Nunez and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 809

Nunez and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 809 (22 April 2024)
Division:                  GENERAL DIVISION
File Number(s):2024/0657
Re:JORGE FRANCISCO MURILLO NUNEZ
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Antoinette Younes
Date:22 April 2024
Place:Sydney

The Tribunal affirms the decision under review.
.........[SGD]...............................................................
Deputy President Antoinette Younes
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why mandatory visa cancellation should be revoked – Ministerial Direction No.99 – protection of Australian community – family violence – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – extent of impediments if removed – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
GBV18 v Minister for Home Affairs [2020] FCAFC 17
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580
Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Nepata v Minister for Home Affairs [2019] FCA 1197
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 802
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
SECONDARY MATERIALS
Direction No.99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Deputy President Antoinette Younes
22 April 2024
BACKGROUND

The Applicant was born in Nicaragua on 5 February 1966.[1] On 26 September 1990, at the age of 24 years, he arrived in Australia. He has not departed Australia since that time.
[1] Ex 6, 63.
On 4 August 2023 and subsequent to a sentence of imprisonment, the Applicant’s Class AO, Subclass 806 Family visa (the Applicant’s visa) was mandatorily cancelled pursuant to section 501(3A) of the Migration Act 1958 (Cth) (the Act).
The Applicant made representations to the Minister requesting revocation of the cancellation decision. On 25 January 2024, the delegate of the Minister decided not to revoke the visa cancellation.[2]
[2] Ex 6, 12.
On the 6 February 2024, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision.[3]
[3] Ex 6, 1-8.
LEGISLATION
Section 501(3A) of the Act compels the Respondent to cancel a visa in certain circumstances:
(3A)     The Minister must cancel a visa that has been granted to a person if:
(a)    the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; and
(b)    the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record.’
Section 501(7) of the Act provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i)been found by a court to not be fit to plead, in relation to an offence; and
(ii)the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)as a result, the person has been detained in a facility or institution.
Section 501CA of the Act applies if the Respondent makes a decision under section 501(3A) of the Act to cancel a visa that has been granted to a person.
Section 501CA(4) provides:
(4) TheMinister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
MINISTERIAL DIRECTION NO. 99
The Respondent is empowered by section 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. Except for the Respondent acting personally, the Direction must be applied by all decision-makers, such as the Respondent’s delegates and the Tribunal.[4]
[4] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 [4].
On 23 January 2023, the Respondent signed Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 99). The Direction commenced on 3 March 2023 and revoked the previous Direction 90.
The preamble in Direction No 99 sets out the objectives[5] and the overarching principles[6] that provide the framework within which decision-makers should approach their task under sections 501 and 501CA.
[5] Direction 99 [5.1].
[6] Direction 99 [5.2].
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
A decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
(1)Protection of the Australian community from criminal or other serious conduct;
(2)Whether the conduct engaged in constituted family violence;
(3)The strength, nature and duration of ties to Australia;
(4)The best interests of minor children in Australia; and
(5)Expectations of the Australian community.
Paragraph 9 of the Direction identifies the non-exhaustive list of other considerations:
a)Legal consequences of the decision;
b)Extent of impediments if removed;
c)Impact on victims; and
d)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, “information and evidence from independent and authoritative sources should be given appropriate weight.” Paragraph 7(2) provides that primary considerations “should generally be given greater weight than the other considerations.”
MATERIAL BEFORE THE TRIBUNAL
The Tribunal has the following material before it:
·The Applicant’s Statement of Facts, Issues and Contentions (SFIC), filed on 22 March 2024 (Exhibit 1);
·The Respondent’s SFIC, filed on 26 March 2024 (Exhibit 2);
·Applicant’s Tender Bundle, filed on 22 March 2024 (Exhibit 3);
·Letter of Support from Cruz Murillo, filed on 3 April 2024 (Exhibit 4);
·Respondent’s Tender Bundle, filed on 26 March 2024 (Exhibit 5);
·G-Documents, filed on 19 February 2024 (Exhibit 6); and
·Letter of support from Mr Michael Davis, filed on 4 April 2024 (Exhibit 7).
Two witnesses gave evidence in the course of the hearing, namely the Applicant’s son and the Applicant’s mother.
FINDINGS AND REASONS
The character test is defined in s 501(6) of the Act. The test is generally concerned with the protection of the Australian community from the risk of harm.
A person does not pass the character test only if one of the paragraphs in s 501(6) applies to that person. In this case, the delegate determined that the Applicant did not meet the character test under s 501(6)(a) because the Applicant has a 'substantial criminal record' on the basis of having been sentenced to a term of imprisonment of 12 months or more 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 a Territory.
It is not in dispute that the Applicant does not meet the character test and failure to meet the character test arises as a matter of law.[7] On 4 August 2023, the Applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Act. At that date, the Applicant was serving the aggregate sentence of seven months’ imprisonment.[8] The visa was mandatorily cancelled because the Applicant did not pass the character test as a result of the sentence of 12 months’ imprisonment for the 2002 driving convictions, and at the time of the cancellation, he was serving a sentence of imprisonment on a full-time basis for the 2023 family violence offences.
[7] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 [63].
[8] Ex 6, 105.
The issue before the Tribunal is whether there is another reason the cancellation of the Applicant’s visa should be revoked.
The purpose of the Direction is to guide decision-makers exercising powers under the Act. Delegates and the Tribunal must generally follow the Minister’s Direction. The Direction identifies certain principles which provide a framework within which decision-makers should approach their task.[9] It prescribes relevant considerations which must be taken into account. It provides guidance only as to the manner in which they are to be balanced.
[9] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [80]–[81]. The Court was discussing Direction No 55, but the reasoning applies equally to Direction 99.
The Direction does not determine rules of general application, but gives directions to the decision-maker, including the Tribunal, as to the policy to be applied in exercising the power conferred by ss 501 and 501CA of the Act. The Direction does not derogate from the Tribunal’s duty to reach the correct or preferable decision in the particular case before it; the Direction has that end as its purpose.[10]
[10] Uelese v Minister for Immigration and Border Protection [2016] FCA 348 [50].
While decision-makers are bound to take into account certain considerations, they are not limited to those set out in the Direction.[11] The Direction specifies the relative, but not the actual, weight to be given to those considerations. The Tribunal is obliged to examine the merits of the case and decide for itself.[12] The weight to be given to any particular matter is a matter for the decision-maker and cannot be the subject of some formulaic approach.[13] Phrases such as “should generally be given greater weight than the other considerations” and “one or more primary considerations may outweigh other primary considerations” have been interpreted as provisions that are intended to provide guidance to the decision-maker as to how the balancing exercise required by the Direction should be approached. These phrases leave it open to the decision-maker to adopt a different approach in the individual case.[14] It is not the content of the Direction which determines the outcome of the decision, but rather it is the application by a decision-maker to the evidence and material in an individual case.[15]
THE PRIMARY CONSIDERATIONS
[11] GBV18 v Minister for Home Affairs [2020] FCAFC 17.
[12] See Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [21].
[13] Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 [127].
[14] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [83].
[15] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 [78].
Protection of the Australian community from criminal or other serious conduct
The Direction contemplates that decision-makers should have particular regard to the principle that “entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that 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.”[16] It indicates that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.[17]
[16] Direction 99 [8.1(1)].
[17] Direction 99 [8.1(2)].
Whether there is a risk that a person would engage in specified conduct requires an evaluative judgement by the decision-maker.[18]
The seriousness of the Applicant’s conduct
[18] See Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 [2]. The Court considered s 501(1), but the reasoning also applies to ss 501(2) and 501(3A).
The Applicant’s criminal history
The Applicant’s criminal history is as follows:[19]
[19] Ex 6, 32-39.
·On 26 August 1992, just two years after arriving in Australia, the Applicant was convicted of his first set of offences, namely failing to stop after an accident, driving whilst unlicensed, and driving under the influence. He was fined and disqualified for 2 years.
·Between 1996 and 2001, he was convicted of multiple offences, including being an unaccompanied learner driver, driving whilst disqualified, driving an unregistered vehicle, and exceeding PCA. He incurred fines, licence disqualifications, community service orders, periodic detention orders, sentences of three-months’ imprisonment, and a suspended sentence of two-years’ imprisonment for further driving offences.
·On 20 February 2002, the Applicant was convicted of:
(i)Driving while disqualified from holding a licence for which he was sentenced to 16-months’ imprisonment.
(ii)Possessing goods suspected being stolen (not m/v) for which he was sentenced six-months’ imprisonment.
(iii)Drive conveyance taken w/o consent of owner-T2 for which he was sentenced to 12-months’ imprisonment.
(iv)Negligent driving (not occasioning death/gbh) for which he received a fine.
(v)Not give particulars to other driver for which he received a fine.
·On 21 March 2002, the Applicant was convicted of Not comply with s 12 suspended sentence good behaviour bond and he was sentenced to 16-months’ imprisonment.
·On appeal from the February and March 2002 convictions, on 19 June 2002, the District Court of New South Wales confirmed all convictions but varied the length of the imprisonment sentences, namely:
a.    12-months’ imprisonment for drive while disqualified from holding a licence;
b.    Four-months’ imprisonment for drive conveyance taken w/o consent of owner; and
c.     Four-months’ imprisonment for Not comply with s 12 suspended sentence good behaviour bond.
·In 2009, 2010, 2015 and 2018, the Applicant was convicted of multiple offences including negligent driving, driving whilst disqualified, driving whilst under the influence of illicit drugs, stalk/intimidate intend fear of physical/mental harm. On 2 December 2009, he was convicted of one count of Contravene prohibition/restriction in AVO (Domestic) and fined $500. On 28 November 2009, the Applicant breached an Apprehended Domestic Violence Order (AVO) put in place 11 days earlier to protect his de factor partner and the mother of his children, Ms L.[20]
·On 3 September 2021, the Applicant was convicted of two charges of Common assault (DV)-T2 for which he was fined, sentenced to a 12-month community corrections order (CCO) and directed to attend domestic violence and mental health related counselling.
·On 13 December 2021, the Applicant was convicted and fined for Possess prohibited drug.
·On 10 March 2022, the Applicant was convicted of two counts of Stalk/intimidate intend fear physical etc harm (personal)-T2, one count of Contravene prohibition/restriction in AVO (Domestic), and one count of Common assault (DV)-T2 for which he received an aggregate eight-month sentence of imprisonment. One count of Stalk/intimidate intend fear physical etc harm (personal)-T2 related to the Applicant threatening to kill his mother, causing fear and leading to an AVO for her protection. On 21 April 2022, the District Court confirmed the sentence for those convictions.
·On 7 March 2023, the Applicant was convicted of Stalk/intimidate intend fear physical etc harm (domestic)-T2, Contravene prohibition/restriction in AVO (Domestic) (three counts) and Destroy or damage property (DV). He was sentenced to an 18-month CCO.
·On 18 May 2023, the Applicant was convicted of use carriage service to menace/harass/offend and sentenced to two months’ imprisonment. The other family violence convictions were called up for breach of the CCO. The Applicant was resentenced to an aggregate term of imprisonment of seven months. On 14 August 2023, the District Court of New South Wales allowed a severity appeal against the aggregate term of imprisonment imposed on 18 May 2023.[21] The sentence was set aside and the Court imposed an aggregate term of six-months’ imprisonment to be served by way of Intensive Corrections Order (ICO).
[20] Ex 5, 108.
[21] Ex 5, 32-34.

In relation to the offences that occurred on 24 December 2001 (conviction on 20 February 2002), the NSW Police Facts Sheet[22] records that the Applicant was driving a car which had been confirmed to be stolen. The car collided with another. The Applicant and the co-offender got out and ran away from the car. Later the Applicant was placed under arrest and he refused to answer any questions. He was searched and the police found property in the name of another person. The Applicant was convicted of:
a.    Driving while disqualified from holding a licence for which he was sentenced to a term of imprisonment of 16 months.
b.    Possessing goods suspected being stolen (not m/v) for which he was sentenced six-months’ imprisonment.
c.     Drive conveyance taken w/o consent of owner-T2 for which he was sentenced to 12-months’ imprisonment.
d.    Negligent driving (not occasioning death/gbh) for which he received a fine.
e.    Not give particulars to other driver for which he received a fine.
[22] Ex 6, 48-50.
In the course of the hearing, the Applicant challenged some aspects of the Facts Sheet, such as that he did not know that the car was stolen.
Relevantly, in HZCP v MIBP,[23] the Court expressed the following principles:
(1)Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2)Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.[24]
[23] HZCP v MIBP [2018] FCA 1803.
[24] HZCP v MIBP [2018] FCA 1803, [78].
It is evident that in certain circumstances, it is possible to impugn the essential facts underlying the conviction, however there is a heavy onus.[25] The Applicant’s visa was mandatorily cancelled because among other things, the Applicant did not pass the character test as a result of the sentence of 12 months’ imprisonment for the 2002 driving convictions. In such a case, the Applicant cannot challenge or impugn the essential facts of the conviction.
[25] See HZCP v MIBP [2018] FCA 1803.
In relation to the offences that took place in December 2009, the NSW Police Facts Sheet[26] refers to the Interim AVO that was ordered on 17 November 2009 with Ms L being the protected person. The Police Facts Sheet shows that between 19 and 20 December 2009, Ms L, who was at home with the couple’s two children then aged 6 and 4 received several text messages and multiple voicemails from the Applicant, in breach of the AVO. When Ms L telephoned the Applicant, he threatened to “fix her up” and rape her if she declined being sexually intimate with him. In fear of the Applicant coming to her home, Ms L informed a neighbour and went to the police. The Applicant was noted to be “drug dependant [sic] and currently taking ice. This makes the accused irrational and unpredictable”. Ms L was reported to be “extremely afraid and has sought refuge at her sister’s house currently as she is too afraid to return home.”[27]
[26] Ex 5, 107-111.
[27] Ex 5, 110.
On 15 June 2010, the Applicant committed the offences of breach of bail application and contravention prohibition/restriction in AVO (domestic).[28] In summary, the NSW Police Facts Sheet[29] indicates that on that evening, Ms L was at home when the Applicant who was subject to bail conditions imposed on 8 June 2010, including not to approach Ms L, assault, harass, or go within 100 meters of her premises, was outside Ms L’s home and then followed her inside. She asked him to leave but he refused. Eventually he walked out saying to her “Don’t think I care that we’re outside. I will hurt you. Do you want me to carry on like I did last time?”.
[28] Ex 5, 10.
[29] Ex 5, 112-115.
In relation to the convictions on 3 September 2021 of the two counts of common assault (DV)-T2 for which he was fined, sentenced to a 12-month CCO and directed to attend domestic violence and mental health related counselling, the Police Facts Sheet[30] shows that on 13 June 2021, the Applicant physically assaulted both Ms L, with whom he had an ‘on and off’ relationship for 20 years, and their daughter, G who was 15 years old at the time. The Applicant grabbed Ms L by the hair and said to her “Is this how you like it, this is how they do you?”. When Ms L did not answer, the Applicant grabbed her by the hair again and slapped her on the face causing her to feel minor pain to the cheek. The daughter, G observed the incident and said to the Applicant “Don’t touch her”. The Applicant pushed his daughter. Whilst outside, he grabbed Ms L’s hair again. The couple’s older daughter, C, was a witness to the assaults. At the time, the Applicant was reported to be suffering from psychosis, and he believed that Ms L was in a sex cult and that his children were not his.
[30] Ex 5, 71-73.
On 3 March 2022, there was an incident relating to the Applicant’s mother, Ms M (born in December 1945). The NSW Police Facts Sheet[31] indicates that the Applicant demanded money from his mother but she refused. He became emotional and started yelling at her and said “Lend me the car or I am going to slash the fucking tyres”. She refused and he said “I am going to fucking kill you and I won’t go to prison because I will claim I am crazy”. Ms M was “terrified during the incident, fearing for her life”, and she called the police.
[31] Ex 5, 94-96.
A week after the above incident, on 9 March 2022, the NSW Police Facts Sheet[32] shows that at about 5.20pm, the Applicant yelled at Ms L “I’m going to kill you” which was heard by the daughter G. The Applicant grabbed Ms L by the hair, and pulled at it. Ms L was heard to be in pain telling the Applicant to let go of her.
[32] Ex 5, 97-100.
On 7 March 2023, the Applicant was convicted of Stalk/intimidate intend fear physical etc harm (domestic)-T2, Contravene prohibition/restriction in AVO (Domestic) (three counts) and Destroy or damage property (DV) and sentenced to an 18-month CCO. The NSW Police Facts Sheet[33] records that on 21 February 2023, the Applicant’s mother called Ms L asking about the Applicant’s whereabouts but ended the call when she heard the Applicant swearing at her in the background, calling her “old fucking lady”. Later that day, the Applicant entered his mother’s home, damaged her door and caused her to fear for her safety. The April 2022 AVO to protect his mother was still in effect.
[33] Ex 6, 40-44.
The NSW Police Facts Sheet[34] records that on 15 May 2023, the Applicant called Ms L’s mobile phone 127 times, which led to the conviction on 18 May 2023 of use carriage service to menace/harass/offend. The Applicant was sentenced to two-months’ imprisonment, and the 2023 family violence convictions were called up for breach of the CCO and he was resentenced to an aggregate term of imprisonment of seven months.[35] On 14 August 2023, the District Court allowed a severity appeal against the aggregate term of imprisonment imposed on 18 May 2023.[36] That sentence was set aside and the Court imposed an aggregate term of six-months’ imprisonment to be served by way of ICO.
[34] Ex 5, 38-41.
[35] Ex 6, 33-34.
[36] Ex 5, 33-34.
During the first day of the hearing, and whilst under cross-examination, the Applicant became agitated and stated that he no longer wished to continue with the matter. He stated that he would return to Nicaragua. He walked out of the hearing room without the Tribunal being able to clarify his intentions. The Tribunal took a short adjournment to give the Applicant an opportunity to reconsider his position but the Applicant did not return. On the same day, the Tribunal sent to the Applicant an email seeking clarification and offering options. The Applicant appeared on the second day of the hearing reiterating that he accepts all but he declined to give any further evidence, or be cross-examined. Although the Respondent in closing submissions suggested that the Applicant’s behaviour is indicative of lack of insight, the Tribunal is not satisfied that was the case. The Tribunal is satisfied on the evidence that although the cross-examination was sensitive and respectful, there could be multiple explanations for the Applicant’s conduct, including not wishing to face the magnitude of his criminal conduct. In any event, the Tribunal has not drawn any adverse conclusions on the basis of the Applicant’s conduct during the hearing.
The Tribunal is satisfied that the Applicant’s offending is very serious. As outlined above, the Applicant’s offending includes violent crimes against female members of his family, including his now former partner, his child and his elderly mother. In the SFIC, the Applicant accepted the seriousness of his conduct.[37] The seriousness of the Applicant’s criminal offending has resulted in sentences of imprisonment. Although there were intermittent periods of non-offending, the offending has been frequent and over the course of almost 30 years. The Applicant claims that he has not provided misleading information to the Department, but there is evidence that this is not the case. In the personal circumstances form[38] and as raised during the hearing, the Applicant did not disclose that he has a brother living in Nicaragua, and he provided incorrect details about his daughter’s (G) birthdate, claiming that it was 2007, not 2005, which would not make her a minor as listed in the Form. His explanations of being confused and stressed are not persuasive.
[37] Ex 1, [18].
[38] Ex 6, 63-81.
The Applicant’s violent offences against his family have become increasingly serious over time despite the imposition of AVOs and other Court-imposed measures. He has caused fear to the victims, including his elderly mother, and child. There were multiple incidents when the former partner, mother, and child experienced fear for their safety. The Tribunal considers violence against women, children, and the elderly to be of significant seriousness. As a parent, he has a responsibility to ensure the safety of his children but one of them became the victim of his criminal conduct. His elderly mother who is also a victim was vulnerable, and she was afraid of him.
Furthermore, the Applicant has been convicted of significant driving offences, demonstrating disregard for road rules and traffic laws. The Tribunal views seriously driving offences of the kind of which the Applicant has been convicted, as reflected in the above sentences.
The Tribunal gives significant weight to the Court’s imposition of a custodial sentence, which is an objective reflection of the seriousness of the Applicant’s offending. The Tribunal views a term of imprisonment as the last resort in the sentencing hierarchy.
For those reasons and on balance, the Tribunal is satisfied that the nature and seriousness of the Applicant’s criminal offending weigh heavily against revocation.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Direction states that decision-makers must have regard to the following considerations cumulatively:
a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the noncitizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c)    where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The Direction contemplates that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[39] In some circumstances, it may be permissible to conclude that any type of continued offending increases the risk of further violent offending.[40] The Tribunal needs to consider the likelihood and consequences of further offending.[41]
[39] Direction 99 [8.1.2(1)].
[40] Nepata v Minister for Home Affairs [2019] FCA 1197 [30].
[41] Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 [95].
In the Applicant's SFIC,[42] it was contended that the Applicant engaging in any further criminal conduct is not an unacceptable risk to the community.
[42] Ex 1, [21].
The Respondent argued that the Applicant’s contentions should not be accepted and that any risk of reoffending is unacceptable.[43]
[43] Ex 2, [42].
In the SFIC[44] and in oral evidence, the Applicant contended that factors which would reduce the risk of reoffending include his maturity (having turned 58 in February 2024), being drug free, active engagement in medical treatment, seeing a Drug and Alcohol Counsellor, a psychologist and psychiatrist, and commencing the SMART Recovery program in September 2023, while in detention.
[44] Ex 1, [21].
The Tribunal accepts that the Applicant has attended sessions of the SMART Recovery program,[45] and that he has been drug free, as reflected in the IHMS records. It is noteworthy that a Drug and Alcohol Counsellor observed in her IHMS records dated 21 November 2023 that the Applicant had “expressed regret and remorse as he acknowledged the harm that the offences he committed, caused his ex-wife and children. Jorge stated he plans to continue rehabilitating and being a better version of himself by attending SMART Recovery workshops, D&A Counselling and enrolling into online courses via Universal class for Anger management, DV. Jorge stated once he is released, he will continue therapy with an external psychologist and enrol into a Mens behaviour change program to maintain his recovery and to ensure he does relapse/lapse to problematic behaviours”.[46]
[45] Ex 3, 2.
[46] Ex 3, 46.
The Applicant claims he has had schizophrenia. There is evidence that the Applicant has suffered from a ‘delusional disorder’,[47] but there is no conclusive evidence in the material before the Tribunal of a diagnosis of schizophrenia being made. The Drug and Alcohol Counsellor observed in her IHMS records dated 21 November 2023[48] that the Applicant was “polite, cooperative and engaged in conversation. Mood normal, affect reactive…thought processes were linear, logical, and goal orientated”. In consideration of the available evidence, the Tribunal is not satisfied that the Applicant suffers from schizophrenia but that he suffers from a ‘delusional disorder’. Moreover, on the evidence the Tribunal is satisfied that the Applicant suffers from physical conditions, including asthma and hepatitis C. Those matters will be discussed further when considering impediments to removal.
[47] E.g. Ex 5, 118, 121.
[48] Ex 3, 46.
In the SFIC, the Applicant contended that he has ongoing support from his mother,[49] which would be another protective factor. As outlined earlier, the Applicant’s mother gave evidence in support of the Applicant and she provided a support letter.[50] However, she is also one of the Applicant’s victims of his violent offending. He has caused her to fear for her safety. The Tribunal is reluctant to give much weight in those circumstances, given the complex family dynamics and the fear she might have. That said, the Tribunal accepts that the mother has intention to provide support for the Applicant but the Tribunal is cautious to conclude that the support would reduce the risk of re-offending. The history is that despite her support in the past, the Applicant has continued to commit violent offences, including against the mother.
[49] Ex 1, [21].
[50] Ex 3, 6-7.
The Tribunal accepts that the Applicant has participated in course work made available to him while detained at Villawood Detention Centre, including courses such as Positive Parenting Techniques, Drug and Alcohol Abuse, SMART Recovery, and Anger Management Techniques.[51]
[51] Ex 3, 1-5.
The Tribunal acknowledges the Applicant’s positive steps in addressing the drug and alcohol, mental health and other issues, as well as his intention to continue working on those challenges. However, there is insufficient evidence for the Tribunal to be satisfied that the Applicant has addressed the underlying factors contributing to his offending, including the drug and alcohol misuse, mental health issues, and difficult upbringing.[52] Moreover, most of the Applicant’s rehabilitation efforts appear to have been limited to an Alcohol and Drug Program in prison in 2002;[53] SMART Recovery sessions, and engagement with drug and alcohol sessions in 2023 and 2024. On the evidence, the Tribunal is not satisfied that those actions are indicative of substantive steps to mean that the risk of reoffending is minimal. It is also noteworthy that in 2001, the Applicant was convicted of Drive while disqualified from holding a licence and ordered to attend a drug or other counselling[54] yet in 2018, he was convicted of Drive vehicle, illicit drug present in blood etc – 1st off.[55] In 2010, a Pre-Sentence Report recommended that the Applicant engage in domestic violence counselling upon release from custody[56] but the Applicant continued to commit domestic violence offences on and off for many years. Those matters raise concerns about the authenticity of the Applicant’s intentions and stated commitment to rehabilitate, should he be released and his visa is reinstated.
[52] Ex 5, 118.
[53] Ex 5, 135.
[54] Ex 6, 38-39.
[55] Ex 6, 37.
[56] Ex 5, 118.
In essence however, the Applicant conceded that this aspect of the consideration weighs against revocation of the visa cancellation.[57]
[57] Ex 1, [22].
Overall, although the Tribunal is satisfied that the Applicant has engaged in steps towards rehabilitation, there is limited evidence to conclude that this has resulted in a tangible difference in the Applicant’s risk of reoffending. Moreover, it is difficult to see the impact, if any, of the courses undertaken by the Applicant on the risk of recidivism. What is evident is that the Applicant has significant issues including mental health and drug and alcohol which have been associated with his offending. The extent of the problem is longstanding.
The Tribunal is satisfied that the cumulative evidence supports a finding that the Applicant’s journey to recovery is ongoing and that there is still a considerable way to go, meaning that he presents an unacceptable risk. The Tribunal is satisfied that the cumulative evidence supports a conclusion that there is a risk of reoffending and given the seriousness of the offending, any risk is unacceptable.
For those reasons, the protection of the Australian community consideration weighs heavily against revocation of the visa cancellation decision.
Whether the conduct engaged in constituted family violence
The Direction refers to the Australian Government having “serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.”[58]
[58] Direction 99 [8.2(1)].
Family violence is defined by Direction 99 as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Direction 99 provides non-exhaustive examples of family violence, including assault, stalking, and intentionally damaging or destroying property.[59]
[59] Direction 99 [4(1)].

The Direction contemplates that in considering the seriousness of the family violence engaged in by the non-citizen, the factors that must be considered are:
·the frequency of the offending conduct;
·any trend of increasing seriousness;
·the cumulative effect of repeated acts of family violence;
·rehabilitation achieved at time of the decision since the person’s last known act of family violence (including the acceptance of responsibility, understanding of the impact of the behaviour on the victim/witness of that abuse (particularly children) and the efforts to address factors which contributed to the conduct); and
·whether the person has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement, or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour.[60]
[60] Direction 99 [8.2(3)].
Direction 99 defines ‘member of the person’s family’, for the purposes of the definition of family violence, as a person who has, or has had, an intimate personal relationship with the relevant person. The phrase should not be construed narrowly.[61]
[61] Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115 [124].
The Applicant’s conduct relates to family violence. The Applicant has been convicted of violent assaults against his now former partner, his mother and his child. The offences were committed against women with whom the Applicant had a personal relationship, and they relate to serious incidents of family violence. The Tribunal is satisfied that there is a trend of family violence, which is unacceptable. The family violence has caused fear to the victims, as well as humiliation, and potential psychological harm.
In the Applicant’s SFIC, it was conceded that this consideration weighs in favour of non-revocation.[62]
[62] Ex 1, [25].
The Tribunal views the Applicant’s family violence very seriously and as such this consideration weighs heavily against revocation.
The strength, nature and duration of ties to Australia
The Direction at paragraph 8.3(1) contemplates that decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. In considering a non-citizen’s ties to Australia, the Direction provides, among other things, that decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.[63]
[63] Direction 99 [8.3(2)].
Paragraph 8.3(4) of the Direction requires the Tribunal to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community and in doing so have regard to:
a) the length of time the non-citizen has resided in the Australian community, noting that:
(i)considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending;
(ii)more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii)less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant first arrived in Australia on 26 September 1990, at the age of 24 years. He did not spend his formative years in Australia. He also commenced offending within two years of his arrival.[64]
[64] Ex 6, 39.
In Australia, the Applicant has his mother, a brother, three biological children, an uncle, and cousins, all of whom he identified to be Australian citizens. He also identified other relatives including, an aunt, nieces/nephews, and cousins.[65]
[65] Ex 6, 75-76.
In the SFIC, it was noted that the Applicant’s ties to Australia are strong and he has a close relationship with his children. It was further noted that the Applicant has other ties to Australia, through his employment over the years, as a cleaner and a labourer.[66]
[66] Ex 1, [27].
The Applicant’s brother, Mr W provided a personal statement in support of the Applicant.[67] Among other things, Mr W noted that the Applicant has been treated unfairly by the authorities and that his removal would be devastating for family and friends who would be “torn apart”. Mr W gave evidence that the Applicant provides assistance to their elderly mother.
[67] Ex 3, 9.
There is a letter from the NSW Spanish and Latin American Association for Social Assistance[68] referring to the Applicant’s elderly mother whose health is deteriorating and needs the Applicant’s support. The Applicant’s mother also gave evidence about the Applicant’s assistance to her including lawn mowing and housework.
[68] Ex 3, 6-7.
The Applicant provided to the Tribunal a letter from Mr M Davis noting among other things, that he would like the Applicant to lead a small team of “furniture removals in the near future”.[69] It is noteworthy that Mr Davis indicated that the Applicant has been working with him as an “offsider” for two years. However, this is inconsistent with the information provided by the Applicant, which does not mention his employment with Mr Davis.[70] Mr Davis was not available to give evidence. In those circumstances, the Tribunal gives the letter of Mr Davis limited weight.
[69] Ex 7.
[70] Ex 6, 78.
The Tribunal accepts that the Applicant’s mother may experience emotional hardship should he be removed but this needs to be viewed in the context that she is one of his victims who up until very recently was protected by an AVO preventing the Applicant from contacting or approaching her.[71]
[71] Ex 6, 41.
In terms of the three children, only one is a minor and his interest is discussed later under the best interests of the child consideration but the Tribunal accepts that all the children represent a strong tie to Australia and that it is plausible that all the children would be impacted emotionally by the Applicant’s removal. The Tribunal notes that the Applicant’s adult children attended the hearing as support persons for the Applicant.
The Applicant identified several extended family members in Australia who may also be impacted if he is removed.
The Tribunal accepts that the Applicant has lived in Australia for over three decades, but as noted earlier, he did not spend his formative years in Australia and he commenced offending soon after arrival.[72] Through his employment, he has made some positive contribution to the Australian community.[73]
[72] See paragraph 8.3(4)(a)(iii).
[73] See, paragraph 8.3(4)(a)(ii).
On balance, the Tribunal gives this consideration some weight in favour of revocation.
The best interests of minor children in Australia
The Direction requires decision-makers to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.[74]
[74] Direction 99 [8.4(1)].
In considering the best interests of the child, the Direction states at paragraph 8.4(4) that the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Although the Applicant had identified two of his children to be minors,[75] as raised in the course of the hearing, the Applicant has one minor child, a son, who was born on 13 December 2013 and is an Australian citizen. The Applicant’s minor child provided a letter of support[76] outlining the positive relationship he has with the Applicant. He also gave evidence during the hearing. Relevantly, he gave evidence that he continues to visit the Applicant in detention.
[75] Ex 6, 71.
[76] Ex 4.
The Tribunal is satisfied that the best interests of the child would be served by the Applicant remaining in Australia, noting that the Applicant has played a role in the child’s life and the child appears to be very fond of his father. However, the Applicant’s former wife, Ms L and the child’s mother fulfils the parental role. The children live with their mother.[77]
[77] Ex 1, [30].
The Tribunal considers it appropriate to moderate the weight to be given to this consideration for a number of reasons. The Applicant is not fulfilling a parental role and even with all good intentions, it is speculative how a relationship with his son would be in the future. As discussed above, the Applicant has had a serious and longstanding drug and alcohol issue, as well as mental health challenges. How he will address those in the future, at this stage, is uncertain, although he claims to be committed to rehabilitation. The Tribunal is of the view that those issues present significant challenges for the Applicant in developing a positive parental relationship with his son.
The Applicant has a serious history of family violence towards females in the household including the son’s mother, Ms L, his sister and grandmother. In this context and given the unacceptable risk of reoffending, the Applicant’s ability to play a positive parental role is questionable. As concluded by the Tribunal and for the stated reasons, there is a risk of reoffending, which would not be in the best interests of the child; it is reasonable to suggest that if the Applicant were to commit further family violence offences, the emotional and psychological impacts on his son would be significant. The Tribunal is satisfied that if the Applicant were to commit further family violence offences, the psychological impact and the risk of the son being exposed to family violence would be serious and detrimental to the child psychologically and emotionally.
On balance and having regard to the cumulative evidence, the Tribunal is satisfied that although this consideration weighs in favour of revocation, for the above reasons it is moderated, and does not outweigh the considerations weighing against revocation.
Expectations of the Australian community
The Direction at paragraph 8.5(1) indicates that the Australian community expects non-citizens to obey Australian laws. It states that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
The Direction refers to non-revocation of the mandatory cancellation of a visa, being potentially appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.[78]
[78] Direction 99 [8.5(2)].
The Tribunal observes that the Direction contemplates that the expectations of the Australian community apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the community.[79]
[79] Direction 99 [8.5(3)].
The Federal Court of Australia’s decision in FYBR is significant.[80] In FYBR, the applicant argued that the Tribunal had erred in its approach that paragraph 11.3 of the then of Direction 65 as being deeming of what community expectations are, irrespective of the individual’s personal circumstances. The applicant argued that the Tribunal did not appreciate that it was permissible for it to assess whether community expectations would have been the same in relation to the applicant, given that he had already spent so much time in immigration detention.[81] In rejecting the applicant’s argument, Perry J concluded:
It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases.[82]
[80] FYBR v Minister for Home Affairs [2019] FCA 500 (‘FYBR’).
[81] FYBR v Minister for Home Affairs [2019] FCA 500 [21].
[82] FYBR v Minister for Home Affairs [2019] FCA 500 [42].
On appeal to the Full Federal Court, the majority of the Court (Charlesworth and Stewart JJ) essentially concluded that paragraph 11.3 contained a statement of the Australian Government’s views as to the expectations of the Australian community that must be applied,[83] that it is not for the decision-maker to make his or her own assessment of the community expectations.[84] Stewart J, in a separate but concurring judgment, adds that in the context of Direction 65, community expectations as expressed normatively are what the Government says that they are (even though ascertainable community expectations might be quite different).[85] In essence, the judgment is authority for the proposition that it is not for the decision-maker to make an assessment of community values on behalf of the community, and that those values are expressed as norms in Direction 65.
[83] FYBR v Minister for Home Affairs [2019] FCAFC 185 [66].
[84] FYBR v Minister for Home Affairs [2019] FCAFC 185 [67].
[85] FYBR v Minister for Home Affairs [2019] FCAFC 185 [91].
In the SFIC,[86] the Applicant accepted that this consideration weighs against revocation. However, the Applicant contended that he should be afforded some leniency given the length of time he has been in Australia and his medical conditions.
[86] Ex 1, [34].
The Tribunal is satisfied that the Applicant has committed serious offences involving family violence. The Tribunal is satisfied that the Australian community expects that the Australian Government should not revoke the cancelation of the Applicant’s visa because his conduct is serious and he did not spend his formative years in Australia. The Tribunal gives this consideration significant weight against revocation. However, this is slightly moderated as the Applicant is to be afforded under paragraph 5.2(5) of the Direction the benefit of a higher level of tolerance. The principle at paragraph 5.2(5) of the Direction indicates that Australia “will generally” afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.[87] Direction 99 introduced the principle that the level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years. The Applicant has been in Australia for many years, although he did not spend his formative years in Australia.
[87] In Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 802, the Court rejected the applicant’s submission that ‘most of their life’ in cl 6.3(5) of Direction No 79 (as per para 5.2(5) of Direction No 99) meant ‘most of their adult life’: at [32]. That is, it found that the meaning is plain and that a higher level of tolerance may be afforded to non-citizens who have spent most of their life in Australia, not ‘most of their adult life’.
As to his medical conditions, those will be dealt with under the consideration of extent of impediments if removed.
THE OTHER CONSIDERATIONS
Legal consequences of the decision
At paragraph 9.1, the Direction indicates that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
The Direction divides the considerations to be applied in this paragraph into two sections:
(1) non-citizens covered by a protection finding; and
(2) non-citizens not covered by a protection finding.
Australia is a signatory to several international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).
Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there would be a risk of harm.
The Applicant is not subject to a protection finding and on the material before the Tribunal, there do not appear to be protection claims.
In case of non-revocation, the Applicant would remain in immigration detention under s 189 of the Act, and the removal obligation in s 198 of the Act would apply.[88] The Tribunal is satisfied that detention and removal are lawful consequences in the Applicant’s circumstances.
[88] Migration Act 1958 (Cth) s 198(5A)-(6).
The Tribunal gives this consideration neutral weight.
Extent of impediments if removed
Paragraph 9.2 of the Direction requires the Tribunal to consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country) taking into account:
(a)the non-citizen's age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
The Applicant accepts that there are no linguistic or social barriers if the Applicant is returned to Nicaragua.[89]
[89] Ex 1, [35].

In the Applicant’s SFIC, it was contended that the Applicant would face significant impediments. The Tribunal observes that the Applicant is now 58 years old. He suffers from asthma, Hepatitis C, ‘delusional disorder’, and drug and alcohol issues. He has been described as having a “Score: 5 medium dependence” on nicotine. He also suffers from insomnia.[90] For the reasons outlined above, the Tribunal has not been satisfied that the Applicant suffers from schizophrenia.
[90] Ex 3, 18.
The Applicant relied on country information reports relating to Nicaragua[91] noting that the country faces significant economic issues, and that the minimum wage of Nicaragua is the lowest in Central America, averaging at a wage of US$213 a month.[92] In its Executive Summary, a report[93] noted that:
The situation in Nicaragua today is dramatic from a social, political, economic and public-health point of view. From a political perspective, the situation in the country has only worsened since the April 2018 crisis, when the largest demonstrations in Nicaragua’s recent history led to significant political violence perpetrated by police and paramilitaries, leading to hundreds of deaths, injuries and detentions. But even under international pressure, the Daniel Ortega government has continued to rule the country with a heavy hand, intimidating and persecuting opponents, banning demonstrations, prohibiting foreign ties (through the Foreign Agents Law) and increasing its own armed presence throughout the country. The government has intensified its crackdown on civil society and the free press by revoking the legal registration of NGOs, closing media outlets, arresting journalists and ending the mandates of several international human rights monitoring organizations.
With regard to the economy, Nicaragua is in the midst of an aggravated economic crisis that began in 2018 in the wake of the political crisis and only worsened with the impact of the health crisis in 2020. This has produced a major economic recession and an increase in poverty and extreme poverty. Seeking to address the pandemic and the recession, the government strongly increased the country’s external debt and drew on international aid, but without resolving major problems such as the increase in unemployment and business bankruptcies and a drop in agrarian exports. The pandemic crisis has offered further signs of Ortega’s indifference to the suffering of Nicaraguans, with the government initially downplaying the health crisis. It organized a minimum of measures to combat the pandemic and refused to close schools or inform the World Health Organization about the spread of COVID-19 in the country. Nicaragua is one of the few countries that has not taken serious measures to manage COVID-19. Recently, there has been some international concern about migration problems at the border, as many Nicaraguan migrants in Costa Rica have not been allowed to return to their own country without an expensive COVID-19 test that they could not afford. Furthermore, the government, which recently approved the Sputnik V vaccine, had not as of the time of writing provided details of its vaccination strategy.[94]
[91] Ex 5, 190-232 - BTI 2022 Country Report, and others cited in the Applicant’s SFIC.
[92] Nicaragua’s Minimum Wage is the Lowest in Central America’, Havanna Times (Webpage, 21 April 2023).
[93] Ex 5, 190- 232 - BTI 2022 Country Report.
[94] Ex 5, 192-193.
Other reports referred to in the Applicant’s SFIC note that Nicaragua is the poorest country in the region, with about 70% of jobs in Nicaragua being informal jobs. Nicaragua also has a significant unemployment rate,[95] and a high crime rate.[96]
[95] Employment to Population Ratio in Nicaragua, Fred Economic Data, Economic Research, (Webpage, 21 February 2024) < align="left">[96] Nicaragua’, SmartTraveller.gov.au, (Webpage, 10 November 2023) >
On the evidence, the Tribunal is satisfied that if returned to Nicaragua, the Applicant could face unemployment and other challenges including obtaining medical and psychological assistance for his physical and psychological health. The fact that the Applicant has been in Australia for about 34 years and has never returned to Nicaragua also means that although the Applicant spent his formative years in Nicaragua, he could face a degree of hardship adjusting to a culture with which he may no longer be familiar.
The Tribunal is satisfied that separation from his three children and to a lesser degree from his mother and brother, would cause the Applicant significant emotional hardship in that due to the separation, he would have no or limited opportunity to get support from his immediate family. Although he has some family in Nicaragua, he would need to re-establish those support systems.
The Tribunal accepts that if returned to Nicaragua, the Applicant could face hardship including finding employment, housing, medical/mental health care, and social support. However, as a citizen of Nicaragua, the Applicant would have the same access to social, medical and economic support as other citizens.[97] Moreover and as pointed out in the Respondent’s SFIC, there is evidence that Nicaragua’s social security system offers pension, disability and healthcare benefits to its members, although the pension appears to be linked to a person’s salary and years of contribution. As such, the Applicant’s absence from Nicaragua could impact the level of support he could receive. Moreover, although healthcare is free, facilities appear under resourced.[98]
[97] See paragraph 9.2(1)(c).
[98] Nicaragua’s Social Security System: Pathways to Sustainability, International Monetary Fund, Western
Hemisphere Department, 2017 >
The Tribunal has considered the Applicant’s circumstances very carefully and is satisfied that there are notable impediments.
On balance, the Tribunal gives this consideration significant weight in favour of revocation. However it does not outweigh the primary considerations weighing against revocation.
Impact on victims
The Direction requires decision-makers to consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.[99]
[99] Direction 99 [9.3].
The Applicant’s mother who has been a victim of the Applicant provided a supporting statement and she gave evidence during the hearing, referring among other things to the support that the Applicant has provided to her over the years and of her needs for that support in the future. In case of non-revocation, there would be a degree of impact on the mother but this must be viewed in the context of the Applicant’s mother being an elderly person who has been subjected to family violence perpetrated against her by the Applicant. Moreover, she does have another son and family members in Australia and she is not dependent on the Applicant. Indeed up until recently, there was an AVO against the Applicant for the protection of the mother.[100]
[100] Ex 6, 41.
The Tribunal gives this consideration limited weight in favour of revocation.
Impact on Australian business interests
At paragraph 9.4 of the Direction, it is noted that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
As discussed earlier, there is a letter from Mr Davis[101] and for the reasons explained above, the Tribunal has given limited weight to that document but in any case Mr Davis does not suggest that his business would be impacted.
[101] Ex 7.
There is no evidence of any impact on Australian business interests if the Applicant is not allowed to enter or remain in Australia.
The Tribunal gives this consideration neutral weight.
Other matters for consideration
Paragraph 9 of the Direction expressly states the other considerations “are not limited” to the matters listed therein.
There are no other matters for consideration.
CONCLUSION
Although there are aspects in favour of revocation, the aspects against revocation outweigh those in favour. The protection of the Australian community, which encompasses the seriousness and nature of the Applicant’s offending conduct and the risk of reoffending, the conduct engaged in constituted family violence, as well as the expectations of the Australian community (moderated), weigh heavily against revocation. The strength, nature and duration of the Applicant’s ties, the best interests of his minor child, impact on victims, and the extent of impediments if removed, are to a varying degree, in the Applicant’s favour. However, the cumulative weight of these considerations does not outweigh the significant cumulative weight of the considerations weighing against revocation.
The Applicant has repeatedly committed violence against female members of his family, including his vulnerable mother and child. The evidence before the Tribunal demonstrates that the Applicant has a longstanding and serious drug and alcohol abuse problem, as well as mental health issues which have been associated with his violent behaviour. For the stated reasons, the Tribunal has found that there is a risk of re-offending, which is unacceptable given its seriousness.
Having regard to all relevant material before it, the Tribunal is satisfied that the correct and preferable decision is not to revoke the cancellation of the Applicant’s visa.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 125 (one hundred and twenty-five) paragraphs are a true copy of the reasons for the decision herein of

.........[SGD]...............................................................
Associate
Dated: 22 April 2024

Date(s) of hearing:

8 and 9 April 2024

Applicant:

In person

Solicitors for the Respondent:

Mr C. Burke, Sparke Helmore Lawyers

Date(s) of hearing:	8 and 9 April 2024
Applicant:	In person
Solicitors for the Respondent:	Mr C. Burke, Sparke Helmore Lawyers