that it was not certain that the Applicant’s former wife would permit access to his children if the Applicant was successful in the Family Court.
There is very little detail about the Applicant’s conduct included in the report regarding Child B. Relevantly, the passages are:
[The Applicant], who was described by [Ms P] as a violent man with an addiction to alcohol, was detained in jail. There has been no contact with the family since 2021. [153]
Prior to [the Applicant] being detained, [Child B] had reportedly witnessed his father’s acts of domestic violence towards [Ms P].[154]
Precipitating factors to [Child B]’s mental health include this parents’ separation, during which he had witnessed his father becoming violent towards his mother.[155]
[153] Exhibit R6, STB3, 33.
[154] Ibid.
[155] Exhibit R6, STB3, 35.
These facts are objectively true and borne out by the evidence of the convictions, statements of material facts, and police reports.[156]
[156] Exhibit R1, G5; G8, 78-79; Exhibit R2, TB2, 103-111; TB4, 159-197.
There is one reference to an unproven allegation, which the Applicant made no mention of in his objections. The Minister confirmed in closing submissions that they did not rely on that portion of the report, and neither do I.
The remainder of the history is a recitation of Child B’s behaviours that Ms P, his mother, has observed during her care of her son in the period following the Applicant’s incarceration. Whilst it is possible that Ms P is an unreliable historian of her son’s behaviour in the home, I have no basis for finding that she is.
Taken as a whole, the report makes it plain that Child B has been acting in a manner that is consistent with having suffered trauma, but that he is responding to intervention and support. He is described as a ‘bright, creative and sporty child who is capable of demonstrating empathy when he is regulated’.
The report does not make any recommendation about whether it is in the best interests of the child for the Applicant to see him.
Mr Borenstein was asked about some issues arising from the report in both his cross-examination and re-examination. He was not aware until his cross-examination that some of the offending took place in front of the children. On being asked, as a general proposition, about the impact of family violence on children he said:
·children being exposed to family violence is an obvious red flag, but it can be balanced in some cases by other positive interactions;
·he was unable to say that one event of family violence could scar a child for life;
·he accepted that having witnessed some of the events the children did, would give them trauma;
·trauma can be long-standing;
·them being 3 and 6 years of age at the time of the offending means that the offending could still have an impact on them; and
·the trauma would come from the whole dynamic of the parental interaction and how it is acted out, not only the actions of one parent.
Mr Borenstein’s view was that a father’s role in the lives of their children was very important. I accept that proposition. Furthermore, none of Mr Borenstein’s opinions set out in the paragraph above appears to me to be controversial and neither counsel suggested it was, and I accept it.
During cross-examination the Applicant variously:
·denied the children were present at any time when he assaulted his wife;
·minimised what they could or did see or hear;
·minimised the potential impact of anything they heard or saw;
·suggested that Child B was too young to have any memory of the events;
·said Child B’s diagnosis of ADHD would prevent him from having any memory or trauma about anything he saw or heard;
·said that smashing of inanimate objects, like a TV, was typical of ADHD;[157]
·rejected the psychologist report as being biased, and based on what his former wife reported; and
·initially accepted, and then denied, Child A was present and witnessed his behaviour at any time.
[157] This being a behaviour which was reported in Exhibit R6 as something Child B engaged in: Exhibit R6, STB3, 33.
Prior to his offending, the Applicant was involved in his children’s sports activities, including by being a football coach, using his previous experience as a football player in the UK to assist them and their teammates.[158] The children have said they wish to see their father which I accept is quite genuine.[159]
[158] Exhibit A1, document 7.
[159] Ibid.
The children have quite clearly been impacted by the domestic violence.[160] I accept it would be the entire home environment, rather than one single action, which gave rise to the impact on the children.[161] That does not excuse the Applicant from responsibility for what his children suffered and continue to suffer; plainly he is responsible given his history of drug taking, alcohol dependence and violence. Nor does it mean that Ms P is responsible for the children’s trauma, and I do not suggest that she is.[162]
[160] Exhibit R6, STB3.
[161] Mr Borenstein’s oral evidence.
[162] In closing submissions, and despite the strenuous objections to their admission, the Applicant relied on Exhibits R3, R5 and R6 in support of the proposition that Ms P may try to limit the Applicant’s contact with Child A and Child B.
I accept that the Applicant is genuinely concerned about his children and wishes to be a part of their lives, but his oral evidence, summarised at paragraph 136 above, demonstrates that he lacks any real insight into the impact of his conduct on them. This is a significant barrier to a strongly positive finding that their interests lie with him remaining in Australia.
Ultimately, I do not accept the Minister’s submission that the best interests of the children weigh against revocation. This issue is finely balanced.
I consider that the best interests of Child A and Child B weigh moderately in favour of revocation.
Ms S’s children
Ms S has three children. The eldest is a daughter aged 15 who lives full-time with her mother, and she has two boys aged 12 and 10 years who live 1 week with her and 1 week with their father. Ms S’s children speak to the Applicant by telephone or video-call about every second day on the weeks they are with her, play online games with him, and are said to get on very well. I accept this.
Ms S’s relationship with the Applicant has been on-going since September 2024, during which time he has been in detention, mainly in Western Australia. Ms S lives in Sydney. The children have never met the Applicant in person. Whilst they may get on with him well in the context of telephone calls and playing video games, the children have a father who they see regularly and they have no real, meaningful, long-term relationship with the Applicant. Furthermore, I am conscious that there is a possibility that they will be exposed to family violence if the Applicant lives with Ms S upon his release into the community, which is their plan.
Ms S’s evidence in respect to the children included the following:
[The Applicant] will live with me in [suburb] upon his release. However, we plan to move into a suitable residence for our five children as soon as possible in April 2025. [The Applicant] has a loving relationship with my three children, participating in Christmas morning via Facetime, gift-giving, and online games. It would be devastating for [him] and [my three children] should he not to be with us in person if he were deported, as it would shatter our hopes and future together. We believe that creating a loving household with all our children will be incredibly positive for our entire family.[163]
[163] Exhibit A13, 1.
Ms S has not met the Applicant’s children. The idea that Ms S and the Applicant would move into a house with his two sons and her three children is far-fetched and unrealistic given the Applicant has no contact with his children, and it remains to be seen if he is able to resume contact, much less have them move in to live with him, through his unresolved family law proceedings.
Ms S also gives her opinion as to the emotional distress and other disadvantage both her children and his will face if their parent is deported. I place no weight on these statements of opinion. Ms S is not a qualified expert in any relevant area,[164] nor has she met his children, and the Applicant is not a parent to her children.
[164] She works in information technology.
During cross-examination Ms S said that her children’s father does not know of the plans to cohabitate with ‘all 5 children’.[165] Ms S’s evidence was in effect that her children’s father would have to just get used to it, because he had re-partnered. In respect to the relationship between her and the children’s father, she said he was aware of her relationship with the Applicant ‘but things aren’t great between us’. The Applicant being a part of the children’s homelife will obviously have its pressures.
[165] Exhibit A7 at [16]; Exhibit A13, 1.
I consider that the best interests of the three children of Ms S weigh slightly against revocation.
Conclusion on best interests of minor children
Having had separate regard to the best interests of the Applicant’s two children, and the best interests of Ms S’s three children, I have concluded that that this consideration weighs moderately in favour of revocation.
Expectations of the Australian Community
I am required to consider the expectations of the Australian community as set out in Direction 110 at [8.5]. The consideration of this question, as with the others, is done against the background of the principles set out in Direction 110 at [5.2] and specifically in this case those matters set out in [5.2(2)], [5.2(3)] and [5.2(4)].
I have dealt with the risk to the community if the Applicant were to reoffend earlier in my reasons. I came to the view that the Applicant poses a risk of harm to the Australian community given his offending history and the issues regarding his access to ADHD treatment. In my view the risk of harm is unacceptable.
I also have regard to the matters set out in Direction 110 at [8.5(2)(a) and (c)], which are clearly the types of offences most of the Applicant’s offending has been. That is, acts of family violence, and violence against women, and the children who have been a witness to his family violence. Notably, his family violence comprises more than actual physical violence, extending to stalking, threats, name-calling, and property-damage.
I also consider that the nature of his non-violent offending, that is his conviction for ‘act with intent to influence witness’ is very serious and comes within the general community expectation set out in the chapeau to [8.5(2)], being offending of a nature that the Australian community would expect the person should not be granted or continue to hold a visa. Both this offence and his repeated history of breaching ADV Orders, meant to protect his victims from his behaviour, point to a fundamental lack of respect for the rule of law.
In my view, the safety of the Australian community is of paramount importance. I find that the expectations of the Australian community weighs strongly against revocation.
Other considerations
Legal consequences of decision under section 501 or 501CA
I am required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[166] There are no relevant non-refoulment obligations.
[166] Paragraph 9.1 of Direction 110.
This consideration also makes reference to the range of legal consequences of a decision not to revoke the Cancellation Decision. These legal consequences include:
(a)the Applicant’s unlawful status;
(b)becoming subject to detention and/or removal, pursuant to sections 189, 196, 197C and 198 of the Act;
(c)the refusal of other visa applications and cancellation of other visas, pursuant to section 501F of the Act;
(d)a prohibition on applying for other visas, pursuant to section 501E of the Act; and
(e)periods of exclusion and special return criteria may apply, pursuant to section 503 of the Act and special return criteria 5001 of the Migration Regulations 1994 (Cth).
Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[167] Under s 189 of the Act, the Applicant must be detained and removed as soon as reasonably practicable under s 198.[168] The Applicant is currently in immigration detention.
[167] Section 15 of the Act.
[168] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful at [112]-[122].
The Applicant contends that this consideration is not relevant in this case.[169] The Respondent accepts that the applicant will be subject to indefinite exclusion from Australia by operation of the Special Return Criteria in cl 5001(c) of Schedule 5 to the Regulations, which is a relevant legal consequence that the Tribunal must take into account.[170] However, the Minister contends that this consideration should be afforded limited weight.[171]
[169] Applicant’s SFIC at [86].
[170] Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003, at [12]–[14].
[171] Respondent’s SFIC at [60].
In Fotu[172] I considered the submission that this consideration was irrelevant, made by both parties. I said at [100]–[101]:[173]
Both parties submit that as a result of there being no non-refoulment obligations, this consideration should be given neutral weight. In Singh v Minister for Immigration, Migrant Services and Multicultural Affairs [[2024] FCA 1273] Rangaiah J considered a similar submission which had been accepted by the Tribunal in that matter, and found that it reflected a misconstruction of section 501CA(4) of the Act. Furthermore, it is a failure to consider ‘the direct and immediate statutorily prescribed consequences of the decision in contemplation’. I acknowledge that the comments in Singh were in the context of the Tribunal not considering the legal consequences because a protection claim was a live issue, nonetheless, the proposition that jurisdictional error arises if I fail to consider the direct and immediate legal consequences of an adverse decision holds good. The parties’ submissions on this consideration are misguided.
Whilst I accept the removal and visa limitations which result from a decision not to revoke the cancellation of the visa are the intended consequences of the operation of section 501 of the Act, the consequences are harsh for a young man who has all his immediate and much of his extended family in Australia, and who has not been to New Zealand since the age of 4. His exclusion from Australia will prevent him from actively participating in the lives of his nieces and nephews, from assisting his parents as they age, from developing adult relationships with his siblings and parents, and most importantly from having the benefit of the guidance, support and role modelling of his family as he continues on the road to rehabilitation following his conviction and incarceration. This is of particular significance in light of the evidence that he has a lower than average intellectual capacity, and is by reason of that, vulnerable to being led astray.
[172] Fotu and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 45.
[173] Footnotes omitted.
Whilst the factual matrix in this matter is quite different from that in Fotu, the proposition is the same; removal will have profound consequences on the Applicant, Ms S, his children, and his friends. There is also the very real prospect that his removal may have an adverse impact on his family law proceedings.[174] In addition, his removal will impact the nature of the relationship he is able to develop with his sons, Child A and Child B, as they grow older.
[174] Exhibit A1, document 20.
These consequences should not be ignored. I accept the removal and visa limitations which result from a decision not to revoke the cancellation of the visa are an intended consequence of the operation of s 501, but the impact of that in this Applicant’s circumstances must be given proper consideration.
I find that this consideration carries moderate weight in favour of revocation of the Cancellation Decision.
Extent of impediments if removed
Paragraph 9.2 of Direction 110 provides that, taking into account the matters identified in sub-paragraphs 9.2(1)(a), (b) and (c), I must consider the extent to which the Applicant would face impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. The matters identified under sub-paragraph 9.2(1) are:
(a)the Applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to the Applicant in their country.
The Applicant accepts that he would not have any ‘substantial language barriers’ if returned to the United Kingdom.[175] Given he lived in the UK until he was a young adult, and has returned two or three times since settling in Australia in 2007, I do not regard him as having any language or cultural barriers.
[175] Applicant’s SFIC at [88].
The Applicant says that he requires medical and psychological support and assistance, and removing him from Australia would result in serious health challenges.[176] I accept that removal will place some stress on the Applicant’s health issues, at least in the immediate term. His health issues include that he will require shoulder surgery at some stage,[177] and he will need to have his potential ADHD assessed, diagnosed, and potentially treated. In his oral evidence he said his mental health is the main issue and he may become suicidal. He was concerned that he may be unmedicated for at least 3 months. He also said that his history of alcohol abuse may become an issue in the UK, and that he would require support for that. However, the Applicant would be able to access the health system in the UK in the same manner as all other UK citizens, and I have no reason to find that UK standards of care, and the availability of treatment, are any lower than what he could access in Australia.
[176] Applicant’s SFIC at [89] – [92].
[177] Exhibit A1, document 5.
The Applicant has a father and brother who live in the United Kingdom. He is apparently unable to obtain accommodation or financial support from them; the Applicant says neither are in a position to support him.[178] Ms S said that she would be able to provide some financial support for him, even if he were to be removed. Ms S also said that the Applicant remains in touch with his father and brother and that she has had contact with his father. She also said that the Applicant does not get on with his father and brother. I accept that there are tensions with his family.
[178] Applicant’s SFIC at [93]–[94]; Exhibit A1, document 12, letter of support from the Applicant’s father dated 1 August 2022.
I was provided with a statutory declaration from the Applicant’s father made in 2022, prior to the 2022 revocation, which provides some background as to the Applicant’s family life in the UK and which confirms that his father cannot offer him accommodation.[179] I accept that he cannot live with or rely on his father or brother for financial support. He is, however, relatively young at 44 years of age, he has business and technical skills, has apparently been successful in his career to date and has been described as entrepreneurial.[180] I do not accept that he will necessarily need to return to manual labour to support himself, which he says he is unable to do as a result of his shoulder injury.
[179] Exhibit A1, document 12, letter of support from the Applicant’s father dated 1 August 2022.
[180] See letters of support at Exhibit A1, document 12; Exhibit A2, documents 16-17.
I find that the extent of impediments if removed weighs slightly in favour of revocation in the Applicant’s circumstances.
Impact on Australian business interests
The Applicant contends that this is a ‘somewhat relevant’ consideration.[181]
[181] Applicant’s SFIC at [99].
The Applicant said that he and Ms S are ‘working on re-establishing’ his business, and creating a new business together if the Cancellation Decision is revoked.[182] He says he has a tender in relation to expanding a waterproofing business into Sydney, and would hire 20 workers to complete this project, claiming that if the Cancellation Decision were not revoked it would ‘compromise the delivery of a major project, or delivery of an important service in Australia’.[183]
[182] Exhibit A7 at [16].
[183] Applicant’s SFIC at [99], quoting paragraph 9.1 of Direction 110.
The Applicant does have a business name registered in his name and an ABN. There is some evidence that an opportunity might exist, comprising a letter from the Applicant to someone called Nick, dated 7 November 2024,[184] essentially expressing interest in an unknown potential project. The Applicant’s oral evidence was to the effect that there was a good opportunity with a business which was apparently based in Melbourne, and which was keen to break into Sydney. As I understand it, the work would involve waterproofing and specialised concrete repair work in the walls of tunnels, which is similar to work the Applicant has done previously, and for which he is qualified. There is however no evidence from the Melbourne-based business, nor any evidence as to its intentions to pursue a business opportunity with the Applicant.
[184] Exhibit A1, document 11.2.
I do not have sufficient evidence on which to make any finding in favour of this being a realistic or even readily available opportunity. In any event, the Applicant’s ability to pursue this does not fit within the boundaries of Direction 110 at [9.3].
During the course of his evidence the Applicant’s position in relation to his future business plans varied. On the one hand he was ‘ready to go’ with the waterproofing business, on the other he said he thought he would pursue the structural and building restoration business with Ms S. These plans do not appear to be anything more developed than ideas at this stage.
Ms S gave no detailed evidence regarding any future business with the Applicant, saying no more than ‘[h]e has shared his future ventures with me, and we are currently deep in business planning for a partnership enterprise’.[185] I note Ms S has full-time employment in information technology with a large organisation, and three children whom she shares with their father and who live with her for at least part of the time. Her income is necessary to support not only her family, but the Applicant’s rehabilitation and his health needs. There was no explanation offered as to how the development of the business would fit with her employment and parenting obligations.
[185] Exhibit A13, 1.
The prospective business plans of the Applicant, be they with the Melbourne-based business in the waterproofing and concreting field, or with Ms S in the structural and restoration field, are in their infancy. They are not sufficiently advanced for me to make a finding that Australian business would be adversely affected by the Applicant not having his visa returned.
Therefore, I do not believe that the impact on Australian businesses is a relevant consideration in the Applicant’s circumstances.
CONCLUSION
I have found the Applicant does not pass the character test under s 501 of the Act.
I have therefore considered if there is another reason why the Cancellation Decision should be revoked, giving regard to the considerations set out in Direction 110, and weighing the various considerations in accordance with paragraph [7] of the Direction, and in accordance with the authorities which bind my decision making.
In determining the weight to be applied to each individual consideration, I have considered all the primary and other relevant considerations and weighed them in light of the evidence and according to the guidance provided by Direction 110.
Of the primary considerations, I find:
(a)the protection of the Australian community, the expectations of the Australian community and family violence all weigh strongly against revocation;
(b)the Applicant’s ties to Australia weighs moderately in favour of revocation; and
(c)the best interests of minor children weighs moderately in favour of revocation.
In relation to the other considerations relevant to this case, I find:
(a)the legal consequences of the decision weighs moderately in favour of revocation; and
(b)the extent of impediments if removed weighs slightly in favour of revocation.
Paragraph 7(2) of Direction 110 states that primary considerations should generally be given greater weight than the other considerations. It also provides that the protection of the Australian community is generally to be given greater weight than the other primary considerations, which is a principle that I find should apply in this case.
Having weighed the considerations in favour of the revocation of the cancellation of the Applicant’s visa and the considerations against revocation, I conclude that the primary considerations of protection of the Australian community, family violence and the expectations of the Australian community outweigh those primary considerations which weigh in favour of revocation, being the strength, nature and duration of ties to Australia, and interests of the minor children, and the other considerations of the legal consequences of non-revocation and the extent of impediments if the Applicant is removed.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction 110, I am not satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked.
DECISION
The decision of the delegate of the Minister dated 18 December 2024 not to revoke the cancellation of the Applicant’s Class BB Subclass 155 Resident Return visa under section 501CA(4) is affirmed.
I certify that the preceding one hundred and eighty five (185) paragraphs are a true copy of the reasons for the decision herein of Deputy President Clare Thompson SC
.............................[sgd]...............................
Associate
Dated: 31 March 2025
Date of hearing: 25 and 28 February, 4 March 2025 Counsel for the Applicant: Ms M Lewis Solicitors for the Applicant: Crossover Law Group Counsel for the Respondent: Ms C White Solicitors for the Respondent: Sparke Helmore ANNEXURE A – SUMMARY OF CONVICTIONS
| Offence date | Court date | Offence | Sentence |
| 11.07.2021 - 12.07.2021 | 06.11.2023 21.09.2023 | Contravene prohibition/restriction in AVO (Domestic) | 24 months’ imprisonment |
| 21.03.2023 | 06.11.2023 21.09.2023 | Common assault (DV)-T2 | |
| 21.03.2023 | 06.11.2023 21.09.2023 | Stalk/intimidate intend fear physical etc harm (domestic)-T2 | |
| 23.03.2023 - 03.04.2023 | 06.11.2023 21.09.2023 | Act with intent to influence witness-T1 | |
| 01.04.2023 | 06.11.2023 21.09.2023 | Contravene prohibition/restriction in AVO (Domestic) | |
| 11.07.2021 - 12.07.2021 | 13.07.2022 | Assault occasioning actual bodily harm (DV)-T2 | 12 months’ imprisonment |
| 11.07.2021 - 12.07.2021 | 13.07.2022 | Contravene prohibition/restriction in AVO (Domestic) | Two-year CCO |
| 28.03.2020 | 25.01.2021 | Common assault (DV)-T2 | 12-month ICO 27 July 2021 ICO was revoked and the Applicant was imprisoned for the remainder of his sentence |
| 17.05.2020 | 25.01.2021 | Common assault (DV)-T2 | |
| 17.05.2020 | 25.01.2021 | Common assault (DV)-T2 | |
| 28.03.2020 | 25.01.2021 | Contravene prohibition/restriction in AVO (Domestic) | |
| 16.05.2020 - 17.05.2020 | 25.01.2021 | Contravene prohibition/restriction in AVO (Domestic) | |
| 16.05.2020 - 17.05.2020 | 25.01.2021 | Contravene prohibition/restriction in AVO (Domestic) | |
| 01.08.2020 - 04.08.2020 | 25.01.2021 | Contravene prohibition/restriction in AVO (Domestic) | |
| 28.03.2020 | 25.01.2021 | Attempt stalk/intimidate intend fear of harm (domestic)-T2 | |
| 17.05.2020 | 25.01.2021 | Stalk/intimidate intend fear physical etc harm (domestic)-T2 | |
| 17.05.2020 | 25.01.2021 | Destroy or damage property (DV) | |
| 22.01.2018 | 03.07.2018 | Common assault-T2 (s 10 Crimes (Sentencing Procedure) Act 1999 (NSW)– no conviction recorded) | 18 months’ good behaviour bond |
| N/A | 04.07.2006 | Offences against the person – battery | £150 |
| N/A | 04.07.2006 | Offences relating to Police/Courts/Prisons –failing to surrender to custody at appointed time | £50 |
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