Richey and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 3338

Richey and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3338 (12 October 2022)
Division:GENERAL DIVISION
File Number: 2022/5936
Re:Karl Richey

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Member M East
Date:12 October 2022
Place:Perth

The decision of the delegate of the Respondent dated 19 July 2022 not to revoke the cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
...............[Sgd]............................................
Member M East
Catchwords
MIGRATION – Migration Act s 501CA(4) – decision of delegate of Minister not to revoke cancellation of applicant’s visa – character test – whether there is ‘another reason’ to revoke cancellation of applicant’s visa – Ministerial Direction No. 90 – alcohol abuse – domestic violence – first primary consideration protection of Australian community weighs heavily in favour of cancellation – second primary consideration family violence weighs heavily in favour of cancellation – there is not another reason to revoke the cancellation of the applicant’s visa – reviewable decision affirmed
Legislation
Migration Act 1958 (Cth) – ss 197A, 499, 499(1), 499(2A), 500(1)(ba), 501, 501(1), 501(2), 501(3A), 501(6), 501(6)(a), 501(6)(c), 501(7), 501(7A), 501(7)(c), 501(7)(d), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
Cases
CZCV and Minister for Home Affairs [2019] AATA 91
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
Garland and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2022
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
Secondary Materials
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, 5.1(3), 5.1(4), 5.2, 5.2(2), 5.2(3), 5.2(4), 5.2(5), 6, 7, 8, 8.1, 8.1.1, 8.1.1(1)(a), 8.1.1(a)(i), 8.1.(a)(ii), 8.1.1(1)(a)(iii), 8.1.1(1)(b), 8.1.1(1)(b)(ii), 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(2)(a), 8.1.2(2)(b), 8.2, 8.2(3), 8.2.1, 8.3, 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, 9.3, 9.4, 9.4.1, 9.4.2
REASONS FOR DECISION
Member M East
12 October 2022
The Application

The Applicant seeks review of the decision of a delegate of the Respondent dated 19 July 2022 not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (the Act).
The Applicant’s visa was cancelled under s 501(3A) of the Act on 20 April 2021 on the basis that the delegate was satisfied that he did not pass the character test because of his substantial criminal record, and he was serving a full-time term of imprisonment for an offence against a law of a State.
The application for review was made on 21 July 2022 pursuant to s 500(1)(ba) of the Act which allows applications to be made to the Administrative Appeals Tribunal (the Tribunal) 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 power in s 501CA(4)(b) of the Act to revoke the cancellation of the visa made under s 501(3A) of the Act should be exercised by the Tribunal. 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.
The Hearing and the Evidence
The application was heard on 23 September 2022 in the Perth registry. The Applicant represented himself and the Respondent was represented by Mr Ashley Burgess of Sparke Helmore Lawyers. The Applicant’s partner Ms Jeanette Hall and his son Mr Levi Richey gave evidence at the hearing.
The Tribunal admitted the following documents into evidence:
(a)Detainees Visits Appointment Notification consisting of pages 1-4 (Exhibit A1);
(b)Applicant's Support Plan/Review signed on 27 July 2022 (Exhibit A2);
(c)Statement of Ms Lorraine Bianco dated 24 June 2021 (Exhibit A3);
(d)Statement of Mr Stephen Morrison dated 27 July 2022 (Exhibit A4);
(e)Applicant's statement dated 7 September 2022 (Exhibit A5);
(f)Statement of Ms Jeanette Hall dated 1 September 2022 (Exhibit A6);
(g)Statement of Mr Levi Richey dated 15 August 2022 (Exhibit A7);
(h)Respondent's Statement of Facts, Issues and Contentions dated 19 August 2022 (Exhibit R1);
(i)Section 501 'G-Documents' consisting of G1-G44; pages 1-157 (Exhibit R2); and
(j)Summons Bundle Consisting of pages 1-140 (Exhibit R3).
Background
The Applicant is a 58-year-old New Zealand citizen. He moved to Australia with his father when he was 13 years old. The Applicant’s movement records reflect that he was offshore from 1979 – 1986; between 1986 and 2008 he spent a total of five and a half months in Australia; between 2008 and 2009 he was in Australia for 10 months and spent less than one month in Australia in 2014. The Applicant has resided continuously in Australia since 11 November 2015 except for a period of five months.[1]
[1] Exhibit R2, 121–123.
The Applicant has a criminal history in both Australia and New Zealand. His criminal history primarily consists of drink-driving and violent offences.
The Applicant’s criminal history in New Zealand is detailed in the criminal and traffic history provided by the Ministry of Justice New Zealand.[2]
[2] Ibid 28–29.
The Applicant’s offending dates back to 1982. His first drink-driving conviction was recorded in 1984 for ‘Driving With Excess Breath Alcohol Level’. In 1993 the Applicant was convicted for ‘Breath Alcohol Level Over 400 Mcgs/Litre of Breath Blood/Breath = 765’ and in 1994 for ‘Male Assaults Female(Manually)’. In 2006 he was convicted for ‘Possess Offensive Weapon (Other)’ and ‘Male Assaults Female(Manually)’. In 2007 and 2010 further drink-driving convictions were recorded. The Applicant was convicted for two family violence offences, ‘Speaks Threateningly(Family Violence)’ and ‘Wilful Trespass(Family Violence)’, in January 2015.[3]
[3] Ibid.
Mr Burgess, the Respondent’s representative, cross-examined the Applicant on his early drink-driving offences in New Zealand.
On questioning about his offences in New Zealand, the Applicant stated that he had no recollection of the circumstances of the offending. He further clarified he knew he had been drinking but was not aware that he was over the limit.[4]
[4] Transcript,13–14.
Mr Burgess noted the Applicant had received four convictions for drink-driving offences in New Zealand one of which resulted in imprisonment.[5] On questioning about the drink-driving offence which resulted in the imprisonment, the Applicant stated that he did not go to prison for drink-driving, rather because he refused to pay a fine or do periodic detention.[6]
[5] Ibid 14; Exhibit R2, 28.
[6] Transcript,15.
I do not accept the Applicant’s reasoning in this regard. He would have been fined for his drink-driving offence. The fact that he went to prison for refusing to pay the fine does not alter the fact that the conviction was for drink-driving and that was the reason he went to prison.
The Tribunal was also provided with the ‘Check Results Report’ recording the Applicant’s convictions in Australia.[7]
[7] Exhibit R2, 26–27.
Mr Burgess referred the Applicant to his drink-driving offence in Norseman in September 2017.[8] Having referred the Applicant to the ‘Statement of Material Facts’ recorded by the Western Australian police,[9] he noted the Applicant had a blood alcohol reading significantly over the limit. The Applicant responded as follows:[10]
I’d already driven. I’d gotten up in the morning, my son and I had been down in Esperance, I hadn’t been drinking, but this was from the night before. I was fine, I felt I was fine. I wasn’t drinking…
…Yes, I hadn’t had a drink. I got up, we were in a motel, I got up, we packed our stuff and started back to Kalgoorlie, and I was over the limit.
[8] Ibid 27.
[9] Exhibit R3, 97.
[10] Transcript, 15.
By the Applicant’s own admission, he had been drinking heavily the night before and the next morning had driven from Esperance to Norseman (with the intention of driving to Kalgoorlie) with a significantly elevated blood alcohol reading. His blood alcohol was 0.121 per 100mls of blood, well in excess of the blood alcohol limit of 0.05. The drive from Esperance to Kalgoorlie is approximately 400 km in distance. By the Applicant’s own admission, he had no idea that he was over the limit because of the amount of alcohol he had drunk the night before.[11]
[11] Ibid.
Mr Burgess cross-examined the Applicant on his offences relating to assault. As noted above, in 1994 the Applicant was convicted and sentenced in relation to a crime referred to as ‘Male Assaults Female(Manually)’. When asked to explain the circumstances of the offending the Applicant responded as follows:[12]
The mother of my children, she has two sons to another relationship, and I came home for lunch, like her son, her older son did from the other relationship, and he complained about his lunch, and she started hitting him about the head, and I got in between them, and she rang the police. And when I was charged I – I had a non-alcohol – I wasn’t allowed to go to licensed premises or drink or anything like that, so I pleaded guilty to it. I did push her away from her son, but it was not assault. In fact I have never assaulted this woman, but I have two convictions for it. It was just easier to get it over and done, walk in, plead guilty and then I can just walk out the door and go straight to the pub.
[12] Ibid 15–16.
The Applicant was again convicted of assaulting the same woman and of possessing an offensive weapon in 2006. His explanation of these offence was as follows:[13]
It’s a tough one for you to believe but I swore to tell the truth. She was – she’s the mother of my children, by this time she’s the mother of my children, and she was having an affair with my boss, and I knew nothing about it, and after a heavy night of drinking I woke up and the police were there, already standing at the door waiting for me. I never laid a fricking finger on her, and you can find no evidence of it either, because the police couldn’t either, but it was easy for me just to plead guilty and get it over and done with. When it says an offensive weapon, when I answered the back door we have a chip heater where you use a tomahawk to feed the fire to heat the hot water. I was not in possession of it, it’s there, it was just there. It was the police’s job to do whatever they could, make it as bad as possible, and that is the truth.
[13] Ibid 16.
When questioned whether he could remember what he did to his partner, the Applicant said he had no recollection and had pleaded guilty. His reason for doing so was that ‘the courts are backed up. If I get caught drinking in a bar or anywhere like that, it just adds to it. It’s just easier to plead guilty, get fined and get it over and done with.’[14]
[14] Ibid 16–17.
Mr Burgess clarified why the Applicant was pleading guilty for the offence he claims to not having committed. The Applicant responded that he would have a ban from attending licensed premises. This was explained by the Applicant as follows:[15]
There is not one conviction here, there’s not one time I had been in trouble where I haven’t been drunk, where there’s been alcohol involved, and because those involved alcohol I was not allowed to go to licensed premises, bottle shops; I think there was one for even drinking. I think that was in – yes, the 2006 one, I wasn’t even allowed to drink at all.
[15] Ibid 18.
When I questioned the Applicant, he said there was a system in place in New Zealand that a ban (as described above) is imposed from when a person is charged to when the charges are disposed of. The Applicant’s reasoning was that if he pleaded guilty that would enable him to resume drinking as soon as possible.
In November 2016, the Applicant was the subject of an incident report with the Western Australia police.[16] The victim’s name was redacted but it was established that the victim was Ms Jeanette Hall, the Applicant’s partner. Ms Hall had called a friend who contacted the police on her behalf after the Applicant had been verbally abusive and had grabbed her face and squeezed it.
[16] Exhibit R3, 106.
When the police arrived at Ms Hall’s residence, both parties appeared to be intoxicated and Ms Hall declined to make a statement or complaint to police. A 48-hour police order was issued to keep the parties separated. In cross-examination the Applicant had no memory of this incident.[17]
[17] Transcript, 19.
In February 2017, the police were again called to Ms Hall’s residence as a result of a call from a neighbour. Ms Hall informed the police that she had been in an ‘on and off again relationship with RICHEY [the Applicant] for the past 12 months. POI is from New Zealand is currently homeless’.[18]
[18] Exhibit R3, 110.
The incident report states that Ms Hall complained she had asked the Applicant to leave but he had refused. She also said that he continually drinks alcohol and is verbally abusive when intoxicated. The Applicant was again issued with a 72-hour police order and Ms Hall bought him a train ticket to Perth and gave him $50.
The Applicant, again, had no memory of the circumstances of the complaint but did remember the police coming to the house. When asked if he becomes verbally abusive when drinking alcohol, the Applicant responded ‘not always’,[19] but did concede that he had been in the past.
[19] Transcript, 19.
The Applicant was charged with ‘Assault Occasioning Bodily Harm’ in June 2019 in relation to an offence committed on in May 2019.[20] The victim was Ms Hall’s goddaughter. All parties were intoxicated, and the Applicant was accused of pushing the victim to the ground and punching her in the face with a clenched fist. He then put his hands around her neck and squeezed it making it difficult for the victim to breathe.
[20] Exhibit R3, 99.
The Applicant denied this occurred and said there were no witnesses and that the victim was lying. When asked if Ms Hall pulled him off the victim he responded ‘she was drunk and she saw nothing. She didn’t pull me off anybody, and you can cross-examine her on that, mate.’[21]
[21] Transcript, 21.
The Applicant further explained that the victim made the incident up and attacked him. He said she was a meth user and stole a case of his wine. He said when he asked her where his case of wine was, she attacked him. He said she lied in court and put on a brilliant show. He said he was convicted for something he did not do. The Applicant was convicted of this ‘Assault Occasioning Bodily Harm’ offence in the Magistrates Court in January 2020.[22]
[22] Exhibit R3, 96.
In September 2019, the Applicant was the subject of another incident report with Western Australian police. In this instance the Applicant is again accused of being intoxicated and punching Ms Hall in the stomach with a closed fist as well as squeezing her face and pulling her hair. Ms Hall refused to make a formal complaint against the Applicant but asked for assistance in having a restraining order put on him.[23]
[23] Ibid 114.
The Applicant said he had no recollection of the incident and did not think he would have punched Ms Hall in the stomach, squeezed her face or pulled her hair. The Applicant was issued with a 72-hour police order.[24]
[24] Transcript, 22.
In March 2020, the Applicant was arrested and charged with breaching a ‘Family Violence Restraining Order’ (FVRO).[25] The Applicant had been living for two months at Ms Hall’s residence which was listed on the FVRO as a prohibited address. The Applicant had no memory of being removed from the address and said he was probably intoxicated at the time. He also stated he had no memory of having the FVRO issued against him.[26]
[25] Exhibit R3, 100.
[26] Transcript, 22.
In January 2021, the Applicant and Ms Hall were drinking heavily together at her home. The ‘Statement of Material Facts’ relating to the offence stated that the Applicant had accused Ms Hall of having a threesome with her ex-husband and his new wife.[27] The Applicant conceded he said that.[28] The statement further states that the Applicant punched Ms Hall in the side of the head and kicked her directly in the genital area causing her immediate severe pain. She went to bed and attended a police station the next day. Photographs were taken of bruising to her head and groin area. The Applicant was arrested but denied any wrongdoing saying that Ms Hall had been drunk and fallen over hitting her head on the floor and her groin on the corner of the coffee table.[29]
[27] Exhibit R3, 104.
[28] Transcript, 23.
[29] Exhibit R3, 104.
The Applicant again denied this version of the events and explained as follows:[30]
I was showing her something on my telephone and I slapped her with my hand in my telephone. I did not punch Jeanette in the head. This is exaggerated by police, which it is, and it’s even – and, like, the courts things, this was a sustained attack. I never punched Jeanette. I did slap her and I did knee her, and it says I booted her. I didn’t boot her; I kneed her and I never punched her. And a sustained attack? It only lasted not even five seconds and that five seconds of crazy has given me 18 months locked up. Now I’m not about to lie, this is what happened. I didn’t punch her and I didn’t kick her and it wasn’t a sustained attack. That was police exaggeration or however you want to put it. I’m not saying it didn’t happen. I’m not saying I didn’t assault her. Yes, I screwed up big. I did wrong. But what they say, did not happen.
[30] Transcript, 23.
When asked by Mr Burgess if he hit Ms Hall with his phone, the Applicant said he did not know if he hit her, but he had his phone in his hand. After some discussions over whether he said he kneed Ms Hall, the Applicant said he did but not in the crotch. When asked to clarify he said it was in the lower waist – between the stomach and the genitals. He thought she went to the police three or four days later at which point he was charged and released with protective bail conditions. The Applicant again did not recall that the bail conditions were imposed until his next court appearance on 15 March 2021. On 10 January 2021, Ms Hall contacted the police to say that the Applicant had been calling her in breach of his bail conditions. The Applicant again denied this in his evidence, instead saying that he was answering a text that he had received from her.[31]
[31] Ibid 25.
In March 2021, the Applicant was convicted for ‘[u]nlawfully assault and thereby did bodily harm with circumstances of aggravation’.[32] The Applicant was sentenced to 12 months imprisonment.
[32] Exhibit R2, 26.
On 20 April 2021, the Applicant was notified that his visa was cancelled under s 501(3A) of the Act with effect from that date. The visa was cancelled because he had, by reason of the sentence received in March 2021, a substantial criminal record and he was serving a sentence of imprisonment on a full-time basis.

The Applicant sought revocation of the cancellation decision on the same date.
On 19 July 2022, a delegate of the Minister decided that the revocation power in s 501CA(4) of the Act was not enlivened. The Applicant was notified of this decision on 20 July 2022.
On 21 July 2022, the Applicant sought review of the delegate’s decision with the Tribunal.
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)); or ...
(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; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or …
(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:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)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 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).[33] 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’.[34] (Direction 79).
[33] 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).
[34] 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 of the Act. These principles are stated to be as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. 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.
(5) 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 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the 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 501(1), 501(2) or 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 under the Act?
In March 2021 the Applicant was convicted and sentenced to a term of imprisonment for 12 months for ‘[u]nlawfully assault and thereby did bodily harm with circumstances of aggravation’.[35]
[35] Exhibit R2, 26.
Under s 501(7)(c) of the Act, the Applicant has a ‘substantial criminal record’ because he has been sentenced to a term of imprisonment of 12 months or more. As a result, pursuant to s 501(6)(a) of the Act, the Applicant fails the character test due to having a substantial criminal record.
Accordingly, for the purposes of s 501CA(4)(b)(i) of the Act, I am not satisfied that the Applicant passes the character test as defined by s 501 of the Act.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
As a result of finding that the Applicant does not pass the character test, pursuant to s 501CA(4) of the Act, I must consider whether there is ‘another reason’ why the mandatory cancellation of the visa should be revoked.
In accordance with s 499(2A) of the Act, the Tribunal must comply with Direction 90 in making a decision regarding a request for revocation of a mandatory cancellation of the visa pursuant to s 501CA of the Act. Paragraph 5.1(4) of Direction 90 relevantly provides that the purpose of Direction 90 is to guide decision-makers in performing functions or exercising powers under s 501CA of the Act.
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 Applicant has committed and been convicted of multiple drink-driving and multiple domestic violence offences both in Australia and New Zealand.
I find the nature of the Applicant’s offending to be very serious for the following reasons:
(a)The offending in New Zealand and Australia has involved violence against women which is deemed to be very serious, regardless of the sentence imposed.[36]
(b)Violent crimes are also viewed very seriously by the Australian government and the Australian community.[37]
(c)The sentencing judge noted that the offences were too serious for a suspended sentence. The judge noted: ‘[s]he was subjected to violence and probably – well, and pain and a continuation of that behaviour from you along with the derogatory comments that I have already referred to’.[38]
(d)The fact the Applicant received a custodial sentence reflects the seriousness of the offending.
(e)The Applicant has offended frequently over a long period of time, for both drink-driving offences and offences involving violence.[39] The offending has also become more serious with time.
(f)The cumulative effect of repeat offending particularly against his domestic partner.[40]
(g)Whilst the Applicant did not harm anybody whilst drink-driving, he has been convicted on five occasions, one of which was after he had driven from Esperance to Norseman (en route to Kalgoorlie) where he was tested. This demonstrates extremely reckless behaviour that had the capacity to cause serious injury or death to innocent third parties.
[36] Direction 90, para 8.1.1(1)(a)(ii).
[37] Direction 90, para 8.1.1(1)(a)(i).
[38] Exhibit R2, 34.
[39] Direction 90, para 8.1.1(d).
[40] Direction 90, para 8.1.1 (e).
Having regard to all the evidence and the relevant considerations in paragraph 8.1.1 of Direction 90, I find that the nature of the Applicant’s offending to be very serious and this weighs heavily against revocation of the original decision to cancel the visa.
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).
…
I am satisfied that the nature of the harm that would be caused if the Applicant were to engage in further criminal conduct is very serious and is likely to involve significant physical and psychological harm to members of the Australian community. I am satisfied that the nature of the conduct and the harm that would be caused, should the Applicant re-offend is so serious that any risk of it being repeated is unacceptable.
The Applicant has been convicted of multiple counts of violent offences and of family violence, in particular. In addition, the Applicant has been convicted of multiple counts of drink-driving offences. Both these types of offending have the potential to cause serious injury, both physical and psychological and/or death to members of the Australian community.
In considering the likelihood of the Applicant engaging in further criminal or other serious conduct, I am required to take into account the relevant information and evidence regarding the risk of him re-offending and evidence of rehabilitation achieved by the time of my decision.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 90
Paragraph 8.1.2 of Direction 90 requires the decision-maker to consider the likelihood of the non-citizens engaging in any further criminal activity or other serious conduct taking into account the information and evidence on the risk of the non-citizen re-offending; and any evidence of rehabilitation achieved by the time of the decision giving weight to time spent in the community since their most recent offence.
The Applicant is a 58 year-old New Zealand citizen. In response to my questions, he said that he came to Australia when he was 13 years old with his father. He went to school for approximately six months and then worked as a pastry maker. He moved to Adelaide for three – four months, living at the Salvation Army and St Vincent de Paul. When I asked him why he left when he was only 15 years old, he said his father took all his wages and that was when he started drinking alcohol. He said he was allowed to drink alcohol and smoke at home from the age of 12. He returned to New Zealand when he was 16 years old and lived with his mother. He then moved to Auckland and started baking. He said he was a baker by trade until he was about 21 years old when he started doing construction and other labouring jobs. He never went back to baking, ‘only when I needed to’.[41]
[41] Transcript, 32–33.

The Applicant mentioned that he had been his ‘own man’ since he was 13 years old.[42]
[42] Ibid.
I have outlined the Applicant’s history of offending since 1982 and his responses to Mr Burgess’s questioning about his drink-driving and domestic violence offending in New Zealand and Australia. With the exception of the conviction for which he received a custodial sentence, the Applicant denied all of the circumstances leading to his convictions, either because he had no memory of the events and/or witnesses and the police had fabricated the facts.
In relation to the drink-driving offences in New Zealand the Applicant stated he had no memory of the offending and had pleaded guilty so that he did not incur a drinking ban. With respect to the assault in 2006 against his ex-partner, he said she fabricated the whole story, but he pleaded guilty, again to avoid a drinking ban.
In relation to his drink-driving offence in 2017, he denied drinking alcohol despite having a significantly elevated blood alcohol reading, instead alleged that it was because he drank heavily the night before.
For the assault charge in 2020 he stated that Ms Hall’s goddaughter attacked him and made the story up.
For the final conviction in 2021 he initially denied the offending claiming that Ms Hall had fallen and injured herself and at this hearing continued to minimise the circumstances of the assault by disputing whether he did hit Ms Hall in the head and knee her in the groin area.
In his oral evidence the Applicant consistently blamed his alcohol abuse for all his actions. He said that ‘there’s not one thing here that I have done that I haven’t done under the influence of alcohol. I have never been in trouble with the police or anybody or anything sober’.[43]
[43] Ibid 26.
The Applicant further said that when he ‘went to gaol it was the first time I had been sober in 40 years’.[44]
[44] Ibid 27.
Whilst the Applicant claims that he is well behaved when not intoxicated, he also gave evidence which indicates he has abused alcohol since he was 13 years old.
On the basis of the answers provided under cross-examination to Mr Burgess, together with comments made during the course of his evidence, I am not satisfied that the Applicant has demonstrated any real insight into his offending. He consistently denied the facts presented in ‘Incidents Reports’, ‘Statement of Material Facts’ and also took issue with the sentencing judge’s comments that he committed a ‘sustained attack’.[45]
[45] Ibid 25; Exhibit R1, 33.
I have also had regard to other evidence provided to the Tribunal in finding the Applicant lacks any insight into his offending.
Ms Jeanette Hall provided a witness statement[46] and was cross-examined by Mr Burgess at the hearing. As stated before, Ms Hall has been the Applicant’s partner intermittently over a period of years.
[46] Exhibit A6.
Ms Hall was questioned about the incident in 2016 when she called her neighbour asking him to contact the police. She said she vaguely remembered the incident and that they had been drinking.[47] With respect to the incident in February 2017, she agreed with the version of events.[48]
[47] Transcript, 38.
[48] Exhibit R3, 110.
Mr Burgess referred Ms Hall to the ‘Statement of Material Facts’ for the assault on her goddaughter in May 2019. Ms Hall said she was not aware until later that the goddaughter had attacked the Applicant first, but she does remember pulling him off her. She also confirmed she saw him kick her a couple of times.[49]
[49] Transcript, 40.
This is a direct contradiction of the Applicant’s evidence under cross-examination when he said that Ms Hall did not see anything, was drunk and did not pull him off anybody.[50]
[50] Ibid 21.
Given that Ms Hall’s oral evidence accords with that in the ‘Statement of Material Facts’ I prefer Ms Hall’s evidence over that of the Applicant.
Mr Burgess referred Ms Hall to the ‘Statement of Material Facts’ relating to the assault in January 2021.[51] When asked whether that was an accurate description of what she told the police she answered ‘yes’.[52]
[51] Exhibit R3, 104.
[52] Transcript, 40.
Mr Burgess referred Ms Hall to an incident report relating to events in September 2019. Again, he asked her whether that was what she told the police to which she answered ‘yes’.[53]
[53] Ibid.
In her evidence, Ms Hall consistently confirmed the events as she described to the police at the time of the incidents. The Applicant has demonstrated he is a poor historian who cannot recall events either due to unwillingness or alcohol related memory issues. In these circumstances, I prefer the evidence of Ms Hall and do not accept the Applicant’s explanation surrounding the multiple counts of offending.
The Applicant attempted to re-examine Ms Hall in the following terms: ‘are you sure that it’s exactly what happened, everything that you’ve read there, that is exactly how it happened, are you sure… Please have another look. Let’s have the truth.’[54]
[54] Ibid 41.
After Mr Burgess correctly objected that Ms Hall had already answered that question, no further questioning was done by the Applicant.
The sentencing judge, while sentencing the Applicant, made the following comments:[55]
You were also heavily affected by alcohol, which is an ongoing issue for you. It’s quite clear from the report before me that alcohol consumption is a very significant factor for you and in fact, you were listed to be sentenced on 15 March, but that couldn’t go ahead due to your intoxication on that day. So it’s clearly an ongoing problem for you. The report points to a number of things which I will raise.
The report raises a concern that you still at this stage lack insight into your – the word used in the report is “deficits” but perhaps I will use the word “issues” instead – and risk factors. Now that’s obviously of concern because if you lack insight into those then it means that you are what we might call pre-contemplative when it comes to any changes in your life and certainly the fact that you attended court last week significantly under the influence of alcohol, as I say, indicates that that is an ongoing issue for you that you have not managed to address at this stage.
The report states a couple of times that you seem to apportion blame to the victim, which would be consistent with your attitude on the day in question, in which you had taken the view that I have mentioned about her behaviours and you decided to use extremely derogatory language towards her and then proceed to engage in what I do consider what a somewhat sustained attack.
[55] Exhibit R2, 32.
The judge continued:[56]
As I say, the report and your recent attendance at court under the influence shows that alcohol continues to be a very significant issue for you. It’s something that you clearly need to address if you’re not to find yourself before the court again. In all the circumstances, I do not think that in this case there is scope for suspension of the term of imprisonment.
In my view, the matter is too serious. I do take into account the age of the victim as well. Although its not pleaded as a specific circumstance of aggravation I am permitted to take that into account and I do. I take into account the fact that she sustained injuries to her head and her genital region. She was subjected to violence and probably – well, and pain and a continuation of that behaviour from you along with the derogatory comments that I have already referred to.
[56] Ibid 34.
The judge gave the Applicant a 25 percent discount to his sentence due to his plea of guilty.
There is no doubt that based on the comments of the sentencing judge and the Applicant’s own admissions that alcohol has played a very significant role in his offending.
Therefore, of relevance to my findings is whether the Applicant has made appropriate and adequate attempts to address his alcohol abuse problems.
The Applicant has not been formally diagnosed with suffering from alcohol addiction but on the basis of the documentary evidence together with his own oral evidence I find that he is subject to abusing alcohol and has done so on a regular basis since he was approximately 13 years old.
The Applicant submitted a ‘Support Plan/Review’ from Centrecare reviewed on 27 July 2022.[57] The program goals were described as increasing his knowledge and demonstration of life skills and property standards required to establish a tenancy, awareness and engagement in community services, increased confidence and knowledge in his role as an effective parent, and knowledge and understanding of financial management tools. The review states that the Applicant has completed the ‘Standing on Ground Course’ and is willing to participate in any course available in prison prior to his release. One of the program goals for the Applicant’s review was to develop an ‘[i]ncreased awareness of issues that may have contributed towards his [Applicant] criminal behaviours and demonstrate a change in lifestyle’. Several actions were flagged that the Applicant wanted to achieve after his release from prison, including following up on employment opportunities. He also indicated he was seeking a referral for Hope Community Services for Alcohol and Other Drug (AOD) counselling and for ‘Men’s Shed Kalgoorlie’ group to help him develop his social skills.
[57] Exhibit A2.
A statement dated 27 July 2022 from Mr Stephen Morrison, Manager of Justice and Community at Hope Community Services, was submitted by the Applicant.[58] It stated that he had completed the ‘Good Way Program (AOD Prevention/Family and Domestic Violence Prevention Program)’ while he was in prison.
[58] Exhibit A4.
The Applicant submitted his own witness statement dated 7 September 2022 in which he acknowledges his deep shame, taking full responsibility for his actions which he described as ‘childish and stupid’ and ‘I am truly sorry with all my heart’.[59] He further stated:
my offending was through alcohol abuse, i have done a three month course, standing on solid ground and a week course with hope, this is all that has been available, i have reconnected with hope and centacare for support and counselling, there will be no reoffending with the support, my will and the love of Jen and the love of family, I will never relive this nightmare. [sic]
[59] Exhibit A5.
Ms Hall also provided a witness statement as noted above in which she expresses her support for the Applicant and her firm belief that he will not re-offend because she has seen the change in him and knows the loss he feels.[60]
[60] Exhibit A6.
I acknowledge what appears to be a genuine statement of remorse by the Applicant and the ongoing support provided by Ms Hall which goes towards reducing the risk of the Applicant re-offending.
In cross-examination, Mr Burgess asked the Applicant whether he had undertaken counselling prior to being sentenced. The Applicant said that he had because he was told by his boss to get help, ‘and because I’ve never listened to anybody in my life, I didn’t take it that seriously, you know, and just I was my stupid self’.[61]
[61] Transcript, 26.
When asked again how often he had attended counselling, he said he had been to two or three out of the five meetings but continued to consume alcohol during the period.[62] This is also evident by his intoxication at his sentencing hearing.
[62] Ibid.
Mr Burgess referred the Applicant to his pre-sentence report, highlighting discrepancies in relation to his convictions and what he reported to the interviewer. He again said that was because he was intoxicated.[63] The assessment undertaken by Ms Damoi Joyce on 11 March 2021 was as follows:[64]
Perusal of Mr Richey’s Departmental records, indicate the risks of domestic violence has escalated and is underpinned by his entrenched use of alcohol. Mr Richey’s other risk factors relate to poor emotional management in high risks situations; especially whilst under the influence of alcohol, behaving in a jealous manner and not having the ability to appropriately deal with conflict resolution.
[63] Ibid.
[64] Exhibit R3, 7.
Ms Joyce states further:[65]
Mr Richey express his regrets in regards to his behaviour and he was sorry for the violence against the victim in the context of domestic violence. During interview he apportioned blame to the victim, provided contradicting information regarding his use of alcohol and denial of any previous behaviours relating to domestic violent [sic] in his relationship with the victim.
[65] Ibid 8.
Documentary evidence was provided to the delegate as part of the Applicant’s request for revocation from Ms Lorrain Bianco, Education Tutor, Department of Justice.[66] In her report dated 24 June 2021, she stated as follows:
Karl is currently enrolled in the Personal Development unit from the Gaining access to Training and Employment qualification.
I am the lecturer in the Personal Development unit; a course titled Standing on Solid Ground, which focuses on making skilful choices linked to our self-esteem and less controlled by our emotions. The course also practices self-awareness in the present moment. Karl has approached this course with commitment, fortitude and self-reflection. He continues to demonstrate a strong willingness to learn so he can make changes to his life.
Since commencing Standing on Solid Ground, Karl sees the benefits of the program and how it will help him to create a better future. He has been a dedicated student, turning up for every class and implementing the concepts learnt.
[66] Exhibit R2, 58.
On 5 August 2021 the Prisoners Review Board notified the Applicant that they had received written notice that he did not want to be released to parole and accordingly no parole order was made by the board.[67]
[67] Ibid 71.
In the Applicant’s ‘Offender Notes’ from Corrective Services there is an entry on 30 July 2021 regarding his ‘Immigration, parole and courses’.[68] The notes indicate that the Applicant stated he was not told about courses he may have been able to participate in when he first entered prison. The notes continue:[69]
Richey did inform the author that he has now submitted a UIF requesting to participate in courses at EGRP. He hopes this will assist him in his Immigration situation. The author explained to Richey all Immigration decisions were out of our control which he accepted. The author asked Richey how he wanted to proceed with his concerns and his disapproval of his alleged lack of information in regards to guidance and the availability of courses he could have completed to which he believes would have assisted with his Immigration…
[68] Exhibit R3, 67.
[69] Ibid.
When asked whether he did the courses to assist his migration outcome, the Applicant responded ‘I was told by a lot of prisoners that this will help you, and why wouldn’t I do something that would help me?’.[70]
[70] Transcript, 29.
Mr Burgess pressed him and asked whether it was the sole reason for doing the courses and the Applicant again responded ‘well, why else would I do it? It’s just, you know – I just don’t get what you’re getting at, like’.[71]
[71] Ibid.
The Applicant re-applied for his parole and the ‘Parole Assessment’ report was admitted into evidence.[72]
[72] Exhibit R3, 11.
That report notes the Applicant minimising his offending and apportionment of blame to the writer of the assessment because of an unfavourable Pre-Sentence report. In cross-examination Mr Burgess asked the Applicant what happened when he applied for parole. His response was as follows:[73]
When I walked into the office for the parole person, it was the same person who did the pre-sentencing report and she stood up and she says, ‘You remember me?’ And I said, ‘Yes, you’re the person who gave me the negative parole report – pre-sentencing report’. And she packed up her stuff and says ‘You’re a racist. You’re a racist,’ and walked out the door. That was my parole report. That’s what happened.
[73] Transcript, 27.
When Mr Burgess again asked if the Applicant had had an interview on 27 October 2021, the Applicant responded ‘it didn’t happen. There was no interview. There was no abuse, there was no swearing, there was no nothing. That is what happened. That is the truth.’[74]
[74] Ibid.
The content of the report makes it difficult to accept that an interview did not occur. The Applicant has said Ms Joyce called him a week later and spoke to him over the phone and obtained the relevant information at that time. He went further and also stated:[75]
She’s made up the abusive stuff, saying that I was abusive to her, abusive to prison staff. If you act abusive, if you act aggressive to prison staff and speak abusively, you don’t stay there, you get moved on. You get charged and you get moved on. And if you have a look, there are no charges and I never got moved on. You do not abuse and act aggressively to prison staff and then nothing happens. So someone is making something up.
[75] Ibid 28.
After reviewing the ‘Total Offender Management System’ (TOMS) Ms Joyce reported that there were no formal charges or incidents but there were negative notes during the Applicant’s current term of imprisonment. Namely, the notes revealed aggressive and demanding behaviours towards prison staff. She also reported positive behaviours, particularly with other prisoners. He was described as ‘aggressive and demanding towards prison staff when his needs were not being adequately addressed’.[76]
[76] Exhibit R3, 12.
Having reviewed the TOMS notes, I note a record on 21 July 2021 that states his interview with Ms Joyce was terminated because he was ‘rude and abusive’.[77] He stated that it was her fault that he was sentenced and that he was being deported because of her. The Applicant is reported as being ‘quite aggressive’ in his demeanour.[78]
[77] Ibid 68.
[78] Ibid.
The records therefore reflect that the interview was terminated, however a follow up interview may have taken place by telephone as stated by the Applicant.
The Applicant was not recommended for release on parole. The parole assessment noted concerns about the Applicant’s lack of responsibility for his offending, apportionment of blame to his victim/partner and the current author for his sentence of imprisonment. It was also noted that the Applicant provided misleading information about his alcohol use and prior violence in his relationship in his pre-sentence interview.
In summary, the Applicant presented with an escalated risk of domestic violence, underpinned by his entrenched use of alcohol. Other risk factors related to poor emotional management in high-risk situations, exacerbated by alcohol, behaving in a jealous manner and an inability to deal with conflict resolution. Of further concern was that the Applicant presented with no strategies, protective factors or safety plan to assist him with reducing his risk of relapse to alcohol and subsequent domestic violent behaviours.
It was also noted that the completion by the Applicant of ‘The Good Way Program’ delivered by Hope Community Services was not considered to be at an intensity required to adequately address his current needs.[79]
[79] Ibid 12.
The evidence, as outlined above, overwhelmingly demonstrates a lack of insight by the Applicant into his offending. He has undertaken very little treatment in terms of rehabilitation for his alcohol abuse with the notation being made that the course completed was inadequate to address his particular needs.
Of great concern is the lack of supports and plans upon his release to avoid a relapse into alcohol and possible violent behaviour. The Applicant has said that Ms Hall will support him and the punishment he has received is a deterrent to him repeating his behaviour.
I note the Applicant has been incarcerated since March 2021 and was transferred to Immigration Detention after his release from prison. He was intoxicated at his first sentencing hearing which was adjourned and then at his second prior to being taken to prison. He claims he has been sober since that time and has been able to see the error of his ways.
Unfortunately, however, this is not sufficient to satisfy me that he is at a reduced risk of re-offending. Despite the excuses given, the Applicant has not engaged in adequate rehabilitation programs to address his alcohol use and his domestic violence history. When asked why he did them by Mr Burgess he conceded that it was to increase his chances of success in this application.

In his evidence the Applicant repeatedly denied wrongdoing, claiming, amongst other things that he pleaded guilty just to avoid the drinking ban so that he could continue consuming alcohol (when living in New Zealand), victims had fabricated their evidence, authors of reports had exaggerated or lied in their reports, the police had concocted damning evidence and he could not remember details of events due to his excessive alcohol use.
Even if I were to accept the events as described by the Applicant, the fact that he has consistently blamed alcohol for all his behaviours is in itself concerning. His sobriety has not been tested in the community, and it is only approximately 18 months since he was sentenced. I am significantly concerned that if he were to return to Ms Hall’s residence, in the same circumstances and environment as before that there are no protective factors or strategies in place that would prevent him consuming alcohol again. Furthermore, given his long history of family violence, I am also concerned for Ms Hall’s safety in that environment.
I acknowledge that the Applicant has expressed his remorse and can see the error of his ways in the past. I also acknowledge Ms Hall’s genuine belief that the Applicant has changed and that she wishes to support him. I also have no reason to doubt their genuineness in this regard. This alone, however, is not sufficient. There is no evidence to satisfy me that the Applicant has undergone appropriate rehabilitation and has strategies to prevent his drinking and/or offending again. I also note that he has a long history of drink-driving offences, for which he does not appear to have expressed any remorse.
I am required to assess whether the Applicant poses an unacceptable risk of harm to the Australian community. This requires an assessment of the likelihood of re-offending. There is no statutory constraint on the way risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.
I accept on face value the Applicant’s expressions of remorse. He has been incarcerated and in immigration detention, which no doubt has caused him to reflect on his behaviour and also gave him an opportunity to be sober. I also accept that his partner, Ms Hall, will support the Applicant by giving him accommodation and emotional support on his release.
These factors alone however are insufficient to satisfy me that the Applicant will not re-offend. In light of the fact that he has shown very little insight into his offending, has engaged in minimal rehabilitation and has not taken active steps towards managing his alcohol abuse and response to conflict that has resulted in instances of violence in the past all leads me to conclude that the risk of the Applicant re-offending is moderate to high.
The Applicant’s offending is very serious, and I find there is a moderate to high risk of him re-offending. Any future conduct of a similar nature would be serious with the likelihood of severe harm being suffered.
As a whole, I find that the first primary consideration, the protection of the Australian community, weighs heavily against revocation of the cancellation of the visa.
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 noncitizen, 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
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
A decision-maker is required to consider, as a primary consideration, any family violence committed by a non-citizen holding a visa. Direction 90 states that the Australian Government has serious concerns about non-citizens who engage in family violence being given the privilege of entering or remaining in Australia.
I have therefore considered whether the Applicant has engaged in any conduct constituting ‘Family Violence’ as defined in Direction 90.
‘Family violence’ is defined in paragraph 4(1) of Direction 90 to mean ‘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’.
‘A member of the person’s family’ or ‘family’ is not defined in Direction 90. It is a question of fact to be determined by the decision-maker.
I find that on the basis of the multiple incident reports provided by the Western Australia police as well as the evidence of both the Applicant and Ms Hall that the Applicant was living with Ms Hall at the time that he offended in Australia. Furthermore, the offences for which he was convicted in March 2021 falls squarely within the definition of family violence as defined in paragraph 4 of Direction 90.
Having regard to the factors stated in paragraph 8.2(3) of Direction 90 I make the following findings:
(a)the Applicant’s conduct and offending, as outlined above has occurred consistently over a period of years with a trend of increasing seriousness, reflected in his latest custodial sentence;
(b)the cumulative effect of the Applicant’s family violence has involved a significant use of police resources to attend to disturbances and multiple injuries incurred by Ms Hall;
(c)there is no evidence of the Applicant having undertaken appropriate rehabilitation to address either his domestic violence offending and/or his alcohol abuse which has been a significant trigger for the offending;
(d)the Applicant’s evidence repeatedly demonstrated a lack of understanding by him as to the impact his behaviour has had on Ms Hall, other than a written statement that he is truly sorry for his actions; and
(e)the Applicant repeatedly re-offended after being warned and issued with Family Violence Restraining Orders.
Having regard to all of the above factors, I find that this consideration weighs heavily against revocation of cancellation of the visa.
Third primary consideration: Best interests of minor children in Australia affected by the decision (para 8.3)
Paragraph 8.3 of Direction 90 provides:
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to ... not revoke the mandatory cancellation of the visa, is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a)    the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)    the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)    the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)    the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)    whether there are other persons who already fulfil a parental role in relation to the child;
f)     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)    evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)    evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant does not have any minor children of his own in Australia. In his ‘Personal Circumstances Form’ (the PCF) he listed his two sons, although it is clear that they are not minors.[80]
[80] Exhibit R2, 48.
The Applicant listed his granddaughter ‘Anna Liece’ with a birthdate of ‘2220’ as a minor child in his life.[81] This daughter belongs to one of his sons, Levi Richey. Mr Levi Richey also provided a witness statement in support of his father and attended the Tribunal hearing to give oral evidence.[82]
[81] Ibid 50.
[82] Exhibit A7.
In his statement, Mr Levi Richey, said the following:[83]
We have so much to catch up on especially with his granddaughter…, she’s running around like a little gremlin now, big blue eyes like her granddad. I just want my dad to have to chance to come back into Australia and have more laughs and birthdays and Christmas’s just a chance to make more memories with his family and do well or there will be no memories to make. If my dad was to get deported it would be devastating our loss would be eternal [Applicant’s granddaughter] will have no memory of him.
(Name redacted.)
[83] Ibid.
Mr Burgess referred the Applicant to his PCF where his granddaughter’s name is given as ‘Anna Liece’, which is not her name.[84] The Applicant responded stating that he got somebody else to fill out the form. He said he had only seen his granddaughter once and had not been able to buy her an ice-cream or give her a kiss on the forehead.
[84] Transcript, 30–31.
I find that it is in the best interests of the Applicant’s granddaughter that the cancellation of the visa is revoked however I give this lesser weight.
My reasons for doing so are that the Applicant has said he will live in Kalgoorlie and his sons live in Perth.[85] The Applicant has had very little input into his granddaughter’s life due to his incarceration and detention and has not had the opportunity to develop a relationship with her. There is also no independent evidence as to the effect a separation would have on the minor child.
[85] Ibid 31.
I acknowledge the Applicant’s comments that he did not wish for his relationships to be reduced to a ‘plastic box’ and he wanted the opportunity to make new memories with his family.[86] I therefore find that the consideration, best interests of minor children in Australia affected by the decision, weighs moderately in favour of revocation of the cancellation of the visa.
[86] Ibid 53.
Fourth primary consideration: Expectations of the Australian community (para 8.4)
Paragraph 8.4 of Direction 90 relevantly provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/ material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
As noted by Senior Member Dr Evans-Bonner in the recent decision of Garland and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 2022.
99.Thus, I must give effect to the “norm” stipulated in para 8.4(1) of Direction No 90, being that the Australian community expects non-citizens to obey Australian laws whilst in Australia.
100.As is evident from the reference to the “norm” in para 8.4(1) of Direction No 90, I am being told unequivocally what the community’s expectations are. Further, para 8.4(4) of Direction No 90 confirms more explicitly that the Australian community’s expectations are what the Government deems them to be, because decision-makers are directed to proceed based on the Government’s views about community expectations without independently assessing them.
101.In this regard, I agree with the observations of Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143, which were adopted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman). In Wightman, Deputy President Boyle stated, at [85]–[86]:
... Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195. It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196. It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
102.Further detail about the Australian community’s expectations with respect to certain types of conduct, is given in para 8.4(2) of Direction No 90. That paragraph states that the Australian community expects that the Australian government should cancel a non-citizen’s visa if they raise serious character concerns, including through specific conduct listed in sub-paras 8.4(2)(a)–(f). The types of specific conduct listed include the commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled. As I noted above, on two occasions when sentencing the Applicant for the Cancellation Offences, the sentencing Judge referred to the victim as being “vulnerable” (G4/33; 35), and I accept that assessment. I also found that the offending was violent and serious. Therefore, as this type of offending raises serious character concerns, the Australian community would expect the Applicant’s Visa to remain cancelled.
103.Paragraph 8.4(3) of Direction No 90 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(Original emphasis.)
The Respondent has not submitted that principle 5.2(5) of Direction 90 is directly engaged in that the inherent nature of certain conduct such as that for which the Applicant was convicted is so serious that even strong countervailing considerations are insufficient to not refuse the visa even if the Applicant does not pose a measurable risk of causing physical harm to the Australian community. Rather, in observing the norm and in accordance with the guidance provided by principles 5.2(2) – (4) of Direction 90, the Australian community would expect that the Applicant should not hold a visa on account of his offending.
The nature of the crimes for which the Applicant was convicted have significantly breached the public trust and would give rise to an expectation on behalf of the Australian community that he should not enjoy the ‘privilege’[87] of holding a visa.
[87] Direction 90, para 5.2(1).

I find that moderate weight should be given to this consideration against revocation of the cancellation of the visa.
OTHER CONSIDERATIONS
Paragraph 9 of Direction 90 sets out the ‘Other considerations’ to be taken into account as follows:
(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
International non-refoulement obligations (para 9.1)
There is no evidence before the Tribunal to suggest that this is a relevant consideration. Accordingly, neutral weight should be given to this consideration.
Extent of impediments if removed (para 9.2)
Paragraph 9.2 of Direction 90 provides:
(1) Decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)     the non-citizen’s age and health;
b)     whether there are substantial language or cultural barriers; and
c)   any social, medical and/or economic support available to them in that country.
The Applicant is currently 58 years of age and as demonstrated by his movement records, has spent the majority of his life living in New Zealand. During his evidence, the Applicant indicated that he was gainfully employed in New Zealand as a ‘baker’ and then worked in ‘construction and other labouring jobs’.[88] He has not declared any medical or psychological conditions and has not said he has any fear of returning to New Zealand. The Applicant also said he was a baker by trade and a highly skilled construction labourer in housing and property development.[89]
[88] Transcript, 33.
[89] Exhibit A5.
The Applicant has said he would be homeless if he returned to New Zealand with little or no family support there. However, the Applicant has familiarity with the country and its culture. As noted, the Applicant has spent the majority of his life in New Zealand, which indicates he would not have difficulty establishing himself again there.
I accept that re-locating to New Zealand would present some challenges for the Applicant, however, I find this to be only of a minor nature. As noted, the Applicant has described himself as ‘highly skilled’; has a work history; and is familiar with the job market in New Zealand. Therefore, he should be able to obtain gainful employment in New Zealand.
I therefore give this consideration, extent of impediments if removed, limited weight in favour of revocation of the cancellation of the visa.
Impact on victims (para 9.3)
As noted during the hearing, the Respondent conceded this is a relevant consideration as Ms Hall is a victim of the Applicant and has given evidence in support of revocation of the cancellation of the visa. Balanced against this, however, is my finding that there is a real possibility of the Applicant re-offending in a way that could cause serious harm to Ms Hall.
Because of my real concern that Ms Hall could again be subjected to domestic violence, I give this consideration neutral weight.
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.
The 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 two sons, his granddaughter and Ms Hall, all of whom live in Australia.
The Applicant has lived in Australia since 2015 on a permanent basis but did spend periods here from when he was 13 years old. The Applicant was the subject of an incident report with the Western Australia police in November 2016, again in February 2017, had a drink-driving conviction in September 2017, an assault conviction in January 2020, breach of a FVRO in April 2020 and his conviction in March 2021 for unlawfully assaulting Ms Hall. His offending and conduct have been frequent and of increasing seriousness.
I therefore find that the Applicant’s offending began soon after arriving in Australia and continued until he was incarcerated.
Little evidence was led about the Applicant’s positive contribution to the Australian community. A statement from Mr Jayira Websdale dated 14 July 2021 was provided as part of his PCF, who said he had known him for a few months and found him to be kind and empathetic.[90]
[90] Exhibit R2, 65.
The Applicant has stated that he has worked in Australia, and I give this some weight in finding there has been some positive contribution to the Australian community.
In considering the strength, duration and nature of the Applicant’s family ties I have had regard to the statements provided by both his sons, Levi Richey and Jacob Richey. They both, understandably wish for their father to remain in Australia and Levi wants his daughter to know her grandfather. Ms Hall has also offered unwavering support and love for the Applicant.
I find that the Applicant’s sons and partner would all be impacted negatively by non-revocation of the cancellation of his visa, and I give this moderate weight in favour of revocation of the cancellation of the visa.
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.
There is no evidence suggesting that my decision would have any impact on Australian business interests, and I give this consideration neutral weight.
THE WEIGHING EXERCISE
Direction 90 gives direction to a decision-maker on how to apply the primary and other considerations. Relevantly, paragraph 7 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 considered how the balancing of the considerations should be done. Whilst referring to Directions 65 and 79, Direction 90 is materially in the same terms and the same principles apply. Colvin J in Suleiman v Minister for Immigration and Border Protection[91] and Wigney J at para [22] of the Full Court’s decision in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[92] both considered this issue. The Tribunal in CZCV v Minister for Home Affairs[93] at para [164] noted 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…
[91] [2018] FCA 594.
[92] [2021] FCA 775.
[93] [2019] AATA 91.
Having regard to the guidance outlined above and the approach directed by the above cases, I have proceeded to weigh the various considerations in the Direction 90.
With respect to the first primary consideration, the protection of the Australian community, I find that the consideration weighs heavily against revocation of cancellation of the visa.
Specifically, I find that the nature and seriousness of the Applicant’s offending and conduct to weigh heavily against revocation of the cancellation of the visa. I find the nature of the harm to the community if the Applicant re-offends to be significant and I find his risk of re-offending to be high.
With respect to the second primary consideration, family violence, I find this weighs heavily against revoking the cancellation of the visa.
With respect to the third primary consideration, best interests of minor children, I find this weighs moderately in favour of revocation of the cancellation of the visa, but only minor weight is to be given to this consideration.
With respect to the fourth primary consideration, the expectations of the Australian community weigh against revocation of the cancellation of the visa and I give this significant weight in favour of not revoking the cancellation of the visa.
In relation to the ‘other considerations’ I find international non-refoulement obligations and the impact on Australian business interests to be neutral in my consideration.
With respect to the extent of impediments if removed I give this limited weight in favour of revocation.
With respect to the impact on victims I give this neutral weight in respect of revocation of the cancellation of the visa. I give limited weight to links to the Australian community in favour of revocation of the cancellation of the visa.
Having weighed the considerations in favour of revocation or non-revocation of the cancellation of the Applicant’s visa, I find that the primary considerations of protection of the Australian community, family violence and expectations of the Australian community weigh heavily against revocation of cancellation of the visa. The factors which I have found weigh in favour of revocation only do so to a minor extent and are insufficient to outweigh the other considerations.
After considering all of the evidence and the relevant evidence I find that the correct and preferable decision is that the Applicant does not pass the character test and that there is not ‘another reason’ to revoke the decision to cancel the Applicant’s visa, therefore, the decision not to revoke the cancellation of the Applicant’s visa is affirmed.
DECISION
The decision of the delegate of the Respondent dated 19 July 2022 not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.

I certify that the preceding 189 (one hundred and eighty nine) paragraphs are a true copy of the reasons for the decision herein of Member M East

...................[Sgd]......................................
Associate
Dated: 12 October 2022

Date of hearing: 23 September 2022

Applicant: In person

Counsel for the Respondent: Ashley Burgess

Solicitors for the Respondent: Sparke Helmore Lawyers

Date of hearing:	23 September 2022
Applicant:	In person
Counsel for the Respondent:	Ashley Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers