Orario and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 4810

Orario and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4810 (20 December 2021)
Division:GENERAL DIVISION
File Number: 2021/7651
Re:Ian Orario
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Boyle
Date:20 December 2021
Place:Perth

The decision of the delegate of the Minister dated 11 October 2021 not to revoke the cancellation of the applicant's Class BF transitional (permanent) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (Act) is set aside and substituted with the decision that the cancellation of the applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.
...[SGD].....................................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – s 501CA(4) of the Migration Act – decision not to revoke mandatory cancellation of visa – Applicant fails character test – Direction 90 considered – Applicant is a citizen of the Philippines – numerous breaches of family violence restraining orders – weighing the impact on victims – victim of offending supports revocation of cancellation – there is another reason to revoke the visa cancellation – reviewable decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 499(1), 499(2A), 500(1)(ba), 500(6B), 501(3), 501(6), 501(6)(a), 501(7), 501(7)(c), 501(7A), 501CA, 501CA(4), 501CA(4)(b), 501CA(4)(b)(i), 501CA(4)(b)(ii)
CASES
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 2) [2020] FCA 1842
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
CZCV and Minister for Home Affairs [2019] AATA 91
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454.
Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 66
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
PYDZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1138
PYDZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050
RQRP v Minister for Immigration, Citizenship and Multicultural Affairs [2021] FCA 266
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594; (2018) 74 AAR 545
Wickramakarulu Arachchi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3146
SECONDARY MATERIALS
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018)
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) paras 4(1), 5.1, 5.2, 5.2(5), 6, 7, 8, 8.1, 8.1.1, 8.1.1(1)(a), 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii), 8.1.1(1)(a)(iii), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(1), 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.2(3), 8.2(3)(a), 8.2(3)(b), 8.2(3)(c), 8.3, 8.3(4), 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(e), 8.3(4)(f), 8.4, 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 9, 9.1, 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.4, 9.4.1, 9.4.2
REASONS FOR DECISION
Deputy President Boyle
20 December 2021
THE APPLICATION

The applicant seeks review of the decision of a delegate of the Respondent (Minister) dated 11 October 2021[1] not to revoke the cancellation of the applicant's Class BF transitional (permanent) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
[1] G3.
The applicant’s visa was cancelled under s 501(3A) of the Act on the basis that he did not pass the character test by reason of his substantial criminal record and was serving a full-time term of imprisonment for an offence against a law of a State.
The application is made pursuant to s 500(1)(ba) of the Act which allows applications to be made to the Administrative Appeals Tribunal (AAT) for review of decisions of a delegate of the Minister made under s 501CA(4) of the Act.
THE ISSUE
The issue for determination is whether the tribunal should exercise the power in s 501CA(4)(b) of the Act to revoke the cancellation of the visa made under s 501(3A). This will require determination of:
(a)whether the applicant passes the character test (as defined by s 501 of the Act); and
(b)if he does not pass the character test, whether there is “another reason” why the decision to cancel the applicant’s visa should be revoked.
BACKGROUND
The applicant is a 37-year-old citizen of the Philippines who has resided in Australia since 1994 when he arrived as a ten-year-old.[2]
[2] R1, G5/86.
The applicant has a lengthy criminal record. He has been convicted of 68 offences between 2005 and 2020.[3] The applicant’s full criminal record is set out in the annexure to these reasons for decision.
[3][3] R1, G5/ 37–40; R2, Western Australian Police History for Court – Criminal and Traffic (WAPOL Record).
On 10 September 2020 the applicant received a 12-month sentence of imprisonment for unlawful assault and thereby did bodily harm with circumstances of aggravation. On the same date he received 17 convictions for breaches of a family violence restraining order (FVRO) for which he received sentences of imprisonment for terms from two to six months (concurrent). On that day he was also convicted of three breaches of a suspended imprisonment order (SIO), for each of which he received a term of imprisonment of four months (two concurrent and one cumulative).
That was not the first time that the applicant had breached FVROs and SIOs. The applicant was convicted of breaches of FVRO on 11 October 2018 (three counts), on 13 February 2018 (two counts), on 4 September 2017 (one count) and breach of SIO on 7 August 2009. He was also convicted of breaches of bail or protective bail conditions on 4 September 2017 (one count), 23 March 2009 (three counts), 10 March 2008 (one count), 27 July 2007 (three counts), 26 September 2006 (two counts) and one count of breach of intensive supervision order on 27 July 2007.[4]
[4] R1, G5/37–40; R2, WAPOL Record.
On 12 November 2020 the applicant’s visa was mandatorily cancelled.[5] On 27 November 2020 the applicant made representations seeking revocation.[6] On 11 October 2021 a delegate decided not to revoke the cancellation (see [1] above).
[5] R1, G5/87–94.
[6] R1, G5/98–117.
On 18 October 2021 the applicant applied to the AAT for a review of the decision not to revoke the cancellation of his visa. This application was lodged within the time prescribed by s 500(6B) of the Act.
THE HEARING AND THE EVIDENCE
The application was heard on 6 and 10 December 2021. The applicant was assisted in the hearing by Mr G Georgatos. Mr Georgatos is not a legal practitioner. While Mr Georgatos made most of the submissions on the applicant’s behalf, the applicant did also make submissions in addition to those made by Mr Georgatos. The Minister was represented by Mr A Gerrard of the Australian Government Solicitor. The following documents were admitted into evidence:
(a)Applicant’s email submission dated 19 October 2021 (A1);
(b)Applicant’s statement dated 12 November 2021 (A2);
(c)Letter of support of the Applicant’s daughter dated 17 November 2021 (A3);
(d)Letter of support of the Applicant’s son dated 10 November 2021 (A4);
(e)Letter of support of Teliah Wall dated 15 June 2021 (A5);
(f)Letter of support of Mark Wooldridge dated 8 November 2021 (A6);
(g)Letter of support of Maria Kaye dated 10 November 2021 (A7);
(h)Letter of support of Melanie Hume dated 18 November 2021 (A8);
(i)Letter of support of Morona Colbung dated 15 November 2021 (A9);
(j)Letter of support of Terence Cabales dated 20 June 2021 (A10);
(k)Letter of support of Belinda Langridge dated 23 June 2021 (A11);
(l)Letter of support of Mark Hutchins dated 6 June 2021 (A12);
(m)Letter of support of Jason Sharp dated 26 June 2021 (A13);
(n)Letter of support of Kaylyn Smith dated 18 June 2021 (A14);
(o)Letter of support of Vivian Pell dated 13 May 2021 (A15);
(p)Letter of support of Mary Morgan date 12 May 2021 (A16);
(q)Letter of support of Kenneth Rangi dated 21 October 2021 (A17);
(r)G documents received 29 October 2021 (R1); and
(s)Supplementary G documents received 15 November 2021 (R2).
The applicant and his stepdaughter, Teliah Wall, gave evidence at the hearing. Ms Wall gave evidence by telephone. The applicant sought to call his stepfather, Mr Wooldrige, to give evidence at the hearing, however, the tribunal’s attempts to contact Mr Wooldrige by telephone in the hearing were unsuccessful.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act relevantly provides that:
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) of the Act relevantly provides:
For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)); …
(Original emphasis.)
A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) ...
(b) ...
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
…
(Original emphasis.)
Section 501(7A) of the Act provides:
(7A)For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.
Section 501CA of the Act relevantly provides:
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
...
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
(Original emphasis.)
Ministerial Direction 90
Section 499(1) of the Act provides that:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(1) the performance of those functions; or
(2) the exercise of those powers.
Section 499(2A) of the Act provides that, “A person or body must comply with a direction under subsection (1).”
On 8 March 2021 the Minister, being the relevant Minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 90).[7] The commencement date for operation of Direction 90 was 15 April 2021. Upon its commencement, Direction 90 revoked the operation of “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 79).[8]
[7] 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).
[8] Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018).
Paragraph 5.1 sets out the objectives of Direction 90. Paragraph 5.1(3) relevantly provides:
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction 90 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA. These principles are as follows:
(a) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(b) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(c) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(d) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(e) 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 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 90 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 90 (where such considerations are relevant) in order to determine whether the cancellation of the visa should be revoked.
Guidance in relation to how the relevant considerations are to be taken into account can be found in para 7 of Direction 90 which provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of Direction 90 provides:
In making a decision under section … 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.
Paragraph 9 of Direction 90 provides:
(1) In making a decision under section … 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)    international non-refoulement obligations;
b)    extent of impediments if removed;
c)    impact on victims;
d)    links to the Australian community, including:
i)strength, nature and duration of ties to Australia;
ii)impact on Australian business interests.
CONSIDERATION
Does the applicant pass the character test?
Failure of the character test arises as a matter of law: Harrison and Minister for Immigration and Citizenship.[9] The character test is defined in s 501(6) of the Act (see [14] above). Under s 501(6)(a) of the Act, a person does not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) (see [15] and [16] above) provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more...”. Section 501(7)(d) provides that a person will have a substantial criminal record if they have been “sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more”. Both sub-sections apply in the applicant’s case.
[9] [2009] AATA 47; (2009) 106 ALD 66.
As the applicant does not pass the character test, he cannot rely on s 501CA(4)(b)(i) for the decision to cancel his visa to be revoked. The issue, therefore, is whether the power under s 501CA(4)(b)(ii) should be exercised on the basis that there is another reason why the decision under s 501(3A) should be revoked (see [17] above).
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
PRIMARY CONSIDERATIONS
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)

Paragraph 8.1 of Direction 90 provides that when decision-makers are considering the protection of the Australian community, they:
(1) ... should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (para 8.1.1)
Paragraph 8.1.1 of Direction 90 provides:
(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d) the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e) the cumulative effect of repeated offending;
(f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The Minister made the following submissions in relation to the seriousness of the applicant’s offending:
(a)His criminal record is “significantly lengthy”. He has committed 68 offences over a 15-year period. The sheer number of the offences is an aggravating feature, as well as the fact that he continually breaches court and police orders.
(b)The applicant was convicted of 22 offences only last year, representing offences committed between 14 August 2018 and 16 April 2020. These comprised mainly breach offences, including breaches of FVROs together with a conviction for unlawfully assault and thereby did bodily harm.
(c)The most serious offence is the assault and thereby did bodily harm. The sentencing magistrate described it as “a particularly vicious assault and into the mid to high level range for offences of that type”.[10]
(d)Most of the breach offences were, as noted by the sentencing magistrate, not person-to-person, but rather by telephone calls being made. The assault, however, arose from a breach of FVRO incident.
(e)There is a mandatory imprisonment sentence that attaches to breaches of FVROs and there were no special circumstances which warranted suspending the sentence.
(f)The applicant also has convictions for drug offences, dishonesty offences, property offences and driving offences.
(g)The applicant’s offending is self-evidently of the kind viewed as very serious under Direction 90. His most recent offence involved family violence, and he has a large number of convictions for breaching FVROs.
(h)Taking into account the nature and pattern of the offences, the increasing severity and the cumulative effect upon the community, the sentencing remarks and the specific guidance and principles set out in Direction 90, the Minister contends that the nature and seriousness of the applicant’s conduct is a significant consideration that weighs very heavily against revocation of the decision to cancel the applicant’s visa.
[10] Citing R1, G5/75.
As noted above, the applicant was not legally represented. The applicant did not provide a Statement of Facts, Issues and Contentions (SFIC). By exhibit A1, Mr Georgatos made submissions to the following effect:
(a)The applicant is an individual of good character and standing.
(b)He has experienced a single carceral experience. He completed his sentence and he has served his penance.
(c)The applicant is dedicated to a working life and to his family – his children.
(d)All of his immediate family is in Australia.
(e)He has two Australian born and bred children, aged 13 and 15. The mother of his children is Australian bred and born and is also First Nations, a Noongar individual.
(f)His family is also in Australia – his father and mother are Australian citizens, living in Bunbury, Western Australia. They came to Australia prior to the applicant. The applicant was cared for by his grandmother in the Philippines until 1984[11] when the applicant, being nearly 11 years old, arrived to be with his family.
(g)The applicant is Australian bred. His siblings live in Australia. He has no one in the Philippines.
(h)He is a father to his two biological children and to his 21-year-old stepdaughter. His children need their father and they have a close relationship.
(i)His children and his immediate family live relatively close to one another in Western Australia’s southwest.
(j)It would be “psychosocially devastating to dishevel the family and a father, son and brother parted unnecessarily.”
(k)Mr Georgatos urged “an investiture of faith in Mr Orario and in his ability to an uninterrupted presence in the lives of his family, his loved ones and of their immutable rights of his children to their father. Other than the outlier of the single carceral experience, he has strived to be his best self at all times.”
[11] I assume this should be 1994.
While the applicant has a significant number of convictions, 68 over a 15-year period, a large proportion of the offences are relatively minor. The first of what could be considered to be the more serious of the applicant’s convictions was that for aggravated burglary of a dwelling in 2008, for which the applicant received a 16-month term of imprisonment suspended for two years. In sentencing the applicant Bowden DCJ described the circumstances of the offence as follows:
The facts relating to this offence are very brief; that is, on the day in question, around about 2 o' clock in the afternoon, you attended the residence in company with others. Entry was gained though a bedroom window and a large number of items were taken, including a TV, a DVD recorder, laptop, camera and jewellery to a total value of about $25,000. That is a substantial amount of money as far as a value of the property taken is concerned.
…
There can be nothing worse than coming home to find that your property has been burgled; that your possessions are taken and that your house in essence has been ransacked; and quite often items of sentimental value are taken and the public quite rightly expect the courts to do something about persons who for whatever reason burgle their premises.
…
This burglary was quite brazen; that is, there were three of you. You went to this property on the afternoon, literally in the middle of the day; you helped load the items into the vehicle. Even if one accepts, as one must, what is put to me, that is, that you weren't involved in the initial planning and that you thought that the position put to you by your co-off ender, Mr Cox, was true - that is, that you were going to a relative's place - it surely became apparent to you shortly thereafter that the position wasn't as he had suggested. Notwithstanding that, you continued to assist him and in fact kept some alcohol and a stereo.
…
I was originally going to order the period of imprisonment to be served immediately, however, I have taken on board what Mr Maughan as said to me; that is, that you have spent 97 days in custody and significantly the pre-sentence report indicates that you are motivated for a change. So I am prepared to suspend that sentence for a period of two years, the conditions that I impose are as follows: That you do undergo an assessment and treatment as directed by your community corrections officer in the issues of substance abuse; anger management and consequential thinking…[12]
[12] R1, G5/45–7.
Within one month[13] of being sentenced for the burglary offence, the applicant breached the terms of the suspended sentence order by committing a number of driving offences.[14] The applicant, while on bail, was due to appear in the District Court on the breach charges on 7 August 2009, however, failed to appear at the required time, which resulted in Davis DCJ issuing a bench warrant for his arrest. The applicant did appear before Davis DCJ later that day (his explanation was that he was late getting to court because he had to hitch-hike) at which time her Honour made the following comments:
Well, look, Mr [Orario], I must say that it seems to me that you breached within a month of getting sentenced by Judge Bowden and you really, as far as I can tell, have made very little effort to comply with it. You have got psychological issues, you have got substance abuse issues, in light of what the state has said to me today I won't order you to serve either part or all of the sentence which was imposed by Judge Bowden, and that was 16 months in prison.
Now, if you don't want to be parted from your family for that period of time then you will have to be prepared to be parted from your family for a half a day or a day on a regular basis to undergo the treatment that you need. Do you understand? It's a very, very small price to pay to keep your appointments for counselling and whatever else the community corrections officer tells you to do because the alternative is prison.
So I am going to give you one last chance. I am going to, pursuant to section 84L(1)(c), impose another suspension period to begin today for 18 months. So for the next year and a half, and it's got to be on the same conditions that Judge Bowden imposed and they were a program requirement for issues of substance abuse, anger management and consequential thinking.
[13] R1, G5/64.
[14] R1, G5/39.
It appears that the applicant took some heed of her Honour’s “last chance”, as he was not convicted of another offence until December 2015 (no authority to drive). In cross-examination the applicant was asked why he had not offended during this period. His answer was that he had had a child (his son) and was working in the construction industry with his stepfather.[15]
[15] transcript at 38.
In April 2016 the applicant was convicted of possession of cannabis and in August 2016, he was convicted of no authority to drive and driving an unlicensed vehicle. In August 2017 he was convicted of three drug related charges and unlawful possession of a firearm/ammunition. When asked at the hearing about these convictions, the applicant’s evidence was that he had started to use methamphetamine around that time and his relationship with his partner had become “toxic”.[16]
[16] transcript at 38–40.
It was around this time that the applicant’s partner, the mother of his two children, took out a FVRO. The applicant was served with the FVRO on 21 July 2017. This order was due to expire on 20 July 2019.[17] The applicant breached the FVRO on 23 and 24 August 2017 by being at the protected person’s home contrary to the terms of the order (convicted in February 2018).
[17] R2.
The applicant again breached the FVRO on 3 September 2017, and also on that date breached protective bail conditions for which he was convicted in the Bunbury Magistrates Court on 4 September 2017.
As can be seen from the applicant’s criminal record, there then followed numerous and frequent breaches of that FVRO and a subsequent FVRO served on the applicant on 27 December 2019[18] as well as breaches of SIOs. In October 2018, the applicant appeared before Magistrate Shakleton in the Bunbury Magistrates Court on multiple breaches of the FVRO and breach of protective bail conditions at which time the Magistrate made the following comments to the applicant:
[18] R1, G5/76.
Mr Orario, there is no tariff for this kind of offending, but the Restraining Orders Act is legislation of the utmost importance. It’s essential that the courts make sure that the orders that are imposed are not ignored. In Dennis v Lantornia, Jenkins J held that in order for the Act to be effective, offenders have to appreciate that if they breach the order, they will receive a significant penalty.
…
In my view, imprisonment would not be unjust in the circumstances of the offence, your personal circumstances and in my view, you are not unlikely to be a threat to the person protected. On that basis, the sentence that I impose must include imprisonment.
…
You’ve had previous fines. You’ve appeared in court previously. With respect to these matters, you were released to bail and you went off and breached the order again which also then breached the bail condition. Totality, it seems to me, is a significant thing with respect to this.
…
Mr Orario, you have not done a great deal to satisfy me that a suspended sentence is appropriate. You’ve breached previously, you’ve been fined, you’ve been released, you’ve been breached again, you’ve been fined, you’ve been released. You’ve breached twice now and then been released and breached against whilst on that bail and that’s why there is a breach of protective bail condition there.
…
Just understand, Mr Orario, you’ve been released before and promised you’re not going to breach the restraining order again. Last time [it] resulted in you serving one and a half months which I’ve taken into account. Next time it will result in you serving eight months. So that plus any other offence that carries imprisonment, which you may as well accept are most, will breach that suspended term of imprisonment.[19]
[19] R1, G5/67–8.
Notwithstanding this warning, the applicant continued to breach the FVRO. He committed breaches in November 2018 (three times), December 2018 (twice), March 2019 and on 23 April 2019 when he also assaulted his partner which resulted in the applicant’s conviction and imprisonment on 10 September 2020. The applicant breached the second FVRO served on him on 27 December 2019 ten times in April 2020.
In sentencing the applicant on 10 September 2020, Magistrate Coleman made the following observations:
Mr Orario, you come before the court for final sentence on seven separate offences of breaching a family violence restraining order and a further charge of unlawfully assaulting and causing bodily harm to your ex partner, [Ms J]. It's important to outline the history of these proceedings. You have previously been convicted on six separate occasions of breaching a family violence restraining order. The first time you came before the court was in 2017. …
[Y]ou were found guilty on 4 September of 2018 of a breach of family violence restraining order and you were fined. Then you next came before the court on 13 February 2018 for two separate offences of breaching a family violence restraining order on two separate dates, and on that date you were fined a global penalty of $800. I'm certain that the magistrate on that date would have given you a stern warning that any further conviction for breaching a family violence restraining order would have you fall within the parameters of section 61A of the Restraining Orders Act.
In other words, breach the order again and you will be required to be sentenced to a term of imprisonment. That's exactly what happened on 11 August 2018 when you came back before the court for three further breaches of family violence restraining order, the facts of which I have just heard from the sergeant. Magistrate Shackleton on that date sentenced you to a term of imprisonment, a total effective sentence of eight months. However, he suspended that term of imprisonment for a period of 12 months and he gave you the very stern warning, of course, that should you breach the order by further offending against the family violence restraining order, then the overwhelming likelihood is that you would be required to serve that term or at least part of it.
… I would have thought that when Magistrate Shackleton gave that sentence or handed that sentence down that the hope was that the term of imprisonment hanging over your head, in other words, the 12 months for which you would be required to be subject to that suspended term, would further deter you from breaching the order.
But only a matter of a month later on 25 November, just shortly more than a month later, you then breached the order again. Two days after that you breached the order. Three days after that you breached the order again, and then there were a further two days on 1 and 2 December when you continued to breach the order. Thereafter there was a gap. I'm not sure whether or not you were in custody for some period of time. The records show that you were. You were remanded into custody for a period of time, and then bail was then set.
And you again breached the order on 3 March, and then ultimately on 23 April 2019 you again breached the order by being in company with the protected person and committing what I consider to be a fairly vicious assault upon her that caused her bodily harm on 23 April 2019.
… I also need to take into account the nature of your offences. For the most part for these breaches they were not person to person breaches, although the 23 April was. The others were all telephone calls to your protected partner or ex-partner.
…
… there was a facilitated visit on 23 April. You were aware that you were not meant to be in the presence of the complainant. You chose to be in her presence, and after an argument happened over the fact that she had taken your drugs away from you, you then assaulted her. Not only did you assault her, you viciously assaulted her. You wrapped your hands around her throat and you strangled her. And if that wasn't enough, you then hit her with a cricket bat to her arm and her leg. And then when that wasn't enough, you decided to pull her by the hair until she was on the ground. She was not able to be assisted by her sister who was heavily pregnant at the time.
That assault upon your partner was vicious. I don't care if it was provoked by her kicking you. You are a man. She is a woman. And the fact that you wrapped your hands around her throat, you are very lucky that you didn't cause permanent brain damage to her, because the majority of the medical materials support and studies show that even momentary pressure upon a woman's throat can cause significant brain damage to that person. You are just very lucky that you didn't cause that injury to her.
I have no doubt whatsoever that at the time that you assaulted her on 23 April last year that she was completely terrified for her life, and you should be ashamed of yourself.
…
The maximum penalty for that assault offence, of course, on indictment is seven years imprisonment. In this jurisdiction it is three years imprisonment or up to a $36,000 fine. If I've not already sent you the message before in my remarks earlier, I'm sending you the message now. I consider that assault to be a particularly vicious assault and into the mid to high level range for offences of that type. I most certainly have reached the point where a term of imprisonment is an appropriate disposition for that charge.[20]
[20] R1, G5/71–5.

The applicant’s evidence at the hearing was that he only broke off his relationship with his partner “a few months ago when she went into rehab”,[21] “just after August”.[22] Asked why his partner had taken out the FVRO against the applicant, his response was:
[21] R1, G5/39.
[22] R1, G5/40.
COUNSEL:     But you did fight and argue with her, didn't you?
APPLICANT:   Yes, we had an argument, she was pretty mad, to tell you the truth.
COUNSEL:     She took a restraining order out on you?
APPLICANT:   Yes, she did put a restraining on me and which is actually broke my    heart because I wasn't there for my kids, you know.
COUNSEL:     Why did she take a restraining order out against you?
APPLICANT:   I wouldn't have a clue. Till this days, I don't even know why she did    it, just to be selfish, I guess.
…
COUNSEL:     Mr Orario, I was asking you about why [Ms J] would have taken a    family violence restraining order out on you and you said that you had   no idea, just to be selfish?
APPLICANT:   Yes, no idea. At the time, she was - I wouldn't have a clue, to tell you                    the truth. All I know down the track, she's ended up seeing another   person behind my back, that's probably the reason why and yes.[23]
[23] transcript at 40–1.
Mr Gerrard then took the applicant to a statement made to police by his partner on 8 September 2018 relating to an incident at her home on that day in which there was a confrontation with the applicant. In that statement she said, “Our relationship started to be on and off for the last few years and he started using drugs and was aggressive.”[24] Mr Gerrard read that statement to the applicant and asked him to comment. The following exchange ensued:
[24] R2.
APPLICANT:   Well, that's what she said to the police.
COUNSEL:     Yes, and you say that that's not true?
APPLICANT:   Well, basically, they listen to woman more often than a man, you see,                    so - - -
TRIBUNAL:     If I could just confirm though, Mr Orario, try to listen to the question    and answer the question?... So, the question is, do you deny or do   you admit that statement that Mr Gerrard read to you?
APPLICANT:   Yes, I'll admitted it, I'll submitted it, yes, I'll admit everything yes.
COUNSEL:     So, you admit that you were aggressive and were using drugs?---
APPLICANT:   I don't - around that, that's pretty hard because this is the part where    I pleaded not guilty to you, around this time. But yes, yes, I admitted   it, yes, yes, I did. I was pretty verbal.
TRIBUNAL:     Sorry, I don't understand the answer. Mr Orario, the question is, the    statement was read to you that our relationship started to be on and   off for the last five years and he started using drugs and was   aggressive. Do you agree that that is the case?
APPLICANT:   Yes, I believe so.
TRIBUNAL:     So, you did start to use drugs and became aggressive?
APPLICANT:   When I - I wasn't - I'm not been an aggressive person, but I don't think                   I was aggressive. It's how the police put it down or how - yes.
TRIBUNAL:     That's what I'm trying to - - -?
APPLICANT:   Basically, I don't think I - - -
TRIBUNAL:     I don't want to hear whether you think the police favour women above                    men, it's a straightforward question. Do you - - -?
APPLICANT:   No, I was aggressive.[25]
[25] transcript at 42.
Mr Gerrard then took the applicant to a statement dated 2 December 2018 by his then partner[26] in which she said, “After years of abuse, I got a family restraining order in July 2018 to protect me from Ian.” He then asked the applicant whether he accepted that that was the case. The applicant accepted that that was the case.[27] (transcript at 42).
[26] R2.
[27] transcript at 42.
The following exchange then occurred:
COUNSEL:     Previously, you were giving evidence to this tribunal that you hadn't    been aggressive or abusive and that you didn't know why [the   applicant’s partner, Ms J] took out the family violence restraining   order and then you seem to disagree initially when I put these   statements to you and now you're agreeing. So, it's a little bit   confusing for the tribunal?
APPLICANT:   Well, I'm trying to tell you, because I'm not that real person, that no,    it wasn't true, I would never hurt her.
COUNSEL:     So, it was true or it wasn't true?
APPLICANT:   No, it wasn't true, it's just what the police believed in her, what the    police said to her. She was actually an alcoholic and she was actually   - - -
TRIBUNAL:     We'll try again, Mr Orario, could you just, as I said, I'm not interested    in what you think that the police favour or what. The question is a   simple one and I'll take you back to the original statement. This is   the statement of [Ms J] of 8 September 2018. She said, "Our   relationship started to be on and off for the last few years and he   started using drugs and was aggressive". Do you say that that is a   true statement of what was happening in 2018?
APPLICANT:   No, it's not true, it's not true.
TRIBUNAL:     The next statement that was put to you was a statement made by    [Ms J] in December 2018 and she said in that statement, "After   years of abuse, I got a family violence restraining order in July 2018   to protect me from Ian". Is that a true statement? Were you - - -?
APPLICANT:   No, it's not true. At the time, she had an alcohol problem in all of    those things.[28]
[28] transcript at 42–3.
Mr Gerrard then took the applicant through the many breaches of the FVRO. The applicant’s evidence was:
APPLICANT:   … Yes, anyway I got breached, I did breach it, because that's the    law, like, even if a woman chase you up, you still breach it.
COUNSEL:     So, is it your evidence that those statements from [Ms J] to    the police are she was lying?
APPLICANT:   Well, they believed her and I got charged for it. Yes.
COUNSEL:     That's not the question I asked. Do you say that she was lying to the                     police?
APPLICANT:   Well, she did tell lies to the cops.[29]
[29] transcript at 44.
The applicant was then taken to a statement made by his stepdaughter Ms Wall to police in relation to the incident at her mother’s home on 8 September 2018.[30] The applicant was cross-examined on that statement as follows:
[30] R2.
COUNSEL:     …This is Teliah… and she says in that statement that you called her    a dog, is that correct, did you?
APPLICANT:   No, I don't remember calling her that.
COUNSEL:     She said that you started shouting in her face and told her to fuck off                     and that she was a dog. Do you remember that?
APPLICANT:   No, I never told her that, I don't remember saying that to her.
COUNSEL:     Says that you bumped her with a shoulder and told her to fuck off    again and that you were trying to hit her mum and you told her that if   she didn't move you would hit her?
APPLICANT:   No.
COUNSEL:     That's not true?
APPLICANT:   I don't remember saying that. No, that's not true.
COUNSEL:     So, she lied?
APPLICANT:   But I got charged, I got charged for it.
COUNSEL:     So, you're saying that she lied in that statement?
APPLICANT:   I believe, yes.[31]
[31] transcript at 44–5.
The cross-examination then took a somewhat odd turn:
COUNSEL:     You've filed a statement in support from Teliah, so why should this    tribunal believe that statement?
APPLICANT:   (Indistinct).
COUNSEL:     Sorry, I didn't hear that, Mr Orario?
APPLICANT:   No comment.
COUNSEL:     When Magistrate Shackleton, by the barest of threads, suspended    your sentence because he thought that a prison sentence might have   changed your view, he was wrong, because you breached again on   23 April 2019. That was when you assaulted [Ms J]. Correct? Mr   Orario, is that correct?
APPLICANT:   Yes, no comment.[32]
[32] transcript at 45.
Ms Wall gave evidence at the hearing. The entirety of her statement of 8 September 2018 was read to her. She gave clear and unequivocal evidence that the statement that she made to the police on 8 September 2018 was true.[33] I accept her as a truthful witness who appreciated that her evidence in relation to that incident was not helpful to the applicant notwithstanding that she wants the applicant to remain in Australia.
[33] transcript at 75–6.
In assessing the seriousness of the applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 90, I find that:
(a)(Paragraph 8.1.1(1)(a)) – the applicant’s assault on his partner on 23 April 2019 for which he received a 12-month prison sentence (described by Magistrate Coleman as “vicious”– see [41] above) must, pursuant to sub-paras 8.1.1(1)(a)(i) and (ii), be viewed as very serious. I am also satisfied that that assault should be treated as an act of family violence under sub-para 8.1.1(1)(a)(iii) as the victim was at the time of the assault the applicant’s de-facto partner:[34] Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[35] at [135]–[157]. The incident of 8 September 2018 as described in the statements of his partner and her daughter (see [44] and [47] above), the “years of abuse” to which his partner referred in her statement (see [44] above) which caused her to obtain the FVRO and the admissions of assault made by the applicant (see [64] below) are also all acts of family violence which, again pursuant to sub-para 8.1.1(1)(a)(iii) must be viewed as very serious.
(b)(Paragraph 8.1.1(1)(b)) – the applicant’s conduct was not of the type described in this consideration.
(c)(Paragraph 8.1.1(1)(c)) – the sentences imposed by the courts, several of which were suspended, were at the lower end of the range of terms for the offences.
(d)(Paragraph 8.1.1(1)(d)) – the applicant has been convicted of 68 offences between 2005 and 2020.[36] While a significant portion of those offences could fairly be considered to be minor,[37] the applicant’s offending has been frequent (with a period of non-offending between 2009 and 2015). Given that the most serious offence, the assault and did bodily harm, was the last offence (other than the FVRO breaches committed while in prison/detention), there is a trend of increasing seriousness.
(e)(Paragraph 8.1.1(1)(e)) – the cumulative effect of the applicant’s repeat offending, particularly in circumstances where he has repeatedly been warned of the consequences of his re-offending by sentencing courts, is that the applicant appears to have no regard for the law or, alternatively, is unable to control his behaviour.
(f)(Paragraph 8.1.1(1)(f)) – not relevant.
(g)(Paragraph 8.1.1(1)(g)) – not relevant.
[34] The applicant’s evidence was that the relationship did not end until August 2021 – transcript at 40.
[35] [2021] FCA 1456.
[36] R1, G5/37–40; WAPOL Report.
[37] Noting that some of the breaches of the FVRO, particularly the second one, were not in person.
Based on the considerations in para 8.1.1 of Direction 90, I am satisfied that the applicant’s offending has been serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
Paragraph 8.1.2 of Direction 90 relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i)information and evidence on the risk of the non-citizen re-offending; and
ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The tribunal in CZCV and Minister for Home Affairs[38] summarised the task for the tribunal as follows at [56]:
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
[38] [2019] AATA 91.
In BSJ16 v Minister for Immigration and Border Protection[39] Moshinsky J stated, at [68]:
... there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.
[39] [2016] FCA 1181.
While the tribunal and the Court in the above cases (and in the cases referred to therein) were considering visa cancellation in the context of predecessors to Direction 90, given the similarity in the wording of the several Ministerial Directions, the same considerations and principles apply to the present case. I adopt the approach indicated in the above cases.
Nature of harm to individuals or the Australian community (8.1.2(2)(a))
The nature of the harm to individuals and to the community if the applicant were to engage in the criminal and other behaviour which he has in the past, is obvious and serious. The consequences of a repeat of the violent behaviour for which the applicant was convicted on individuals who might be victims of such behaviour, as well as to the victims’ families and loved ones, and the broader community, do not need to be spelt out. Family violence not only causes harm to the direct victim, but also to the other members of the affected family. As well as the physical harm, family violence can cause trauma to those directly involved and to those who witness it, particularly children.
The offence most frequently committed by the applicant was the breach of the FVRO. People who seek the protection of such an order should have some comfort that they will be protected by the order. That comfort, and victims’ preparedness to seek the protection of the law through such orders, is significantly undermined by behaviour of the type exhibited by the applicant, which is basically a total disregard for such orders.
The harm caused by disregard of the type shown by the applicant for driving laws is also self-evident and serious.[40]
[40] See RQRP v Minister for Immigration, Citizenship and Multicultural Affairs [2021] FCA 266 per McKerracher J at [44].
I find that the nature of the harm that would be caused to the community if the applicant were to reoffend or engage in the serious conduct that he has in the past would be serious, not only to individuals in the community, but also to the community as a whole.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (8.1.2(2)(b))
The Minister contends that there are cogent reasons for the tribunal to be concerned about the applicant’s risk of re-offending. They are:
(a)The applicant’s criminal history reveals an unrelenting disregard for the law and persistent criminality. It is of concern that he repeats similar offences and that those offences have escalated in gravity. The applicant has a significantly lengthy record. He has committed over 68 separate offences over a 15-year period. His offending is also recent with the applicant receiving 22 separate convictions in 2020.
(b)The applicant has a history of breaching court and other orders. The courts have consistently expressed pessimism and frustration in respect of the applicant’s persistent breaches.
(c)The applicant has had an entrenched substance abuse problem with no evidence that he has taken any steps to address this. Neither has he taken any steps to address his underlying issue with aggression and violence. With a record such as the applicant’s, the tribunal would ordinarily be looking to consider objective gains made in respect of substance abuse, anger management and relationship issues. There is no such objective evidence, and given the backdrop of a 15-year history of offending, this should be of extreme concern to the tribunal.
(d)The tribunal can draw no confidence from the applicant’s time whilst incarcerated. A number of adverse incidents were recorded against him during this period including, most concerningly, additional breaches of the FVRO.
The Minister submits that given the nature of the offences and the nature of the harm to individuals, including vulnerable persons, the Australian community should not be expected to tolerate any risk of recidivism: see paras 5.2(5) and 8.1.2(1) of Direction 90.
As noted above, the applicant did not provide a formal SFIC. There are, however, a number of statements made by the applicant in these proceedings and in the representations made to the Minister in response to the invitation under s 501CA(3) of the Act which are potentially relevant to this consideration.
In his Personal Circumstances Form,[41] the applicant said that he believed that the chances of his reoffending were “minimum” because the latest period of incarceration has been “a real learning cur[ve]” and that “the risk of [his] being deported weighs on [him] heavily as this would have a devastating effect on his children”.
[41] R1, G5/111.
In his statement dated 12 November 2021,[42] the applicant said:
During my time in detention I have had time to reflect on the crimes that I have committed. I am bitterly disappointed with myself and sincerely remorseful towards my ex-partner. I am ashamed of the injuries I inflicted on her during our time together. I know she has forgiven me and I am very appreciative of this. We have 2 children together, 13 year old daughter [M], 14 year old son [J] as well as my step daughter. I wish to become a good role model for my children and make up for the time we have been separated. My current partner of 8 months is extremely supportive of me and also my children.
…
I believe to myself that I have been rehabilitated during my time in prison and detention. I have accomplished anger management and life skills course's in detention that has assisted me in dealing with anger problems, also showing me how important life is and being a responsible person. I have self-taught myself to communicate properly with my children and people around me. It's really important for me to learn about life and to give back to my children. I wish to heal and restore them, as they have been broken as a result of me not being there for them as a father. Being in detention has overwhelmed me with fear as I was confronted with the realisation that we may be separated forever.
I am pleading to you to see my sincerity and give me a second chance. I wish to be a good and productive member of the Australian community. I also ask you take into consideration my rheumatic heart condition, which makes me vulnerable without adequate care not available in the Philippines as they are have poor health services.
I wish to be a law abiding citizen and an upstanding role model to my children.
[42] A2.

In examination-in-chief Mr Georgatos asked the applicant how the Minister could be assured that the applicant would not re-offend. His answer was:
Well, basically, I will never be like any troublemakers or anything outside, out there, because that's not really I am and I'm not really that person really. And because the past is the past, what happened in the past is the past and basically, I've moved on with my life and I'm actually looking forward just to go to work and be around my kids to support them and be a good example for them, I guess. Like, how my stepdad did for me and - - -[43]
[43] transcript at 31.
Mr Georgatos then asked the applicant how the Minister could be satisfied that he would not go back to using illegal drugs. His answer was:
I would never go back using any drugs at all, ever, because that's what basically put me in gaol from the start and I would never go back there. I'm worried about my health issues where, in five years' time, I'm going to have to go for another heart operation. If I get sent back in Philippines, I won't have all those money to help me to pay for my bills and everything. So, basically, I'm not going back to the same footpath like what I did years ago. And after I show you that, that I'm 100 per cent clean and I didn't touch anything since I was locked up.[44]
[44] transcript at 31–2.
In cross-examination the applicant was asked about the link between his offending and his drug use. His evidence was that his offending was not all linked to his drug use.[45] The applicant was then asked whether he had any explanation for his offending. His answer was:
No, I don't because that's all in the past and I've actually moved on from it and which I never really went back and did it again, you know.[46]
[45] transcript at 33–4.
[46] transcript at 34.
This answer that he had “moved on” was used a number of times by the applicant when asked about his offending. Asked about his repeated breaches of bail conditions, the applicant’s answer was, “Yes, it has happened in the past, that's why, yes, I moved on.”[47]
[47] transcript at 35.
Asked about his conviction for aggravated burglary, the applicant’s evidence was:
Around that time I was just hung out with the wrong crowd that I worked with and things happen and I ended up getting chucked in gaol for the first time on remand and basically, I moved on from that and moved back to Busselton.[48]
[48] transcript at 36.
At the hearing the applicant was asked to comment on his re-offending shortly after Bowden DCJ’s direction to him in sentencing him in 2008 to address his offending behaviour and to improve his lifestyle. The following exchange ensued:
APPLICANT:   Yes. I admit to those things that I did in the past, but that's the past,    where I actually moved on from it.
…
COUNSEL:     Okay, that's March 2008. In October 2008, you were caught with a    false number plate. That's not a very long time, is it?
APPLICANT:   That was over 10 years ago. It's something that I now - like, it's    something that I've moved on from now, like - - -
COUNSEL:     The problem, Mr Orario, is that seems to be what was said in 2008,    that you understood that you needed to move on from that?
APPLICANT:   Yes, that was - yes, yes, like, you can't go back - you can't talk about                     back in the days now because that happened in the past and - - -
COUNSEL:     This is very similar to what you're saying now though, you've said it    before?
APPLICANT:   Yes, but what happened in the past back in the day, I would have    been sitting in the detention centre as well, but I don't see, I don't   know why you're bringing up the past. The past is the past, like I did   my time in gaol, I done it all, I paid my fines and all. I don't know why   you're talking about the past. There's mad people out there killing   people, doing stupid things over and over.[49]
[49] transcript at 36–7.
The applicant gave the impression in his evidence of being dismissive of his criminal offending, treating it as something in the past from which to “move on”. He was largely unable to explain why he had offended and was reluctant to talk about his offending (see [67]–[70] above. This attitude, coupled with his denial of some of his offending, calling his partner a liar, (see [46]–[47] above) calling her mad[50] when she made complaints to police and accusing his stepdaughter Ms Wall of not telling the truth in her statement to the police, are of concern in considering the applicant’s rehabilitation and risk of reoffending. With this attitude, the applicant’s claims that he is remorseful and accepts responsibility for his offending, ring hollow. He does not, in any meaningful way, accept responsibility for his offending, nor does he have an appreciation of the seriousness of his criminal behaviour. While I accept that the applicant has undertaken a number of courses while he has been in prison and immigration detention, they do not appear to have had a material effect.
[50] transcript at 40.
In closing, Mr Gerrard summarised the Minister’s case on this issue as follows:
… the applicant's criminal history reveals an unrelenting disregard to the law and persistent criminality. It is of concern that he repeats similar offences and that those offences have escalated in gravity and number. The applicant's offending history is also recent. His most recent convictions were only last September. His last offence was committed last April. The fact that the applicant's residence in this country has been punctuated by persistent criminality is demonstrative of an entrenched disregard for authority. So the applicant comes to this tribunal having committed very serious offences not all that long ago, and having committed serious offences for the balance of his adult life. His criminal history is lengthy, longstanding, recent and serious. It is also getting worse. The courts have expressed frustration and pessimism with the applicant. He has been given and spurned every opportunity. The tribunal can have no confidence that the applicant would treat any opportunity this tribunal chose to gave him any differently.
There is a concern about an absence of objective evidence of formal rehabilitation. The applicant has given evidence and provided some statements that he's undertaken anger management and life skill courses, but the concern the respondent has - particularly with respect to the anger management course - is to what end? The applicant denies that he was ever aggressive to his partner. He denies that he committed the offences he was convicted of. He denies everything that she said. So to what end was the importance of the anger management course? It's not based and grounded in remorse, or an acceptance of culpability. That brings into question what use it was. And of course, we don't have any evidence other than the applicant's statement and the statement, I think, from other people, as to the fundamentals of the courses that the applicant has attended. We don't have completion certificates, we don't have evidence as to what they were comprised of, we don't have completion reports - how long they were, how responsive a participant the applicant was. The applicant's evidence contains a single line that the programs “assisted me in dealing with anger problems, also showing me how important life is and being a responsible person”. That may be so, but it is a long way from a sturdy foundation for accepting that the applicant has fundamentally changed. The respondent accepts that the applicant may not have had the opportunity to undertake further programs in prison due to availability, but that is not the question for this tribunal. The tribunal is charged in this respect in assessing what the risk of reoffending is, not an assessment of the opportunities available to the applicant. There has been no - there's no evidence of intensive counselling, there's no evidence of rehabilitation geared towards his substance abuse, there is no evidence in respect of cognitive thinking.
His evidence to the tribunal, in the respondent's submission, was argumentative and evasive and at times bordering on being hostile. He was quick to malign his ex-partner and her family. He called her a "mad woman" known to tell lies. He also said her sister lied and gave a false statement, and he said that Teliah gave a false statement.
…
… the applicant's behaviour whilst incarcerated can give the tribunal no cause for comfort. He has had a number of prison offences recorded against him, but most concerningly he has committed a large number of offences in breach of his family violence restraining order whilst incarcerated. That is telling beyond anything else. In the absence of any firm release plan, including formalized rehabilitation to address, in particular, his addiction history and violent history, his statements really are simply aspirational. It is also the case that the applicant has not been tested in the community. It is a common complaint from applicant's that this is not a fair assessment, but such a complaint ignores the purpose of the investigation. The assessment of the risk of recidivism is an important component of the requirement to consider the protection of the Australian community. That, in turn, should be viewed in the context of the government's stated commitment to protect the Australian community from harm. Consequently, it requires a frank and objective assessment of the risk. It is not a question as to whether an applicant has been given a fair opportunity to demonstrate rehabilitation.
It is a requirement to consider whether there is any objective evidence that the Australian community is at risk, the nature of the harm that the community is at risk from, the level of that risk, and an assessment as to whether the community should be compelled to tolerate that risk. Having regard to that, there really is no objective reassurance. The applicant falls at every hurdle. He has persistently committed serious offences, committing 68 offences over 15 years and covering the field of drug offences, driving offences, property and violent offences. Unprompted today, he gave evidence that he had engaged in selling drugs, not specifically possession. He had an entrenched drug addiction. There is concern expressed by the courts - considerable concern. Nothing has deterred him from his litany of offending: not judicial warnings or sanction, not imprisonment, not his long-term relationship, his family or his children. The tribunal should be entirely pessimistic of prospects of reform in the absence of any objective evidence in support of such reform, and that is doubly the case whereas here the applicant simply does not accept that what he did was wrong. For all these reasons, the respondent contends that there remains a substantial risk of recidivism, and one which the Australian community should not be expected to tolerate.[51]
[51] transcript at 88–90.
I agree with the Minister’s assessment. Despite the applicant having undertaken courses to address his anger management and his drug and alcohol issues,[52] in my assessment the applicant has little understanding or acceptance of the seriousness of his past behaviour. He has repeatedly been given warnings by the courts and the opportunity to address his offending behaviour and issues with anger management and substance abuse. He has failed to heed those warnings or address his behaviour. He can take little credit for the fact that, according to him at least, he has abstained from drugs and alcohol while in prison and in immigration detention. Even if that is the case, it is hardly a guide to how the applicant will behave if he is returned to the community where alcohol certainly, and drugs probably, are freely available.
[52] transcript at 30–1.
There are factors that may reduce the risk of the applicant reoffending in the same way that he has in the past. The first is that his relationship with his former partner (as she currently is), the mother of his children, appears to be better now than it was when the applicant was offending against her. The majority of the applicant’s offences were committed against his partner or involved breaching the FVROs issued for her protection. If those offences are excised from the applicant’s criminal record, one is basically left with one offence of aggravated burglary and relatively minor traffic, drug and public nuisance-type offences. The applicant’s former partner supports the applicant remaining in Australia and, it seems from her statement, from the applicant’s evidence and from the evidence of Ms Wall, that she and the applicant are not intending to resume their relationship, which the applicant described as toxic.
Another factor that may reduce the likelihood of the applicant reoffending is that he has an offer of employment if he is allowed to remain in Australia. In his statement dated 21 October 2021,[53] Kenneth Rangi, a scaffolding supervisor with a mining services company doing contract work for BHP and Rio Tinto, stated that he has known the applicant for just over five years and can provide him with a job in scaffolding. During his time in prison and immigration detention, the applicant has completed courses in working at heights, working in confined spaces, fire safety and agriculture[54] and “all tickets required to work in the mines that I organised with a job provider.”[55] These qualifications should equip the applicant for the type of work offered by Mr Rangi. As noted at [35] above, in the past, maintaining regular work has been associated with the applicant not offending.
[53] A17.
[54] A6.
[55] A2.
The other factor that I am prepared to take into account in assessing the risk of the applicant offending as he has in the past, is the support that is offered by those who have provided statements to the department and in these proceedings. A significant number of those statements referred to the cause of much of the applicant’s offending in the past as being his relationship with his former partner who, based on these statement and the evidence of Ms Wall, has drug, alcohol and mental health issues of her own. Employment and the applicant no longer being in a relationship with his former partner are, in my view, going to be significant factors in reducing the likelihood of the applicant returning to his former ways.
I assess the likelihood of the applicant engaging in further criminal or other serious conduct as moderate.
I find that the nature and seriousness of the applicant’s offending and other conduct to be serious, the nature of the harm that would be caused if the applicant were to engage in that conduct again to be serious and the likelihood of the applicant engaging in further criminal behaviour as being moderate. I find that the first primary consideration, the protection of the Australian community, weighs against the revocation of the cancellation of the applicant’s visa and that moderate weight should be given to this consideration.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
Paragraph 8.2 of Direction 90 relevantly provides:
(1) The Government has 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 (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
a)    a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)    there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3) In considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:
a)    the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b)    the cumulative effect of repeated acts of family violence;
c)    rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
…
Paragraph 4(1) of Direction 90 relevantly defines family violence as follows:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a)    an assault; or
b)    a sexual assault or other sexually abusive behaviour; or
c)    stalking; or
d)    repeated derogatory taunts; or
e)    intentionally damaging or destroying property; or
…
(Original emphasis.)
The applicant has engaged in family violence (see [50(a)] above). Looking at the specific considerations identified in para 8.2(3) of Direction 90:
(a)(Paragraph 8.2(3)(a)) – it is difficult to gauge the frequency of the applicant’s family violence conduct. In his statement[56] quoted at [64] above, he refers to “the injuries I inflicted on her during our time together”. There are also his partner’s and Ms Wall’s statements to police quoted at [45]–[47] above which indicate that the applicant’s aggressive and occasionally violent behaviour towards his partner and his stepdaughter goes back a number of years. There is also the fact that the applicant’s partner was granted FVROs in July 2017 and December 2019 from which I infer that the applicant’s partner had cause to be fearful of the applicant’s behaviour.[57] The last of the acts of family violence, the April 2019 assault described by Magistrate Coleman as “vicious”, shows that there was a trend of increasing seriousness.
(b)(Paragraph 8.2(3)(b)) – the cumulative effect of this behaviour is, in my view, indicative of the applicant’s abusive character.
(c)(Paragraph 8.2(3)(c)) – while the applicant has undertaken courses while he has been in prison and immigration detention, for the reasons noted at [71] above, I am not satisfied that these courses have had any significant impact on the applicant’s underlying attitude. The considerations identified in sub-paras 8.2(3)(c)(i) and (ii) are addressed above. In relation to the consideration identified in sub-para (iii), as noted above, the applicant, in my view, has not made any sufficient effort to identify the factors that have caused him to engage in family violence and to address those factors. As noted above (see [71] above) the applicant’s attitude to his offending seemed to be that he did not need to address the causes of his repeated offending and that he had “moved on” from those offences. As his record shows, however, in most cases he had “moved on” to reoffend in the same way.
(d)The applicant had been warned by the courts of the consequences of his re-offending, particularly in relation to repeat breaches of protective bail conditions and FVROs. That was particularly the case in relation to the several times that courts imposed suspended sentences or community-based orders. In sentencing the applicant on multiple breaches of the FVRO on 11 October 2018, Magistrate Shakleton gave the applicant a clear warning of the consequences of further breaches (see [39] above). As his record shows, the applicant paid no heed to these warnings. There is no evidence that the applicant was ever warned about the possible consequences to his visa status of continued offending.
[56] A2.
[57] The definition of family violence in para 4(1) of Direction 90 includes “causes the family member to be fearful.”

I take his Honour to be saying that, in certain circumstances, in particular where the victim of the applicant’s offending supports the revocation of the cancellation, that that is a matter to be taken into account under this consideration. That would be so even if the victim’s views are also relevant to other considerations under Direction 90 such as links to the Australian community, noting Colvin J’s comments on the need to avoid double counting.[104]
[104] CGX20 at [37]; see also Wickramakarulu Arachchi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3146 at [142].
I also note that CGX20 was dealing with Direction 79 which directed the decision-maker to consider the “[i]mpact of a decision not to revoke on … victims”. While Colvin J at first instance and the Full Court on appeal agreed that there was in effect a drafting error and the provision was meant to direct the decision-maker’s consideration to the impact of a decision to revoke, Direction 90, correcting the “drafting error”, now refers to “the impact of the section … 501CA decision on … victims”. There is no indication in Direction 90 that the decision-maker is only to consider the impact of the decision going a particular way or to consider the impact in their capacity as victims only. Colvin J’s comments in CGX20 quoted above would seem to indicate otherwise. This leaves the decision-maker open to consider the impact on victims of a decision to revoke and a decision not to revoke and also to consider the views of victims in capacities other than as victims.
I do not see anything in the wording of Direction 90 or the judgment of Colvin J in CGX20 (or the Full Court’s decision on appeal in CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[105]) to support Mr Gerrard’s proposition that, in circumstances where the victim of an applicant’s offending supports the applicant staying in Australia, this consideration cannot be one that weighs in favour of revocation.
[105] [2021] FCAFC 69.
I am, however, conscious of the “sad reality” as Colvin J described it, of victims of family violence often expressing support for the perpetrator of the violence in these situations. I am also conscious of not double-counting the applicant’s former partner’s support for the applicant remaining in Australia which I do take into account under the consideration of links to the Australian community. Given those considerations, while I find that this consideration weighs in favour of revocation of the cancellation of the Applicant’s visa, only minor weight should be given to it.
Links to the Australian community (para 9.4)
Paragraph 9.4 of Direction 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 and 9.4.2 below.
Strength, nature and duration of ties to Australia (para 9.4.1)
Paragraph 9.4.1 of Direction 90 is as follows:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant has lived in Australia since 1994. He arrived as a ten-year-old, so he can be treated as having arrived as a young child.
The applicant started offending in 2005 when he would have been 21 years old. The applicant appears to have been gainfully employed for relatively extended periods and could therefore be considered to have contributing positively to the Australian community during that time.
I give weight to the fact that the applicant has been in Australia now for 27 years.
It is evident from the significant number and content of the statements and letters of support provided by the applicant that he has deep social links with Australian citizens and/or Australian permanent residents. The applicant’s mother and stepfather, his sisters and other members of his extended family live in Australia.[106] Most importantly, his two children and their mother live in Australia as does his stepdaughter to whom he has, in her words, been a “father figure”.[107]
[106] R1, G5/110.
[107] A5.
It is clear from the statements that have been provided and the evidence of the applicant’s stepdaughter Ms Wall, that there would be significant emotional impact on those close to the applicant if he were forced to return to the Philippines. This would especially be the case with his children, their mother, Ms Wall, the applicant’s stepfather and mother. I also accept that there would likely be an adverse financial impact on his former partner if the applicant were forced to leave Australia. I accept that the applicant has assisted his former partner in the past by providing for their two children and would be likely to do so again if he were allowed to stay in Australia.
The Minister notes that the applicant has been ordinarily resident in Australia for 26 years. His partner, children and other family members reside here. The Minister says, however, that his tenure in this country has been punctuated by persistent criminality, substance abuse and other anti-social behaviour. His links to this country should be viewed through that prism.
The Minister concedes that the applicant has reasonably strong ties to Australia, albeit not to the extent that they should outweigh the protection and expectations of the Australian community in the final weighing exercise.
Impact on Australian business interests (para 9.4.2)
Paragraph 9.4.2 provides:
(3) 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.
The applicant made no submission on this consideration. The Minister submitted that the applicant’s employment history has not been such that his removal from Australia would mean that the successful completion of a major project or the delivery of an important service in Australia would be compromised.
Overall, the Minister accepts that the applicant has reasonably strong ties to Australia, and that some weight should be given to this “other consideration” of links to the Australian community in favour of revocation of the visa cancellation decision.
I find that this consideration, links to the Australian community, weighs in favour of revocation of the cancellation of the applicant’s visa and that moderate weight should be given to it.
THE WEIGHING EXERCISE
Direction 90 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account. It provides:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[108] and the Full Court of the Federal Court judgment in Minister for Home Affairs v HSKJ.[109]
[108] [2018] FCA 594; (2018) 74 AAR 545.
[109] [2018] FCAFC 217; (2018) 266 FCR 591.
Colvin J’s judgment in Suleiman was considered by Wigney J in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[110] At [21] Wigney J cited [23] of Colvin J’s judgment which was as follows:
The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non‑refoulement obligations). It requires both primary and other considerations to be given ‘appropriate weight’. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are ‘normally’ given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
(Emphasis omitted.)
[110] [2021] FCA 775.
Wigney J then observed at [22]:
It is the last sentence of this paragraph of Suleiman which has given rise to the issue in this case. That issue will be discussed in more detail later. It suffices at this point to note that, with the greatest respect to Colvin J, this analysis of paragraph 8 of the relevant direction tends to overcomplicate or over intellectualise the issue. More significantly, it may lead decision-makers into error. Paragraph 8 of Direction no. 79 is expressed in simple terms. Relevantly, decision-makers must take into account the primary and other considerations that are relevant to the individual case and, when it comes to weighing up the relevant considerations, have regard to three relevant principles: first, both primary and other considerations may weigh in favour of, or against, whether or not to revoke a cancellation of a visa; second, primary conditions should generally be given greater weight than other considerations; and third, one or more primary considerations may outweigh other considerations. It is difficult to see why any further elaboration of those simple principles or propositions is necessary or warranted.
(Emphasis omitted.)
The tribunal in CZCV at [164] summarised the legal position as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so...
I adopt the approach directed by the above cases.
I find that the first primary consideration, the protection of the Australian community, for the reasons set out above, weighs against the revocation of the cancellation of the applicant’s visa and that moderate weight should be given to this consideration.
The second primary consideration, family violence, for the reasons set out above weighs against revocation of the cancellation of his visa. I assess that moderate weight should be given to this consideration.
I find that the third primary consideration, the best interests of minor children, weighs heavily in favour of the revocation of the cancellation of the applicant’s visa.
The fourth primary consideration, the expectations of the Australian community, as it must, weighs against the revocation of the cancellation of the applicant’s visa and I find that moderate weight should be given to this consideration.
In relation to the relevant “other considerations” identified in Direction 90, I find that the consideration of international non-refoulement obligations is not relevant in the present case and therefore is to be given neutral weight.
The consideration of the extent of impediments weighs in favour of the revocation of the cancellation of the applicant’s visa and I find that moderate weight should be given to this consideration.
I find that the consideration of impact on victims, in this case the applicant’s former partner, who supports the revocation of the cancellation, weighs in favour of revocation of the cancellation but that only minor weight should be given to it.
The consideration of links to the Australian community weighs in favour of revocation of the cancellation of the applicant’s visa and moderate weight should be given to it.
Having weighed the considerations in favour of the revocation of the cancellation of the applicant’s visa and the considerations against the revocation of the cancellation of the applicant’s visa, I find that the considerations in favour of revocation, particularly the best interests of the children, outweigh those against revocation. Accordingly, I find that there is another reason why the original decision should be revoked.
DECISION
The decision of the delegate of the Minister dated 11 October 2021 not to revoke the cancellation of the applicant's Class BF transitional (permanent) visa pursuant to s 501CA(4) of the Act is set aside and substituted with the decision that the cancellation of the applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.

I certify that the preceding 165 (one hundred and sixty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...[SGD].....................................................................
Associate
Dated: 20 December 2021

Date of hearing: 6 December 2021 and 10 December 2021

Advocate for the Applicant: Mr G Georgatos

Counsel for the Respondent: Mr A Gerrard

Solicitors for the Respondent: Australian Government Solicitor
ANNEXURE

Court

Result date

Offence

Offence date

Result

Bunbury Magistrates Court

10 September 2020

Breach of SIO (order of 11 October 2018)

14 August 2018

Four months’ imprisonment (concurrent) from 10 September 2020; SIO expired and resentenced

Bunbury Magistrates Court

10 September 2020

Breach of SIO (order of 11 October 2018)

15 August 2018

Four months’ imprisonment (concurrent) from 10 September 2020; SIO expired and resentenced

Bunbury Magistrates Court

10 September 2020

Breach of SIO (order of 11 October 2018)

8 September 2018

Four months’ imprisonment (concurrent) from 10 September 2020; SIO expired and resentenced

Bunbury Magistrates Court

10 September 2020

Breach family violence restraining order or violence restraining order

3 March 2019

Six months’ imprisonment (concurrent) from 27 December 2019

Bunbury Magistrates Court

10 September 2020

Breach family violence order or violence restraining order

30 November 2018

Six months’ imprisonment (concurrent) from

Bunbury Magistrates Court

10 September 2020

Breach family violence restraining order or violence restraining order

27 November 2018

Six months’ imprisonment (concurrent) from 27 December 2019

Bunbury Magistrates Court

10 September 2020

Breach family violence restraining order or violence restraining order

2 December 2018

Six months’ imprisonment (concurrent) from 27 December 2019

Bunbury Magistrates Court

10 September 2020

Breach family violence restraining order or violence restraining order

25 November 2018

Six months’ imprisonment (concurrent) from 27 December 2019

Bunbury Magistrates Court

10 September 2020

Breach family violence restraining order or violence restraining order

23 April 2019

Six month’s imprisonment (concurrent) from 27 December 2019

Bunbury Magistrates Court

10 September 2020

Breach family violence restraining order or violence restraining order

1 December 2018

Six months’ imprisonment (concurrent) from 27 December 2019

Bunbury Magistrates Court

10 September 2020

Breached a family violence restraining order

13 April 2020

Two months’ imprisonment (concurrent) from 27 December 2019

Bunbury Magistrates Court

10 September 2020

Breached a family violence restraining order

8 April 2020

Two months’ imprisonment (concurrent) from 27 December 2019

Bunbury Magistrates Court

10 September 2020

Breached a family violence restraining order

7 April 2020

Two months’ imprisonment (concurrent) from 27 December 2019

Bunbury Magistrates Court

10 September 2020

Breached a family violence restraining order

10 April 2020

Two months’ imprisonment (concurrent) from 27 December 2019

Bunbury Magistrates Court

10 September 2020

Breached a family violence restraining order

11 April 2020

Two months’ imprisonment (concurrent) from 27 December 2019

Bunbury Magistrates Court

10 September 2020

Breached a family violence restraining order

12 April 2020

Two months’ imprisonment (concurrent) from 27 December 2019

Bunbury Magistrates Court

10 September 2020

Breached a family violence restraining order

16 April 2020

Two months’ imprisonment (concurrent) from 27 December 2019

Bunbury Magistrates Court

10 September 2020

Breached a family violence restraining order

15 April 2020

Two months’ imprisonment (concurrent) from 27 December 2019

Bunbury Magistrates Court

10 September 2020

Breached a family violence restraining order

14 April 2020

Two months’ imprisonment (concurrent) from 27 December 2019

Bunbury Magistrates Court

10 September 2020

Breached a family violence restraining order

9 April 2020

Two months’ imprisonment (concurrent) from 27 December 2019

Bunbury Magistrates Court

10 September 2020

Unlawfully assault and thereby did bodily harm with circumstances of aggravation

23 April 2019

12 months’ imprisonment (concurrent) from 27 December 2019

Bunbury Magistrates Court

23 March 2020

No authority to drive (never held)

26 December 2019

$100 fine

Bunbury Magistrates Court

11 October 2018

Breach family violence restraining order or violence restraining order

15 August 2018

Suspended imprisonment order – original term of four months suspended for 12 months from 11 October 2018 (cumulative)

Bunbury Magistrates Court

11 October 2018

Breach family violence restraining order

14 August 2018

Suspended imprisonment order – original term of four months suspended for 12 months from 11 October 2018 (concurrent)

Bunbury Magistrates Court

11 October 2018

Breach family violence restraining order or violence restraining order

8 September 2018

Suspended imprisonment order – original term of four months suspended for 12 months from 11 October 2018

Bunbury Magistrates Court

11 October 2018

Breach of protective bail conditions

8 September 2018

No sentence

Bunbury Magistrates Court

13 February 2018

Breach family violence restraining order or violence restraining order

23 August 2017

$800 fine

Bunbury Magistrates Court

13 February 2018

Breach family violence restraining order or violence restraining order

24 August 2017

$800 fine

Bunbury Magistrates Court

4 September 2017

Breach family violence restraining order or violence restraining order

3 September 2017

$800 fine

Bunbury Magistrates Court

4 September 2017

Breach of protective bail conditions

3 September 2017

$800 fine

Busselton Magistrates Court

8 August 2017

Possess a prohibited drug (cannabis)

10 July 2017

$750 fine

Busselton Magistrates Court

8 August 2017

Possess a prohibited drug (methylamphetamine)

10 July 2017

$400 fine

Busselton Magistrates Court

8 August 2017

Possessed drug paraphernalia in or on which there was a prohibited drug or plant

10 July 2017

$200 fine

Busselton Magistrates Court

8 August 2017

Unlicensed person possess firearm/ ammunition

10 July 2017

$300 fine

Busselton Magistrates Court

24 August 2016

Used an unlicensed vehicle; no motor driver’s licence

4 June 2016

$100 fine

Busselton Magistrates Court

24 August 2016

No authority to drive (never held); no motor driver’s licence

4 June 2016

$600 fine

Busselton Magistrates Court

11 April 2016

Possess a prohibited drug (cannabis)

9 February 2016

$500 fine

Busselton Magistrates Court

21 December 2015

No authority to drive (never held)

28 October 2015

$600 fine

Bunbury District Court of Western Australia

7 August 2009

Breach of conditional suspended sentence (order of 10 March 2008)

Conditional suspended imprisonment order; 16 months imprisonment suspended for 18 months; conditions: program and supervision

Bunbury Magistrates Court

23 March 2009

Breach of bail undertaking

4 November 2008

$600 fine (global)

Bunbury Magistrates Court

23 March 2009

Breach of bail undertaking

13 October 2008

$600 fine (global)

Bunbury Magistrates Court

23 March 2009

Breach of bail undertaking

27 January 2009

$100 fine

Bunbury Magistrates Court

23 March 2009

No authority to drive; no motor driver’s licence

10 October 2008

$300 fine (global); motor driver’s licence disqualified for three months (concurrent)

Bunbury Magistrates Court

23 March 2009

Unlicensed vehicle (owner/driver); no motor driver’s licence

10 October 2008

$300 fine (global)

Bunbury Magistrates Court

23 March 2009

False number plate (not issued for that vehicle); no motor driver’s licence

10 October 2008

$300 fine (global); motor driver’s licence disqualified for three months (mandatory) (concurrent)

Bunbury Magistrates Court

23 March 2009

Driver fail to wear seat belt; no motor driver’s licence

19 November 2008

$600 fine (global)

Bunbury Magistrates Court

23 March 2009

Driver fails to ensure passengers under 16 are restrained; no motor driver’s licence

19 November 2008

$600 fine (global)

Bunbury Magistrates Court

23 March 2009

Driver fails to ensure child wears seat belt; no motor driver’s licence

19 November 2008

$600 fine (global)

Bunbury Magistrates Court

23 March 2009

Ensure child under 12 months wear child restraint; no motor driver’s licence

19 November 2008

$600 fine (global)

Bunbury Magistrates Court

23 March 2009

No authority to drive (fines suspended); no motor driver’s licence

19 November 2008

$600 fine (global); motor driver’s licence disqualified for three months (cumulative)

Perth District Court of Western Australia

10 March 2008

Aggravated burglary and commit offence in dwelling

Conditional suspended imprisonment order: 16 months imprisonment suspended for 24 months

Perth Magistrates Court

10 March 2008

Breach of bail undertaking

23 December 2007

$1,000 fine

Perth Magistrates Court

10 March 2008

Give false personal details to police

23 December 2007

$500 fine

Bunbury Magistrates Court

27 July 2007

Breach of intensive supervision order (four counts)

Count 1: $500 fine; Counts 2–3: $250 fine; Count 4: $200 fine

Bunbury Magistrates Court

27 July 2007

Breach of bail (fail to appear soon after)

17 October 2006

$250 fine

Bunbury Magistrates Court

27 July 2007

Breach of bail (fail to appear soon after)

9 February 2007

$250 fine

Bunbury Magistrates Court

27 July 2007

Breach of bail (fail to appear soon after)

7 May 2007

$250 fine

Bunbury Magistrates Court

27 July 2007

No driver’s licence (fines suspension); no motor driver’s licence

21 February 2007

$250 fine; motor driver’s licence disqualified for three months (mandatory) (concurrent)

Bunbury Magistrates Court

27 July 2007

False name and address; no motor driver’s licence

21 February 2007

$250 fine; motor driver’s licence disqualified for three months (mandatory) (concurrent)

Busselton Magistrates Court

26 September 2006

Breach of bail undertaking

5 December 2005

Intensive supervision order for 12 months

Busselton Magistrates Court

26 September 2006

Breach of bail undertaking

10 January 2006

Intensive supervision order for 12 months

Busselton Magistrates Court

26 September 2006

Common assault (“agg 01/12/04”)

12 November 2005

Intensive supervision order for 12 months

Busselton Magistrates Court

26 September 2006

Possess a prohibited drug (cannabis)

18 July 2006

Intensive supervision order for 12 months

Busselton Magistrates Court

5 July 2005

No motor driver’s licence – under fines suspension

20 June 2005

$300 fine; disqualified from holding or obtaining a motor driver’s licence for three months (mandatory) (global penalty)

Busselton Magistrates Court

5 July 2005

Refuse to supply or provide false name and address

20 June 2005

$300 fine; disqualified from holding or obtaining a motor driver’s licence for three months (mandatory) (global penalty)

Busselton Magistrates Court

5 July 2005

Unlicensed vehicle

20 June 2005

$300 fine (global)

Busselton Magistrates Court

5 July 2005

Refuse to supply or provide false name and address

20 June 2005

$300 fine (global penalty); disqualified from holding or obtaining a motor driver’s licence for three months (mandatory) (concurrent)

Busselton Magistrates Court

5 July 2005

Unlicensed vehicle

20 June 2005

$300 fine (global penalty)

Busselton Magistrates Court

20 June 2005

Drive contrary to learner’s permit

9 June 2005

$100 fine

Date of hearing:	6 December 2021 and 10 December 2021
Advocate for the Applicant:	Mr G Georgatos
Counsel for the Respondent:	Mr A Gerrard
Solicitors for the Respondent:	Australian Government Solicitor

Court	Result date	Offence	Offence date	Result
Bunbury Magistrates Court	10 September 2020	Breach of SIO (order of 11 October 2018)	14 August 2018	Four months’ imprisonment (concurrent) from 10 September 2020; SIO expired and resentenced
Bunbury Magistrates Court	10 September 2020	Breach of SIO (order of 11 October 2018)	15 August 2018	Four months’ imprisonment (concurrent) from 10 September 2020; SIO expired and resentenced
Bunbury Magistrates Court	10 September 2020	Breach of SIO (order of 11 October 2018)	8 September 2018	Four months’ imprisonment (concurrent) from 10 September 2020; SIO expired and resentenced
Bunbury Magistrates Court	10 September 2020	Breach family violence restraining order or violence restraining order	3 March 2019	Six months’ imprisonment (concurrent) from 27 December 2019
Bunbury Magistrates Court	10 September 2020	Breach family violence order or violence restraining order	30 November 2018	Six months’ imprisonment (concurrent) from
Bunbury Magistrates Court	10 September 2020	Breach family violence restraining order or violence restraining order	27 November 2018	Six months’ imprisonment (concurrent) from 27 December 2019
Bunbury Magistrates Court	10 September 2020	Breach family violence restraining order or violence restraining order	2 December 2018	Six months’ imprisonment (concurrent) from 27 December 2019
Bunbury Magistrates Court	10 September 2020	Breach family violence restraining order or violence restraining order	25 November 2018	Six months’ imprisonment (concurrent) from 27 December 2019
Bunbury Magistrates Court	10 September 2020	Breach family violence restraining order or violence restraining order	23 April 2019	Six month’s imprisonment (concurrent) from 27 December 2019
Bunbury Magistrates Court	10 September 2020	Breach family violence restraining order or violence restraining order	1 December 2018	Six months’ imprisonment (concurrent) from 27 December 2019
Bunbury Magistrates Court	10 September 2020	Breached a family violence restraining order	13 April 2020	Two months’ imprisonment (concurrent) from 27 December 2019
Bunbury Magistrates Court	10 September 2020	Breached a family violence restraining order	8 April 2020	Two months’ imprisonment (concurrent) from 27 December 2019
Bunbury Magistrates Court	10 September 2020	Breached a family violence restraining order	7 April 2020	Two months’ imprisonment (concurrent) from 27 December 2019
Bunbury Magistrates Court	10 September 2020	Breached a family violence restraining order	10 April 2020	Two months’ imprisonment (concurrent) from 27 December 2019
Bunbury Magistrates Court	10 September 2020	Breached a family violence restraining order	11 April 2020	Two months’ imprisonment (concurrent) from 27 December 2019
Bunbury Magistrates Court	10 September 2020	Breached a family violence restraining order	12 April 2020	Two months’ imprisonment (concurrent) from 27 December 2019
Bunbury Magistrates Court	10 September 2020	Breached a family violence restraining order	16 April 2020	Two months’ imprisonment (concurrent) from 27 December 2019
Bunbury Magistrates Court	10 September 2020	Breached a family violence restraining order	15 April 2020	Two months’ imprisonment (concurrent) from 27 December 2019
Bunbury Magistrates Court	10 September 2020	Breached a family violence restraining order	14 April 2020	Two months’ imprisonment (concurrent) from 27 December 2019
Bunbury Magistrates Court	10 September 2020	Breached a family violence restraining order	9 April 2020	Two months’ imprisonment (concurrent) from 27 December 2019
Bunbury Magistrates Court	10 September 2020	Unlawfully assault and thereby did bodily harm with circumstances of aggravation	23 April 2019	12 months’ imprisonment (concurrent) from 27 December 2019
Bunbury Magistrates Court	23 March 2020	No authority to drive (never held)	26 December 2019	$100 fine
Bunbury Magistrates Court	11 October 2018	Breach family violence restraining order or violence restraining order	15 August 2018	Suspended imprisonment order – original term of four months suspended for 12 months from 11 October 2018 (cumulative)
Bunbury Magistrates Court	11 October 2018	Breach family violence restraining order	14 August 2018	Suspended imprisonment order – original term of four months suspended for 12 months from 11 October 2018 (concurrent)
Bunbury Magistrates Court	11 October 2018	Breach family violence restraining order or violence restraining order	8 September 2018	Suspended imprisonment order – original term of four months suspended for 12 months from 11 October 2018
Bunbury Magistrates Court	11 October 2018	Breach of protective bail conditions	8 September 2018	No sentence
Bunbury Magistrates Court	13 February 2018	Breach family violence restraining order or violence restraining order	23 August 2017	$800 fine
Bunbury Magistrates Court	13 February 2018	Breach family violence restraining order or violence restraining order	24 August 2017	$800 fine
Bunbury Magistrates Court	4 September 2017	Breach family violence restraining order or violence restraining order	3 September 2017	$800 fine
Bunbury Magistrates Court	4 September 2017	Breach of protective bail conditions	3 September 2017	$800 fine
Busselton Magistrates Court	8 August 2017	Possess a prohibited drug (cannabis)	10 July 2017	$750 fine
Busselton Magistrates Court	8 August 2017	Possess a prohibited drug (methylamphetamine)	10 July 2017	$400 fine
Busselton Magistrates Court	8 August 2017	Possessed drug paraphernalia in or on which there was a prohibited drug or plant	10 July 2017	$200 fine
Busselton Magistrates Court	8 August 2017	Unlicensed person possess firearm/ ammunition	10 July 2017	$300 fine
Busselton Magistrates Court	24 August 2016	Used an unlicensed vehicle; no motor driver’s licence	4 June 2016	$100 fine
Busselton Magistrates Court	24 August 2016	No authority to drive (never held); no motor driver’s licence	4 June 2016	$600 fine
Busselton Magistrates Court	11 April 2016	Possess a prohibited drug (cannabis)	9 February 2016	$500 fine
Busselton Magistrates Court	21 December 2015	No authority to drive (never held)	28 October 2015	$600 fine
Bunbury District Court of Western Australia	7 August 2009	Breach of conditional suspended sentence (order of 10 March 2008)	Conditional suspended imprisonment order; 16 months imprisonment suspended for 18 months; conditions: program and supervision
Bunbury Magistrates Court	23 March 2009	Breach of bail undertaking	4 November 2008	$600 fine (global)
Bunbury Magistrates Court	23 March 2009	Breach of bail undertaking	13 October 2008	$600 fine (global)
Bunbury Magistrates Court	23 March 2009	Breach of bail undertaking	27 January 2009	$100 fine
Bunbury Magistrates Court	23 March 2009	No authority to drive; no motor driver’s licence	10 October 2008	$300 fine (global); motor driver’s licence disqualified for three months (concurrent)
Bunbury Magistrates Court	23 March 2009	Unlicensed vehicle (owner/driver); no motor driver’s licence	10 October 2008	$300 fine (global)
Bunbury Magistrates Court	23 March 2009	False number plate (not issued for that vehicle); no motor driver’s licence	10 October 2008	$300 fine (global); motor driver’s licence disqualified for three months (mandatory) (concurrent)
Bunbury Magistrates Court	23 March 2009	Driver fail to wear seat belt; no motor driver’s licence	19 November 2008	$600 fine (global)
Bunbury Magistrates Court	23 March 2009	Driver fails to ensure passengers under 16 are restrained; no motor driver’s licence	19 November 2008	$600 fine (global)
Bunbury Magistrates Court	23 March 2009	Driver fails to ensure child wears seat belt; no motor driver’s licence	19 November 2008	$600 fine (global)
Bunbury Magistrates Court	23 March 2009	Ensure child under 12 months wear child restraint; no motor driver’s licence	19 November 2008	$600 fine (global)
Bunbury Magistrates Court	23 March 2009	No authority to drive (fines suspended); no motor driver’s licence	19 November 2008	$600 fine (global); motor driver’s licence disqualified for three months (cumulative)
Perth District Court of Western Australia	10 March 2008	Aggravated burglary and commit offence in dwelling	Conditional suspended imprisonment order: 16 months imprisonment suspended for 24 months
Perth Magistrates Court	10 March 2008	Breach of bail undertaking	23 December 2007	$1,000 fine
Perth Magistrates Court	10 March 2008	Give false personal details to police	23 December 2007	$500 fine
Bunbury Magistrates Court	27 July 2007	Breach of intensive supervision order (four counts)	Count 1: $500 fine; Counts 2–3: $250 fine; Count 4: $200 fine
Bunbury Magistrates Court	27 July 2007	Breach of bail (fail to appear soon after)	17 October 2006	$250 fine
Bunbury Magistrates Court	27 July 2007	Breach of bail (fail to appear soon after)	9 February 2007	$250 fine
Bunbury Magistrates Court	27 July 2007	Breach of bail (fail to appear soon after)	7 May 2007	$250 fine
Bunbury Magistrates Court	27 July 2007	No driver’s licence (fines suspension); no motor driver’s licence	21 February 2007	$250 fine; motor driver’s licence disqualified for three months (mandatory) (concurrent)
Bunbury Magistrates Court	27 July 2007	False name and address; no motor driver’s licence	21 February 2007	$250 fine; motor driver’s licence disqualified for three months (mandatory) (concurrent)
Busselton Magistrates Court	26 September 2006	Breach of bail undertaking	5 December 2005	Intensive supervision order for 12 months
Busselton Magistrates Court	26 September 2006	Breach of bail undertaking	10 January 2006	Intensive supervision order for 12 months
Busselton Magistrates Court	26 September 2006	Common assault (“agg 01/12/04”)	12 November 2005	Intensive supervision order for 12 months
Busselton Magistrates Court	26 September 2006	Possess a prohibited drug (cannabis)	18 July 2006	Intensive supervision order for 12 months
Busselton Magistrates Court	5 July 2005	No motor driver’s licence – under fines suspension	20 June 2005	$300 fine; disqualified from holding or obtaining a motor driver’s licence for three months (mandatory) (global penalty)
Busselton Magistrates Court	5 July 2005	Refuse to supply or provide false name and address	20 June 2005	$300 fine; disqualified from holding or obtaining a motor driver’s licence for three months (mandatory) (global penalty)
Busselton Magistrates Court	5 July 2005	Unlicensed vehicle	20 June 2005	$300 fine (global)
Busselton Magistrates Court	5 July 2005	Refuse to supply or provide false name and address	20 June 2005	$300 fine (global penalty); disqualified from holding or obtaining a motor driver’s licence for three months (mandatory) (concurrent)
Busselton Magistrates Court	5 July 2005	Unlicensed vehicle	20 June 2005	$300 fine (global penalty)
Busselton Magistrates Court	20 June 2005	Drive contrary to learner’s permit	9 June 2005	$100 fine