Ristevski and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2022] AATA 3240

Ristevski and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3240 (31 August 2022)
Division:GENERAL DIVISION
File Number(s): 2022/4899
Re:Nikola Ristevski
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Chris Puplick AM, Senior Member
Date:31 August 2022
Place:Sydney

The decision under review is set aside and in substitution the cancellation of the Applicant’s visa is revoked.
.................................[sgd].......................................
Chris Puplick AM, Senior Member
Catchwords
MIGRATION – discretionary visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction 90 – protection of the Australian community – nature and seriousness of offending conduct – risk of reoffending – family violence – best interests of minor children – expectations of the Australian community – impediments to removal – impact on victims – links to the Australian community – decision set aside and substituted
Legislation
Crimes Act 1900 (NSW) ss 59(1), 61
Migration Act 1958 (Cth) ss, 499, 500, 501
Cases
AFY18 v Minister for Home Affairs [2018] FCA 1566
Ali and Minister for Home Affairs [2018] AATA 2512
CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858
CZCV and Minister for Home Affairs (Migration) [2019] AATA 91
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
Dharma and Minister for Home Affairs (Migration) [2018] AATA 2757
Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Falzon v Minister for immigration and Border Protection [2018] HCA 2
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762
JSMJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4183
Matthews v Minister for Home Affairs [2020] FCAFC 146
Mendoza and Minister for Immigration and Border Protection [2018] AATA 686
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Home Affairs v Stowers [2020] FCA 407
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649
Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 96 ALJR 13
PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
R v JT [2007] NSWDC 377
R v Saunders [2017] SASCFC 86
R v Wood [1994] QCA 297
Shi v Migration Agents Registration Authority [2008] HCA 31
Slynt v Slynt [2017] FamCA 812
Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875
Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Sasho Kjosev and Pece Nedanovski, ‘Health care system in the Republic of Macedonia – current situation and development perspectives’ (2008) 1 Revista Tinerilor Economisti (The Young Economists Journal) < Health Organisation Europe, WHO reignites action on mental health in North Macedonia: < FOR DECISION
Chris Puplick AM, Senior Member
31 August 2022

Mr Nikola Ristevski (the Applicant) has applied to this Tribunal seeking review of the Respondent’s decision not to revoke his visa cancellation.
The Applicant is 46 years of age and a citizen of what is now North Macedonia.[1] In April 2003 he married his current wife Mrs Julia Ristevski, an Australian citizen, in North Macedonia.
[1] At the time of his birth he was a citizen of what was then Yugoslavia. After the disintegration of that nation in 1991 he became a citizen of what was then known as the Former Yugoslav Republic of Macedonia (FYRM). After the Prepsa Agreement signed with Greece in June 2018 the country’s name was formally changed to the Republic of North Macedonia.
He arrived in Australia on 13 July 2003 and has not left the country since that date.
On arrival he was the holder of a Partner visa (Subclass 309). On 10 November 2005 he was granted a permanent residency Spouse (Class BC) (Subclass 100) visa. It was this visa which was cancelled by the Minister (the Respondent), via his delegate, on 11 April 2022.
Prior to this cancellation, the Applicant had been advised by the Respondent on 19 July 2019 that consideration was being given to the cancellation of his visa and he was given the opportunity to make representations as to why this course of action should not be taken. The Applicant made such representations on 5 August 2019 but after giving them due consideration the Respondent proceeded to make the final cancellation decision.
On 14 June 2022 the Applicant applied to this Tribunal for a review of that cancellation decision and the matter was heard on 18 August 2022 with the hearing conducted in person and both parties legally represented. The members of the Applicant’s family (his wife, three children and his father-in-law) attended the proceedings either to give evidence, or to support the Applicant or both.
Under the provisions of subsection 500(6L) of the Migration Act 1958 (Cth) (the Act) the Tribunal is required to make its decision on this application by 1 September 2022.
The visa cancellation
The Respondent cancelled the Applicant’s visa pursuant to subsection 501(2) of the Act which provides that:
The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
The “character test” itself is set out in subsection 501(6) of the Act which provides, inter alia, that a person does not pass the character test if they have “a substantial criminal record” (para 501(6)(a)). In turn, a “substantial criminal record” is defined (paragraph 501(7)(c)) as where “the person has been sentenced to a term of imprisonment of 12 months or more”.
On 25 February 2019 the Applicant was charged with a number of offences and upon conviction was sentenced to an aggregate term of imprisonment of 24 months with a non-parole period of 18 months.
The Applicant appealed against both some of the convictions and all of the sentences and on 6 July 2019 the District Court quashed two of the convictions and furthermore allowed his appeal against the severity of all of the sentences on the other counts. In lieu thereof the Applicant was sentenced to a term of imprisonment of 19 months with a non-parole period of 13 months and 25 days with a Conditional Release Order of 12 months’ duration commencing upon expiry of the non-parole period.
The 19-month sentence clearly exceeds the 12 month definition for a “substantial criminal record” whereupon the Applicant automatically fails the character test.[2]
[2] Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].
Once a visa has been cancelled, that cancellation may be revoked under the provisions of paragraph 500(1)(b) of the Act which empowers this Tribunal to review:
decisions of a delegate of the Minister under section 501 (subject to section (4A)).[3]
[3] In this matter subsection 500(4A) which relates to protection visas, security matters and mandatory cancellations is not relevant.
Under section 499 of the Act the Minister may give directions to decision-makers about how they are to assess applications for the revocation of a visa cancellation and such decision-makers are obliged to comply with any such direction (s 499(2A)).
In this case the Minister has made such a direction: Direction 90 – Visa refusal and cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (MD90).
An initial cancellation decision made under subsection 501(2) is a discretionary decision by the decision-maker (“the Minister may cancel) whereas decisions under section 501CA are mandatory (“the Minister must cancel).
The Applicant’s personal narrative[4]
[4] Applicant’s Tender Bundle at 20-27, Applicant’s Statutory Declaration dated 14 August 2022.
The Applicant was born in what is now North Macedonia in December 1975 and he completed schooling and military service there and acquired some recognised trade skills. In April 2003 he met and married his current wife, Julia Markovski who was an Australian citizen visiting her grandparents (since deceased) in North Macedonia at the time.[5]
[5] G-documents at 94-95.
On arrival in Australia, having been sponsored by his wife, the couple lived with Julia’s parents for a number of years while they worked to earn sufficient money to purchase land and build their own home, into which they moved in 2009.
There are three children to the marriage, an adult daughter (IR) and two minor children: a daughter (AR) born in 2008 and a son (JR) born in 2009.
The Applicant has had a steady employment history, working from 2003 to 2010 at Hunter refrigerated distributors in Newcastle and then (after a short break when he was enrolled in TAFE improving his language skills) being employed by NSW Department of Health at John Hunter Hospital. He remained there for a period of nine years.[6] Between his release from custody in July 2019 until his being taken into immigration detention in June 2022 he held a number of part-time jobs.
The Applicant’s offending record[7]
[6] Applicant’s Tender Bundle at 9-10.
[7] Respondent’s Tender Bundle at 3-11; G-documents at 50-51.
It appears that prior to the offences which caused the Applicant to appear before the courts there had been three previous occasions when his behaviour had been brought to the attention of the Police in the context of verbal domestic disputes.[8] The first of these appears to have been in 2007, but the details of any of these are not before the Tribunal.
[8] G-documents at 57.
On 10 February 2018 following a domestic violence incident (see below) the Police issued a provisional Apprehended Violence Order with “strict bail conditions”[9] against the Applicant directing, inter alia, that he not threaten, stalk or go within a prescribed distance from his wife or her place of residence.[10]
[9] Respondent’s Tender Bundle at 23.
[10] Ibid at 102-103.
On 9 November 2018 in the Newcastle Local Court Magistrate Ellis issued a final Apprehended Violence Order (AVO) against the Applicant in favour of his wife. Her Honour cautioned both parties as follows:
I MAKE THE FINAL ORDER FOR THE APPREHENDED VIOLENCE ORDER.
Mr Ristevski I am ordering a report to give me some options other than a further period of custody. I don’t know what that report will say and I also don’t know if I will still sentence you to imprisonment for longer but I need those options available to me.
I HAVE MADE THE FINAL ORDER OF AN APPREHENDED VIOLENCE ORDER. EVEN WHEN YOU ARE RELEASED YOU ARE TO NOT GOWITHIN 50 METRES OF WHERE MRS RISTEVSKI LIVES. YOU ARE NOT ALLOWED TO ASSAULT OR INTIMIDATE OR THREATEN OR HARASS HER AND ORDER (9) IS~
PROSECUTOR: That was the one you just mentioned with the distance, it’s 6.
HER HONOUR: (6) IS NOT TO CONTACT HER BY ANY MEANS SO NO
TEXTING, NO TALKING TO HER, NO FACEBOOK, NO GETTING ANYONE
ELSE TO CONTACT HER.
Mrs Ristevski, there is only so much I can do. I am making an order to separate Mr Ristevski from you. You need to tell your family that that is a court order and it has got nothing to do with you. If you breach it you can be charged with aiding and abetting a criminal offence so there’s serious things for you to consider. My strong advice to you is to not contact him, not allow him back in the home. That is the court order I have made.[11]
[11] Tender Bundle at 130.
On 25 February 2019 the Applicant appeared before the Wyong Local Court before the same Magistrate charged with the offences of:
·assault occasioning actual bodily harm
·common assault (3 counts)
·stalk/intimidate intend fear (3 counts)
·contravene apprehended violence order (2 counts).
All the offences in question were allegedly perpetrated by the Applicant against his wife.
The Applicant was convicted by the Magistrate on all charges and on this occasion the Court imposed an aggregate sentence of two years imprisonment with an 18-month non-parole period.[12]
[12] Ibid at 135.
On 16 July 2019 in the District Court Wilson J determined the Applicant’s appeal against both several of the convictions and all the sentences imposed by the Local Court Magistrate:
(a)in relation to the first charge of common assault[13] against his wife, the Judge quashed the findings of the Magistrate saying, inter alia:
[13] Date of the incident was 9 February 2018.
[i]t is beyond question that the Learned Magistrate ought not to have been satisfied to the requisite degree, that is beyond reasonable doubt, as to the essential elements of the offence, particularly noting the offence was never the subject of clear particularisation or evidence.[14]
[14] G-documents at 43.
(b)in relation to a finding that the Applicant had breached subsection 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) which provides that:
person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence
which again related to an incident on 9 February 2018 involving the Applicant’s wife, the Judge found that:
[t]he Crown on appeal quite fairly has conceded that the prosecution cannot prove that at the time of the conduct referred. to, that the appellant intended to cause the complainant to fear physical or mental harm and it was not open to the Magistrate to find this element proved at first instance.[15]
[15] Ibid at 45.
This finding of the Magistrate was also quashed and in relation to the sentences imposed for the two quashed offences (being nine months and ten months respectively) these were also quashed.
(c)there were then a series of five “sequences” of offences which related to charges of assault occasioning actual bodily harm, on each of which the Magistrate had imposed an indicative sentence of 18 months imprisonment:
(i)in relation to three of the five offences the Judge found that the indicative sentence imposed (18 months imprisonment) by the Magistrate was, in each case, “excessive” and His Honour reduced each to a sentence of six months;[16]
[16] Ibid at 46-48.
(ii)in relation to a fourth offence, again the Judge found the indicative sentence “excessive” and substituted an eight-month sentence;
(iii)in relation to the remaining offence, His Honour noted that:
The Crown has conceded today that the threshold under s 5 is not met and that imprisonment is not the appropriate sentence in respect of that matter;
His Honour then went on to describe “the relatively trivial nature of the offending” and imposed a conditional release order for a period of 12 months.
(d)in relation the offence of breaching an AVO the Judge described the offence as “a blatant and impermissible breach of the domestic violence order”, but went on to say that:
“it does not warrant an indicative sentence of 18 months as provided by the learned Magistrate, in circumstances where the maximum penalty of imprisonment to be imposed is two years.[17]
His Honour found that the appropriate sentence was one of four months.
[17] Ibid at 48.
In his concluding remarks His Honour stated:
In sentencing the appellant in relation to the outstanding matters for which indicative sentences have been provided I find that special circumstances exist so as to warrant a departure from statutory ratio parole to non -parole. The basis for that finding is two-fold, one that the appellant has been in prison for some considerable time prior to today. Secondly, that he has been successful in relation to various aspects of his appeal and thirdly that this is the first time in full time custody for the appellant.
I impose an aggregate sentence of 19 months, to date from 23 May 2018 and to expire on 22 December 2019, together with a non-parole period of 13 months and 25 days, which will expire on 17 July 2019, entitling the appellant to be released on parole tomorrow.[18]
[18] Ibid at 49.
The Applicant was released on parole on 17 July 2019 and completed his parole (five months and five days) without incident. He remained in the community until he was taken into immigration detention on 9 June 2022 (some 34+ months) following the cancellation of his visa.
The Applicant pleads that the delay of some 34 months between the issue of a notice and the final decision of the Minister should be taken as indictive of the low priority or low risk-assessment held by the Minister, whereas the Respondent points out that such delay is more likely the result of the Minister awaiting the outcome of the Applicant’s appeal against the original sentence before making a final determination. The Tribunal is more inclined to take the Respondent’s position on this.
The Applicant has no other offences on his record (apart from three relatively minor traffic offences).[19] During his time in custody there were no incidents reported and indeed a Sentencing Assessment Report dated 21 February 2019 refers to the fact that he “received positive feedback about his performance in the wing”.[20] There are also Case Notes from the Department of Corrective Services (NSW) referring to the “great job” done by the Applicant in relation to his assignments at the John Moroney Correctional Centre.[21]
[19] Respondent’s Tender Bundle at 8.
[20] Applicant’s Tender Bundle at 12.
[21] Respondent’s Tender Bundle at 35.
After the Applicant’s release from custody on 17 July 2019 until such time as he was taken into immigration detention on 9 June 2022 the Applicant did not come to the attention of any authorities for any offences committed. It is however, the case that on two further occasions (25 October 2019 and 15 October 2020) the Applicant was involved in domestic arguments with his wife such that they each resulted in the Police being called, but neither resulted in any charges being laid. Furthermore, in neither case does the Police report suggest the recording of expression of fear on the part of the Applicant’s wife.[22]
[22] Ibid at 14-16.
THE INCIDENTS of offending
The matters which brought the Applicant before the Court occurred in a relatively short period between February and May 2018, although as noted, there were antecedent events dating back to 2007.

The Respondent in its Statement of Facts, Issues and Contentions (SFIC) outlines the offending behaviour as follows:[23]
“21. On 9 February 2018, the applicant’s 13-year-old child called the police and told them the applicant had been physically abusive. Police attended and observed the applicant’s wife, Mrs Ristevski, was injured. The applicant claimed to have injured her in self-defence. This led to the applicant’s conviction for assault occasioning actual bodily harm (DV)-T2. An Apprehended Violence Order (AVO) was issued against the applicant for the protection of his wife.
22. On 4 April 2018, the Police attended the applicant’s wife’s residence. The applicant’s wife confirmed that the applicant had been living at the residence, stated that he had continued to verbally abuse her, and indicated that she feared he would continue to damage property. This constituted one of the applicant’s convictions for contravene prohibition/restriction in AVO (domestic).
23. On 20 May 2018, the applicant was again at his wife’s residence, when he grabbed Ms Ristevski by the hair and threatened her with a pair of scissors. The applicant threatened to kill her if she said anything. The next day, the applicant returned to the property and assaulted his wife in front of one of their children. After their children had left for school, the applicant told his wife that he would kill her and the children. This led to the applicant’s convictions for a further count of contravene/prohibition/restriction in AVO (domestic), two counts of common assault (DV) and two counts of Stalk/intimidate intend fear physical etc harm (domestic)-T2.”
[23] Respondent’s Statement of Facts, Issues and Contentions (SFIC) at 21-23. References omitted.
In relation to the 9 February 2018 incident the Applicant was charged with several offences and convicted in the Local Court. However the offences of common assault and stalk/intimidate were quashed by the District Court. They cannot therefore in any way be held against the Applicant.
There remains a matter of an injury sustained by Julia Ristevski which resulted in some swelling to her left middle finger being sustained, according to the Police Report, as a result of fending off the Applicant’s attempt to kick her.[24] This was the offence which the Sentencing Judge held to be “under the threshold” for a custodial sentence to be imposed. In the Applicant’s version of events he claims that the kick was “in self defence”.[25]
[24] G-documents at 58.
[25] Respondent’s Tender Bundle at 122.
The Applicant’s larger version of events contextualises this incident within a wider framework of a domestic dispute which had been going on for some time and which involved the intervention of his mother-in-law, demanding that if the couple split she be reimbursed for the time the couple had lived with her on their first arrival in Australia, a period of some seven years, when they lived with her rent-free. The Applicant states:
“We were arguing and Julia got involved and that’s when I injured Julia’s finger. I did not intend to hurt her and I didn’t realise she was injured at the time. But I did injure Julia’s finger and I am very sorry for this.”[26]
[26] Applicant’s Tender Bundle at 22, Applicant’s Statutory Declaration dated 14 August 2022 at [18].
He also admitted that, in anger, he suggested to the Police that his wife was mentally ill and that she had attempted to run him over with her car when he was riding his bike back from the mother-in-law’s place where the argument had started. He says that “I regret ever saying those words”.[27]
[27] Ibid at 23, [20].
The Tribunal in no way seeks to “go behind” the findings of the Court as to the facts upon which any conviction was based and accepts the facts as set out by the Court in relation to the relevant charges,[28] bearing in mind the decision of the District Court to quash at least two of those convictions.
[28] HZCP v Minister for Immigration and Border Protection [2018] FCA 1803; Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575 at [596]; Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649.
In relation to the charge which arose from the same incident, but which was laid by the Police at a later date, concerning the breach of the AVO, the Applicant asserts that he returned to the family home – something prohibited by the AVO – only after his wife informed him that she had taken steps to have the AVO lifted. He claims that he had no reason to disbelieve this and that, as a result he did not know that, nor did he consciously intend to breach that Order.[29] In the meantime, after the Police intervention, the Applicant moved back to living separately with his uncle in Maryland, where he had lived previously after the initial issuing of the AVO.
[29] Applicant’s Tender Bundle at 23, Applicant’s Statutory Declaration dated 14 August 2022 at [23]-[24].
The Police Report of 7 April 2018 states:
“Around 14 March 2018 the accused has moved back into the family home at… at the request of the victim who wanted to try and work in the relationship. The accused has continued to reside at the residence until the victim and accused had an argument on 3^rd April 2018 and he was asked to leave, the accused returned briefly on 18 April 2018 to collect property.[30]
The accused made certain admission to residing… with the victim on her invitation. The accused agreed he was present in court on 22 February 2018 when the ADVO and bail conditions were continued.”[31]
[30] G-documents at 61.
[31] Ibid at 62.
This matter needs some further elucidation. In her evidence to the Tribunal the Applicant’s wife confirmed that she had sought to have the Court amend the AVO to terminate it at an earlier date and had this done at some time in 2019 after the Applicant’s release from custody. She asserted that some sort of variation had been made, but there is no formal record of this.
What is evident is that, contrary to the express warnings of the Magistrate, the Applicant’s wife made contact with the Applicant asking him to return to the family home because she was finding it increasingly difficult to cope both in emotional and financial terms and properly care for their children. Despite denials by both parties to the parole authorities[32] the Applicant and his wife were in touch with each other in breach of the conditions of the AVO. Furthermore they agreed, knowing that the Applicant’s return was prohibited, that they would go ahead on the basis that if there were no incidents between them to draw attention to their renewed cohabitation then there would be, as the Applicant put it in his oral testimony, “no consequences”. Both parties knowingly entered into an arrangement for the return of the Applicant to the family home in breach of the terms and conditions of the AVO and there were “consequences” of this because there was an incident between them which came to the attention of the Police.
[32] Respondent’s Tender Bundle at 61 and 67.
While the parties have sought to excuse their behaviour in terms of needing to provide for the welfare of their family, this is not an acceptable excuse for a flagrant and knowing breach of the law and cannot but be a factor counting against the Applicant in relation to any assessment of his claims to be prepared to obey the laws of Australia.
The 20 May 2018 incident appears to involve somewhat more serious matters in that it appears that the Applicant threatened his wife with a pair of scissors and threatened to kill her and other members of the family. He pushed her into some sort of wall panel and subsequently called her a series of disgusting names such as “fat, ugly bitch” and said, “I will feed you cancer”. According to the Police Report the Applicant’s wife was fearful of serious injury and called out to one of her young children whose intervention appears to have brought the incident to a close.[33] The Applicant is also recorded as saying to his wife, “I will come back and I will kill you if you say anything” and later more generally “I’ll come back after Wednesday and take over. I kill you all”. [34] The Applicant, in his evidence to the Tribunal (below) denies key elements of the Police Report including denial that a pair of scissors were involved or that he spoke some of the words alleged. In his cross-examination of Mrs Ristevski, the Minister’s legal representative did not press her directly on any of these matters and she was not asked to confirm or deny that she had been threatened with a pair of scissors. The Tribunal repeats however that it is not permitted to and does not draw any conclusions contrary to the findings of fact made by the Court.
[33] G-documents at 64-65.
[34] Respondent’s Tender Bundle at 18.
The Sentencing Judge (while reducing the sentence from 18 months to eight) nevertheless characterised this incident as “a serious matter”.[35] His Honour’s further sentencing in this matter took account of the fact that the incident occurred while the Applicant was on bail.
[35] G-documents at 46.
The Applicant’s own Statutory Declaration in relation to this incident does not admit of any of the more serious elements of this incident, namely the physical and verbal threats and abuse.[36]
Evidence given BFORE THE TRIBUNAL
[36] Applicant’s Tender Bundle at 24, Applicant’s Statutory Declaration dated 18 August 2022 at [25].
Applicant
The Applicant provided a written submission to the Tribunal and gave evidence where he was also cross-examined by the Respondent and the Tribunal itself.
In relation to a number of the specific matters recorded in the Police records of the three principal incidents which resulted in charges, the Applicant admitted to the veracity of most but, in relation to several key matters, indicated that he could not remember or recall details. In particular he denied making most of the offensive verbal comments to his wife and in particular denied (in the May 2018 incident) that he had ever threatened all the members of his family, as he would never threaten harm to his children.
Under cross-examination the Applicant admitted that he and his wife had taken steps involving his return to the family home which they both knew were in breach of the conditions of the AVO and his bail conditions (see above).
The Applicant admitted that, for a prolonged period of time, he blamed his wife for many of the domestic arguments because she had adopted a position where she did not trust him (accusing him of having affairs) and where she was allegedly prone to make wild and unsubstantiated allegations against him. On several occasions he felt himself to be the “victim” of her behaviour and, on at least one occasion he had contacted the Police to complain about his wife’s threatening behaviour.[37]
[37] Respondent’s Tender Bundle at 133.
The Applicant said that his time in custody, especially during his period in the Glen Innes Correctional Centre he had come to a realisation that it was not appropriate to blame his wife for the various incidents and that he should take responsibility for them. This matter is referred to further below.
The Applicant stated further that he had been given “a book” on domestic violence by the parole authorities and that he had read the book and then followed-up by consulting a number of online programmes dealing with the topic. These had resulted in his accepting his responsibility for his actions and had made him appreciate the seriousness of his behaviour. Recognising the need to address his own situation, the Applicant indicated that since leaving prison he had voluntarily attended some five sessions at the James Fletcher Psychiatric Rehabilitation Service in Newcastle to address the issues of his own mental health wellbeing.
The Applicant also said, and his wife confirmed, that they now regularly spend time together reading the Bible and that this had served to strengthen their faith and provided them with some significant shared activity.
IR (Applicant’s adult daughter)
The Applicant’s adult daughter (IR) provided a statement and gave evidence to the effect that she and members of the family were devastated by their father’s removal from their lives; that his incarceration had led to great difficulties for the family in both emotional and financial terms; that the Applicant had been a central figure in their lives; and that her younger siblings were experiencing health problems as a result of their father’s absence. She told the Tribunal that her father had changed considerably as a result of his incarceration and that he was now even more engaged and supportive of his wife and children. Her evidence is also discussed further below.
Julia Ristevski (Applicant’s wife)
Julia Ristevski, the Applicant’s wife provided a statement and gave evidence. She stated that she could not remember making some of the statements to Police which are recorded in the relevant documents and in particular insisted that she had “never” held any fears for her physical safety in terms of the Applicant’s behaviour. She claimed that some of the things which she had reportedly said to the Police were not necessarily true and may have been given under stressful circumstances. Her concessions about the arrangements by both parties to breach the conditions of the AVO have been noted above.
She conceded that at one stage she had given thought to a divorce, but the matter had never been pursued any further and the Applicant himself said that he had never contemplated any such thing.
Mrs Ristevski explained that in the absence of her husband she had faced significant financial hardship as she was not working and relied upon government support via a “pension” (unspecified) and child support benefits.
It is difficult for the Tribunal to assess the level of credibility to be placed in Mrs Ristevski’s evidence. She claimed to be unable to recall several quite crucial events and contradicted a large number of matters referred to in Police and Corrective Services reports. However, what is clear is that she was clearly desperately anxious to have her husband return to the family, especially to assist her in caring for and effectively raising her children.
The decision before the Tribunal
The Tribunal must make a simple determination – whether the cancellation of the Applicant’s visa is the “correct and preferrable”[38] decision to be made on the basis of the evidence before the Tribunal.
[38] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 642.
In making that decision the Tribunal stands in the shoes of the Minister [39] but must make its decision on the evidence before it, some of which may not have been before the original decision-maker.[40] However, as explained above, the Tribunal must also have due regard to the provisions of MD90 which became operative as of 8 March 2021.
[39] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9] per Charlesworth J.
[40] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
Ministerial Direction 90
The Direction commences with a Preamble which applies to all parts of the Direction and establishes a number of guiding principles which provide a framework within which decision-makers should approach the task of deciding whether to affirm or set aside a decision made under subsection 501(2) of the Act.
In particular, the Direction provides inter alia that:
·being able to come to or to remain in Australia is a privilege conferred 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;
·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;
·there is an expectation that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct that raises serious character concerns, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community; and
·Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for a short period of time.
Subparagraph 8.1(2) of Part 2 of the Direction starts with a general instruction for a decision-maker to consider the “nature and seriousness of the conduct”.
In terms of the “nature and seriousness of the conduct” the decision-maker is obliged to consider the extent to which the conduct involves crimes of a violent or sexual nature, crimes against women and children and acts of family violence. The decision-maker must also (inter alia) consider the frequency of the offending behaviour and whether it displays and trend of increasing seriousness, the cumulative effect of repeated offending and whether an individual has received prior warning about the consequences of further offending.
The Direction then elucidates four primary considerations which should generally be given greater weight than the other considerations:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
It is worth noting that the issue of “family violence” was introduced into MD90 as a major addition from the set of criteria which existed under its predecessor Ministerial Direction 79. This reflects a clear statement of government/public policy that crimes of family/domestic violence and violence against women or vulnerable people are to be regarded as matters of exceptional seriousness.
Section 9 of Part 2 of the Direction provides that other considerations must be taken into account where relevant, which include (but are not limited to):
·international non-refoulement obligations;
·extent of impediments if removed;
·impact on victims; and
·links to the Australian community, including:
ostrength, nature and duration of ties to Australia; and
oimpact on Australian business interests.
The Tribunal is required to consider each of the items. However, it should be noted that there is ample High Court authority for the principle that it is up to the Tribunal itself to assess the weight which should be given to each of the respective criteria. Explicitly, the Court stated in SZJSS that: “[t]he weighing of various pieces of evidence is a matter for the Tribunal.”[41]
[41] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.
Once weight is assessed for each criterion, where there are competing assessments, and a balance to be arrived at, it becomes a matter of the Tribunal engaging in a process of “calculus” [42] to arrive at a final determination.
[42] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
In determining the “weight” to be given to each of the criteria, the Tribunal assigns:
·“neutral” weight where the criterion counts neither for nor against the Applicant;
·“limited” weight where the criterion counts one way or another but not to any great extent and where evaluation is finely balanced but just falls on one side or the other;
·“moderate” weight where the criterion counts one way or another but it is clear that the evaluation falls on one particular side; and
·“significant” weight where the criterion counts one way or the other very heavily (and in some cases determinatively) on one particular side.
It is important to understand what the Ministerial Direction is and what it is not. In the Preamble to the Direction it states clearly as an “Objective”: (emphasis added)
5.1(4) The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2) of the Act, such decision-makers must comply with a direction made under section 499.

In Matthews the Full Federal Court has explained (in relation to an earlier Ministerial Direction in similar terms):
[i]t is important to emphasise that the express purpose of Direction 65 is “to guide decision-makers performing functions or exercising powers under section 501 of the Act” (para 6.1(4), Direction 65; emphasis added). It remains the task of the Tribunal to determine what is and is not relevant in the circumstances of the individual case.[43]
primary considerations
[43] Matthews v Minister for Home Affairs [2020] FCAFC 146 at [45]. Emphasis added.
Protection of the Australian Community
Under this criterion the Tribunal must give specific attention to:
·the nature and seriousness of the non-citizen's conduct to date; and
·the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness
The Ministerial Direction (at 8.1.1(1)) sets out some guidance as to what is to be regarded as a “serious” offence and the Tribunal “must” have regard to this guidance. The Direction indicates that “violent” crimes; crimes against vulnerable people (including women and children) and acts of family violence are “very” serious matters. Regard must also be had to crimes committed against government representatives (including police) undertaking their duties; crimes committed while in immigration detention and the frequency and increasing trend of seriousness in any offending behaviour. This list also draws attention to it being a serious offence to provide false or misleading information to the Department.
There is no doubt that any offence of domestic violence should be regarded as having a significant degree of seriousness and that should not be understated.
The Applicant’s SFIC states (at [23]):
“We concede the offences the Applicant committed involved family violence and are deemed serious.”
However, the incidents which brought the Applicant before the courts were not at the higher end of any spectrum of seriousness and the characterisation of some of them by the Sentencing Judge as being of a “relatively trivial nature”[44] should also not be ignored. The Tribunal notes that the Delegate, in making their initial assessment records: “I do not accept that his behaviour on this occasion can be characterised as relatively trivial as stated by the appeal Judge.”[45]
[44] G-documents at 49.
[45] G-documents at 18.
The Tribunal does not find itself as emboldened as the Delegate to second-guess or set aside the findings of an experienced appeal judge in the District Court.
In PNLB the Tribunal noted:
The seriousness of the applicant’s conduct is reinforced by the sentences imposed on him. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved.[46]
[46] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22]. MD90 at 8.1.1(1)(c).
The Respondent in its SFIC (at [27]) invites the Tribunal to have regard to the “objective reflection of the seriousness with which the Courts viewed the Applicant’s offending behaviour”. If this is done, then given that the offences in question carry maximum terms of imprisonment of between two and five years,[47] the imposition of sentences of four to eight months by the District Court would imply a judicial view about the objective seriousness as being towards the lower end of the scale.
[47] Crimes Act 1900 (NSW) ss 59(1), 61.
The offences were not committed against any government representatives, they were not committed in prison or immigration detention; they were not actually frequent (albeit non-violent domestic arguments appear to have been so) although there is some evidence of an increasing level of seriousness moving from verbal to physical altercations over the period 2007 to 2018.
Risk of re-offending
In assessing risk, the Tribunal accepts that there is no such thing as an entirely risk-free guarantee of future conduct. The degree of risk is related to both the likelihood of reoffending and the potential gravity of such future offences.[48] Any such assessments must necessarily be speculative and weigh what an Applicant or their witnesses says about his or her own future conduct against what the evidence before the Tribunal suggests.
[48] Dharma and Minister for Home Affairs (Migration) [2018] AATA 2757 at [26]; Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 at [89]-[104].
The Federal Court has also made it clear that each case must be taken on the basis of its particular circumstances and individual set of facts. It has warned that:
There is a risk that a general view might be taken concerning the manner in which the discretion under s 501(1) is to be exercised in all cases where there has been a history of driving offences.[49]
[49] JNMK v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 762 at [22] per Colvin J.
It went on:
The task entrusted to the Tribunal when reviewing the exercise of the discretion under s 501(1) in cases like the present case is to form a particular view about the nature and seriousness of the particular circumstances of the offending by the particular visa applicant and the harm of re-offending and the risk to the community if there was re-offending of that character having regard cumulatively to the nature of the harm from such re-offending and the likelihood of such re-offending. A similar analysis applies where the issue concerns ‘other serious conduct’. It is insufficient to discharge this task by forming generic conclusions without regard to the specific circumstances of the particular case.[50]
[50] Ibid.
The Applicant was assessed by NSW Corrective Services in February 2019 and a risk assessment based on the standard test of the Level of Service Inventory – Revised (LSI-R) found the Applicant to be of low risk.[51]
[51] Applicant’s Tender Bundle at 13.
Although the Applicant claims that his offending behaviour “is a result of an [sic] mental health issues and psychological trauma in my childhood and adulthood”[52] there is no empirical evidence to support this claim, although there is a reference to a serious motor vehicle accident resulting in unconsciousness, hospitalisation and ongoing migraine headaches in one of the Corrective Service case notes[53] and to the existence of an “abusive father” in another.[54] He confirmed details of both at the Tribunal hearing.
[52] G-documents at 89.
[53] Respondent’s Tender Bundle at 52.
[54] Idem.
The Respondent is critical of the Applicant for not having “engaged in any substantive rehabilitation in respect of his offending”[55] whereas the Applicant claims: “I express strong interest for all course and programs regards domestic violence, but Corrective Services couldn’t provide any since I was in low risk reoffending range”.[56] This latter claim is correct in terms of eligibility and is supported by comments in the Corrective Services Sentencing Assessment Report.[57] Moreover it should be noted that the Delegate in making their initial assessment also accepted that no such courses were available while the Applicant was in custody but that he did not seek any post-release.[58] The Tribunal has already noted above the steps taken post-release by the Applicant to undertake visits to the James Fletcher Psychiatric facility.
[55] Respondent’s SFIC at [38].
[56] G-documents at 89; Respondent’s Tender Bundle at 52.
[57] Applicant’s Tender Bundle at 13.
[58] G-documents at 19.
The Applicant himself also appears to have made some progress in terms of recognition and acceptance of both his responsibility and the gravity of his offending. At the time of his first appearance before the Local Court Magistrate he persisted in denials of essential elements of his offending behaviour and sought to cast blame on the victim (his wife).[59]
[59] Respondent’s Tender Bundle at 121-128.
In his Statutory Declaration (14 August 2022) he writes:
“I regret having to put Julia through all these and I do believe my wife is a victim. She had extreme trust issues and I do not blame her for it.
I focused so much in providing my family financial support that I failed to check up on my wife and be fully present for her. I recognize my faults and I regret my actions. I have since understood the power dynamics inside the home and I am working very hard to educate myself further. I have since never engaged in any offending nor have I caused harm on anyone.”[60]
[60] Applicant’s Tender Bundle at 26, at [40] and [41].
Of course, the Tribunal acknowledges that these might simply be self-serving declarations designed to persuade the Tribunal to revoke the cancellation decision, but the presentation by the Applicant as a witness before the Tribunal was such as to be sufficiently suggestive that he is genuine in his current appreciation of his situation and ongoing responsibilities.
In an interview between an officer of Newcastle Community Corrections and the Applicant’s wife conducted in August 2019, the wife is reported as saying that she does “not [f]eel [sic] unsafe” in relation to the Applicant and this sentiment is repeated in the Police Report dated 25 October 2019.[61] In her evidence to the Tribunal (bearing in mind previous comments about credibility) Mrs Ristevski did say that she had no current fear of her husband and indeed has “never” had such fear.
[61] Respondent’s Tender Bundle at 16.
The Tribunal assesses that the Applicant is at low risk of reoffending and that there is no credible risk that any such offending would impact beyond members of his immediate family.
In such circumstances the Tribunal assigns limited weight against the Applicant on this criterion.
Family violence
The Tribunal is given guidance by MD90 as to the factors which it should consider in assessing risk in relation to this matter. The Direction states (at 8.2(3)):
(3) In considering the seriousness of the family violence engaged in by the non citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
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 non-citizen’s migration status should the non-citizen engage in further acts of family violence.
There is no doubt as to where this Tribunal stands in relation to matters of family or domestic violence.
In XNBW Senior Member Illingworth described domestic violence as a "scourge", a "plague” and a "pernicious blight" upon the community.[62] I explained in Mendoza that:
The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.[63]
[62] Ali and Minister for Home Affairs [2018] AATA 2512 at [113]; R v JT [2007] NSWDC 377 at [1]; and Slynt v Slynt [2017] FamCA 812 at [1] respectively.
[63] Mendoza and Minister for Immigration and Border Protection [2018] AATA 686 at [48].
The Court in R v Saunders[64] stated in relation to intervention orders that:
The purpose of those instruments is to prevent acts of domestic violence which are often emotional and psychological as much as physical. Everyone is entitled to feel safe and secure, especially in their own residence. The violation of that sense of safety and security can have profound consequences for the victim. The community expects the law to protect the vulnerable from the oppressor. This has led the courts to treat crimes involving domestic violence as grave crimes. Parliament has enacted laws designed to provide protection to those subjected to domestic violence. The making of intervention orders is intended to provide this protection.
[64] [2017] SASCFC 86 at [37].
The Tribunal also notes the comments of the Court of Appeal of Queensland regarding the importance and significance of domestic violence orders to the effect that:
Domestic violence orders imposing restraints of the kind involved here are practically speaking the only available means of curbing in advance conduct in the domestic context that is violent or likely to lead to violence. Unless breaches of such orders are, and are well known to be, visited with appropriate severity, they will quickly lose their value in the minds of both those who obtain them and of those who are subject to them.[65]
[65] R v Wood [1994] QCA 297
These proceedings of course have nothing to do with the issue of punishment, which has already been determined and over which this Tribunal has no remit,[66] but it is important to emphasise that breaches of DVOs are themselves matters of utmost seriousness. Subsection 501(2) “does not authorise the cancellation of a visa for the purposes of deterring other non-citizens from criminal conduct” [67] but the potential consequences of such conduct need to be clearly understood by offenders.
[66] Falzon v Minister for immigration and Border Protection [2018] HCA 2 at [15].
[67] Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 at [76].
It is important to emphasise that family violence, according to the Ministerial Direction encompasses far more than simple acts of physical violence or aggression. The Direction (at 4.1) states that it may also include “repeated derogatory taunts” and there is evidence of at least one such outburst on the part of the Applicant although this does not appear to be repeated behaviour.
In Vu the Full Federal Court drew attention to the decision of the Supreme Court of the United Kingdom which held that the term “domestic violence” included not only physical violence, but also threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, might give rise to the risk of harm.[68]
[68] Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90 at [55] citing Yemshaw v Hounslow London Borough Council [2011] UKSC 3; 1 WLR 433.
There is no doubt that the Applicant has engaged in acts of family/domestic violence and that these developed beyond mere verbal abuse into physical abuse on at least two occasions. It is also of note that these incidents took place in the view and presence of young, vulnerable children and the potential psychological and emotional impact on them is not to be disregarded.
Family or domestic violence can never be excused, nor can it be contextualised away. As such, this criterion counts significantly against the Applicant.
The best interests of minor children
MD90 (at 8.3(4)) sets out the issues to be considered by decision-makers in this regard. They include matters such as the nature and duration of the Applicant’s relationship with the children, the nature of their parental role, the possible effects of separation on the children, the views of the children (to the extent they are known and taking into account the level of maturity or understanding of the child) and whether or not the children have been exposed to or suffered from physical abuse by the Applicant.
Moreover, the interests of each minor child identified must be taken into account separately and such children’s interests are not subject to some “high level” collective assessment.[69]
[69] Minister for Home Affairs vStowers [2020] FCA 407 at [66].
However, to start at a level of generality, it appears that the Applicant has played a meaningful parental role in the lives of his three children, including the two minors. It was his unchallenged testimony that he was active in support of their educational activities and that he provided financially for the care of all members of his family. He maintained active involvement with the children while he was in custody/detention.[70] His wife describes him as “the best father to our children”.[71]
[70] MD90 at 8.3(4)(a).
[71] Applicant’s Tender Bundle at 30, Julia Ristevski’s Statement dated 14 August 2022 at [14].
Each of the minor children has submitted a written statement in support of their father, and while the Tribunal takes it that they were assisted in writing these statements (which display a maturity beyond their years), there is no reason to doubt that the sentiments which they express are genuine and heartfelt. To the extent that these represent the “known views of the child (with those views being given due weight in accordance with the age and maturity of the child”[72] the Tribunal assigns them some degree of weight.
[72] MD90 at 8.3(4)(f).
The only other person who might play a parental role for the children is their mother[73] and she is anxious for the Applicant to remain in order to support his family.
[73] MD90 at 8.3(4)(e).
Offsetting this must be the recognition that the Applicant’s aggressive behaviour towards his wife may have had some lasting impact on the children.[74] As noted, they were not only witness to such behaviour, but they activated either calls to the Police or interventions such as pleading “Dad, what are you doing?”.[75] Although the Tribunal has reached the conclusion that the likelihood of this behaviour being repeated is low, it remains conscious of the fact that no ironclad guarantee can be given in this regard.
[74] MD90 at 8.3(4)(h).
[75] Respondent’s Tender Bundle at 18.
The Applicant’s wife wrote in her Statutory Declaration:
“10. I was put in a hard position when Nikola was in prison. My kids were devastated at the time; they couldn't eat much because it did not feel right not dining with their father. Every day, the children were mourning. For myself, seeing the kids in that light, I was also devasted. Life was hard for all of us. It was hard keeping positive and continuing living when our family life was ripped apart. It was hard emotionally and financially.
11. When Nikola was released from prison life was really good. We had stability and normality again. Our family was healing. We had the time of our lives during the covid lockdown since we were all home. Kids were home schooling, we stocked up on food, and were together so we bonded. It was also a time when we thought that the pain of Nikola being in prison was over and we were all really overjoyed.
12. Our family also bonded through our faith and religion. Nikola was fantastic. When he returned home after being locked up, his life was transformed by his reconnection to our religion. We would read the Bible together. We used the Bible to work on marriage problems, and it truly bonded us and brought us back together as a family. We both asked if God could forgive us and bring peace to our family. We know there will always be people who would try to meddle with our personal lives. That is why it is important for us to build a strong foundation and we found it through our shared faith.
13. When Nikola was taken away again in June 2022 it was devastating on all of us. We started to rebuild and heal our lives when he returned from prison, now we have to start again from scratch. It’s exhausting. I'm exhausted.”[76]
[76] Applicant’s Tender Bundle at [29]-[30].

Submissions on these points were reinforced by the oral testimony given by the Applicant’s wife at the Tribunal hearing, although, as noted above, some of her testimony about events prior to the Applicant’s incarceration were less than persuasive.
In her submission the Applicant’s 14-year-old daughter (AR) writes:
“I am in High School (Year 9). I am finding it hard to understand what has happened to my family with my Dad’s situation. I am hoping that my childhood does not stay this way without my Dad in my life. I am doing very well in my studies that I look up to my older sister [IR]… I miss my Dad with the things people take for granted everyday (knowing I have my Dad around me).
I feel that I have been punished when my Dad was taken away. It has greatly affected me and my happiness. I have a dream with my Dad in it (Formals, Christmas, Easter, Birthday and everyday life).
I find it hard to talk to my Dad now because of how sad I feel when I talk to him. But when I am afraid I put my trust in Jesus. The impact of what has happened has made me extremely sad and hard to tell someone how much it has hurt me.
My Dad has helped me as long as I’ve known - how to ride a bike, watch me at my dance concerts, worked on projects for weeks and ends, take me to school everyday, and watch me grow as a young girl. I miss the simple things like when my Dad would clip my nails on my toes and fingers.
Life without my Dad in Australia would be horrible that I don’t want to think about it.”[77]
[77] Ibid at [33].
The Tribunal accepts that the best interests of this minor child have been well expressed by herself and her mother and that it would be in her interests for her father to be able to play a continuing positive role in her life.
There is somewhat more evidence related to possible impacts on the Applicant’s 13-year-old son (JR). Medical records submitted suggest that:
His family has recently undergone a stressful time with his father being taken by the immigration department and he is currently in detention. JR’s mother is concerned about tics. She describes eyes blinking.[78]
[78] Ibid at [1], Dr John Ferguson’s Report (Fletcher Clinic) dated 20 July 2022.
However, the report goes on to find that JR was found to be “neurologically normal” and had “no significant behavioural problems”. There is no formal diagnosis of any illness or ailment related to this child, and certainly none with its aetiology in the circumstances of his father’s separation. It was his mother’s testimony that he is still undergoing a more thorough health assessment.
In his written statement JR writes:
“My dad has been my rock, he tells me to keep strong. But that’s impossible. I can’t help for what I am feeling, I don’t know what is happening to me. People look at me different because I twitch. I have been told I have Tourette’s, but it’s the pain of not having my rock with me (my dad). I have been bullied, bruised, money stolen and people laughing at me. The only person besides my Mum and Sisters, is my Dad that has kept me calm. I don’t know how to explain how I miss my Dad. I have not turned on my TV to watch a movie because it reminds me of my Dad as well as riding my bike it reminds me of my Dad, eating on the table reminds me of my Dad, getting picked up from school reminds me of my Dad, taking me to the basketball courts reminds me of my Dad, wrestling reminds me of my Dad , Marco Polo in the pool reminds me of my Dad, saying good night reminds me of my Dad, going to get a special treat like a boost reminds me of my Dad, cleaning the fish tank reminds me of my Dad, going to the beach reminds me of my Dad, talking about certain animals like the hyenas and wild African dogs reminds me of my Dad and finally he gets me a Dog that I can’t go out and play with him because It reminds me of my Dad not being home with me.
I need my Dad home. I am sorry for everything that has happened, am I allowed to say please please please can I have my Dad home again with me.
I know I’m only a young man, but I hope your choice will let me have the love of my Dad in my life.”[79]
[79] Ibid at 34.
The Tribunal accepts the underlying premise of this submission that JR misses his father, that at age 13 he is in a particularly vulnerable stage in his psycho-social development and that his best interests would be served by his father remaining a central figure in his life.
MD90 (at 8.3(4)(d)) invites consideration of the capacity of minor children to maintain contact with the non-citizen if they have been deported and, while there are various means of electronic communication available which would facilitate contact between Australia and North Macedonia, the Tribunal does not regard them as being suitable to meet the needs of these two relevant minor children.
The Applicant’s wife and children are Australian citizens and, given their own lives, and particularly the ages of the children it would not be in the interests of any of them to be deracinated and move to North Macedonia simply as a consequence of the need to maintain the family as a coherent unit.
This criterion counts significantly in favour of the Applicant.
The expectations of the Australian community
Subparagraph 8.4(1) of the Direction provides that:
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 not to allow such a non- citizen to enter or remain in Australia.
Subparagraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
That norm referred to in the Direction is to be understood as providing that:
·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 they may do so, the Australian community expects the Australian Government to not allow such a non-citizen to enter or remain in Australia; and
·non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person not continue to hold a visa.
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 (sub paragraph 8.4(3)).
This consideration is about the expectations of the Australian community taken as a whole, and in this respect, decision-makers are required to proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (subparagraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion which is ultimately determinative.[80] That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in MD90 at paragraph 8.4. Although these principles are discussed in relation to the former MD79, those principles are relevantly analogous in principle with respect to MD90.
[80] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J.
It has further been held that the consideration is “[i]n substance … adverse to any applicant” in virtually all circumstances and was indeed, designed to be so.[81]
[81] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] per Mortimer J.
There is nothing before the Tribunal which would allow it to do anything other than to accept that this criterion weighs against the revocation of the cancellation decision. However, as noted, the weight to be given to this (or any other consideration) is a matter for the Tribunal itself to determine.
In this instance, given the characterisation of the Applicant’s offending by the Sentencing Judge and the number and nature of the offences committed, the Tribunal finds that this criterion counts against the Applicant to a limited extent.
“Other” considerations
Having considered what the Direction designates as “primary” considerations, the Tribunal must turn to those designated as “other”. As Colvin J has made clear in Suleiman that:
[t]o treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.[82]
[82] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28]. Ministerial Direction 65 was a precursor of MD90 and was operative from 23 December 2014 to 28 February 2019.
His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant.[83]
[83] Ibid at [26].
Colvin J’s statement was considered and not disapproved by the Full Federal Court in HSKJ[84] and more clearly supported by Wigney J in FHHM. [85]
[84] Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [31]-[35].
[85] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775 at [21].
This principle has been affirmed in a number of Tribunal cases,[86] for example being made explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:
…factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.[87]
[86] Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947 at [131]-[137].
[87] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858 at [88].
In Tewhare the Tribunal made it clear that:
While affording to primary considerations more weight than the other considerations is generally the case, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[88]
[88] Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875 at [50].
In CZCV the Tribunal stated:
When read in light of the Full Court’s comments in HSKJ, in the Tribunal’s opinion, it would be correct to state that although the Tribunal cannot elevate an other consideration to become a primary consideration, it can give greater weight to an other consideration over a primary consideration.[89]
[89] CZCV and Minister for Home Affairs (Migration) [2019] AATA 91 at [164]. As noted above, Ministerial Direction 65 (effective 23 December 2014 to 28 February 2019) is an analogous predecessor of Ministerial Direction 90 and the relevant parts are expressed in the same terms.
The Full Bench of the Federal Court gave specific reconsideration of the reasoning in Suleiman in its recent determination in FHHM where it said[90]:
[34] The point made in Suleiman was that the other considerations referred to in the direction were not inherently secondary and were not secondary in all circumstances. Generally, the primary considerations were such that they were to be given greater weight. However, particular circumstances may pertain that may justify greater weight being given to one or more of the other considerations than one or more of the primary considerations. It may be noted that the reference in Suleiman to an inquiry as to whether the case is outside the circumstances that generally apply should not be read as requiring an inquiry as to whether there was something about the nature of the case of the person wanting to maintain their status as a visa holder that was unusual or uncommon or out of the ordinary. Rather, the question was whether there was some reason why the general circumstance where the primary considerations should be given greater weight than the other considerations should not apply when it came to weighing the various considerations that were relevant to the particular case.
[39] …the reasons in Suleiman are not dealing with the weight to be given as between primary considerations. They are dealing only with the relative weight as between other considerations and primary considerations.
[40] …the final sentence in [23] of Suleiman… is dealing with two possibilities. First, one or more of the other considerations being treated as a primary consideration. Second, one of the other considerations being afforded the greatest weight of all the considerations (including primary considerations).
[90] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
Non-Refoulment obligations
Although in his Personal Circumstances Form the Applicant responded to the question: “Do you have concerns of fear about what would happen to you if you were to return to your country of citizenship?” by ticking the YES box and replying “Uncertainty, homelessness, survival hardship” this claim does not engage any of Australia’s international non-refoulement obligations and the Applicant’s own representations agree that this is not an applicable criterion for consideration.[91]
[91] Applicant’s SFIC at [35].
This criterion counts neutrally in respect of the Applicant.
Extent of impediments if removed
Subparagraph 9.2(1) of MD90 requires the Tribunal to consider, if relevant:
the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen's age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
The comparator here is not the difference between services or supports available in Australia as compared with those in North Macedonia, but rather the extent to which the Applicant, if returned there, would be on equal footing with other comparable citizens of that place.
Obviously, the Applicant would suffer some impediments were he to be returned to North Macedonia and separated from his extensive family in Australia. The only family who the Applicant has remaining in North Macedonia is his mother who he says is paralysed and lives on a small pension. The Applicant indicated that while his mother might be able to provide him with “a roof” she would not be able to provide any other support or assistance. He has no other remaining relatives there with whom he has been in contact since arrival in Australia. His sister who lived there at the time he completed his Personal Circumstances Form is now resident in Croatia.
The Applicant grew up in FYRM/North Macedonia and is familiar with the languages, mores and customs of that country. He was educated there and also completed his military service and obtained trade qualifications. He has reasonable prospects of re-employment if returned.
The Applicant states that he has a diagnosed mental health condition of “depression, anxiety, OCD[92]” and that he is on prescribed medication of fluvoxamine which is an approved selective serotonin reuptake inhibitor used in relation to such diagnoses. It appears that this diagnosis and regime of treatment only commenced once the Applicant entered custody.[93]
[92] G-documents at 91. OCD = obsessive-compulsive disorder.
[93] Respondent’s Tender Bundle at 52.
On the other hand, a report by the International Health and Medical Services (which provides health services to people in immigration detention) dated 11 June 2022 records:
“Mental Health History-
H/o anxiety ;and depression in the past for which he used medications in the past.
Reports has not been on any medications in the last few years. Reports his mental state has been good.
Denies any suicidal thoughts or self harm thoughts”.[94]
[94] Ibid at 136.
There is no evidence to suggest that the Applicant would not be able to access appropriate medical/mental health care in North Macedonia. The country has a health-care system which provides free basic care for all citizens[95] and there are numerous significant hospitals through the country including one in the Applicant’s hometown of Bitola (Clinical Hospital Dr Trifun Panovski). In May 2022 the World Health Organisation (WHO) led a special workshop on mental health in North Macedonia aimed at strengthening the country’s mental health system as a response to the COVID-19 pandemic.[96]
[95] Sasho Kjosev and Pece Nedanovski, ‘Health care system in the Republic of Macedonia – current situation and development perspectives’ (2008) 1 Revista Tinerilor Economisti (The Young Economists Journal) < World Health Organisation Europe, WHO reignites action on mental health in North Macedonia: <>
The criterion weighs in favour of the Applicant on the basis of the impact of separation from his family but on overall assessment the weight accorded is only moderate.
Impact on victims
Subparagraph 9.3(1) of the Ministerial Direction directs the decision-maker to have regard to the impact:
on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims.
In this application it is clear that the Applicant’s wife has been the principal victim of his offending behaviour. However, it may also be argued that the Applicant’s children have been victims in that they have been impacted by the Applicant’s behaviour. In relation to the initial application of an AVO, this was triggered by one of the Applicant’s children calling the Police because of the confrontation between their parents (reporting her father as physically abusive[97]) and in the incident of May 2018 it was the intervention of a young child which led to the cessation of the Applicant’s aggressive behaviour.[98]
[97] G-documents at 57.
[98] Ibid at 65.
Turing first to the position of the Applicant’s wife. As outlined above, she gave both written and oral testimony the gravamen of which was to urge upon the Tribunal that the Applicant should be allowed to remain in Australia, primarily for the benefit of their children, but also for her own wellbeing.
An analogous matter arose in the case of PGDX where the Tribunal had before it evidence of an applicant who had committed a serious sexual assault against his wife who then came forward to the Tribunal to advocate against his removal from Australia and told the Tribunal of her need for the applicant to remain to provide financial support for herself and her child.
Initially the Tribunal upheld the Minister’s decision to revoke the Applicant’s visa but on appeal, the Federal Court (in setting aside the decision) said[99]:
[82]  However, there is nothing in the Tribunal’s reasoning to suggest it understood that Ms K PGDK’s status as a victim had required it to give specific consideration to the impact on her of a decision to revoke PGDK’s visa cancellation ‘where that information is available’.
[83]  That information was available. It was not open to be ignored.
[84]  Contrary to the submissions the Minister advances, I am satisfied that information was effectively ignored by the Tribunal. In particular I am satisfied that the Tribunal was mistaken in its conclusion that all of what Ms K PGDX had stated in her testimony related to “what she perceive[d] to be in the best interests of her minor son Child S.”
[85]  As a mother it would have been surprising if the gravest of the concerns of Ms K PGDX had not related to her child’s wellbeing. But her evidence was not confined to that. She advanced, albeit modestly, her own claims.
[86]  She informed the Tribunal that the impact of permitting PGDX to remain in Australia would be of benefit to her. It would make her life a little bit easier.
[87]  Such humble evidence had to be taken into account pursuant to cl 14.4 of Direction No 79 and its import weighed in the balance of the matters required to be addressed by the Tribunal pursuant to Direction No 79.
[88]  To revert to Rangiah J’s reasoning in Viane cited above at [27] the effect of Ms K PGDX’s evidence was that as PGDX’s ex-wife she had suffered as his victim and now faced being adversely impacted again if the Tribunal made a non-revocation decision.
[89]  Ms K PGDX’s status as a victim entitled her to limited agency such that that information had to be taken into account by the Tribunal as a mandatory relevant consideration. It was not. She was denied that agency.
[99] PGDX v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235.

The Court's decision in PGDX was recently considered by this Tribunal in JSMJ. In that case, Member Bellamy explained that the ratio of PGDX ought to be seen only as requiring that the adverse impact on victims of any cancellation or non-revocation decision must be considered at some point in the Tribunal's reasoning. However, where a cancellation or non-revocation decision might adversely impact a victim, who is also a member of the Applicant's family who is either an Australian citizen or a person with a right to reside in Australia indefinitely, the best interests of that victim are better considered by reference to the Applicant's ties to Australia. There is, as Member Bellamy pointed out, no reason why a victim's interests "should be taken into account twice merely because [they come] within the purview of two Other Considerations".[100]
[100] JSMJ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4183 at [225].
The Tribunal agrees with Member Bellamy that there should be no “double dipping” in relation to consideration of this matter under two separate criteria, but in this instance believes that it is more appropriate to consider this matter as it relates to the Applicant’s wife’s status as a victim. The Tribunal notes the Respondent’s submission that this should more properly form part of the Tribunal’s assessment of ties to Australia rather than impact on victims, but is unpersuaded of this point.
Regarding the interests of or impacts upon the children concerned, the Tribunal places primary reliance upon considering such matters under the primary criterion of the best interests of minor children.
However, there is also one adult child (IR) and her interests will be considered under the Links to the Australian community criterion.
Given the strength of the representations and evidence provided by Julia Ristevski and mindful of the Court’s directions laid down in PGDX, the Tribunal accords this criterion significant weight in favour of the Applicant.
Links to the Australian community
The Ministerial Direction (at 9.4.1) makes it clear that the Tribunal must consider not only the position of the Applicant but also “the impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, permanent residents or people who have right to remain in Australia indefinitely.” The Tribunal must also consider factors such as how long the Applicant has lived in Australia; when an applicant commenced offending related to their date of arrival and what positive contribution they may have made to the Australian community.
The Applicant arrived in Australia in 2003 and has not left this country since that date. He has an extensive record of productive employment in the community most recently working for many years at the John Hunter Hospital. He has undertaken some TAFE course(s) to improve his English.
He has extensive family ties to Australia extending beyond his wife and three children to father-mother and brother-in law, two uncles, an aunt and a cousin.[101]
[101] G-documents at 88.
His offending period commenced many years after his arrival (2018) and lasted only a short time. He otherwise has a “clean record”. The Applicant is a homeowner and has otherwise been a contributor to the Australian economy.
Paragraph 9.4.2 of the Direction requires specific consideration of the impact of any potential removal on Australian business interests. The qualifications attached to this consideration[102] mean that it is not a relevant factor for further consideration.
[102] The impact must be on major projects or undertakings of national significance.
As previously indicated, one of the ties relevant for consideration is the position of the Applicant’s adult daughter (IR). She gave oral evidence (see above) and has made a formal submission to the Tribunal in which she writes:
“I am currently at Macquarie University (Sydney) studying the Bachelor of Medical Sciences, my dream is to become a doctor specialising in Neurology. I am honoured to say I am an Australian and have the ability to speak the truth from right and wrong.
I hope that my voice is heard and that your decision will allow me to have my Dad in my life in Australia. My Dad has been a big part of my life, that my love for my Dad is a big part of me. The thought of not having my Dad does not sit well with me at all, I’m finding it difficult to get through my days without having my Dad, I feel that I am being punished with the situation that as happened.
I miss the days where I could sit and talk to my Dad about anything and everything, I miss our dinner time as a family, our Sunday Church together, and the ability to wake up and say good morning Dad while having a coffee.
I know my Mum and Dad truly loved each other that they have kept their vows ‘for better, for worse, in sickness and health’. They have recognised hardship and what is important to them (having a family).”[103]
[103] Applicant’s Tender Bundle at 32.
Overall, the Applicant’s ties to Australia are strong and long-standing. He is entitled to credit for this.
The Tribunal finds that this criterion counts substantially in favour of the Applicant.
Further “other” considerations
Sub-paragraph 9(1) of MD90 lists the matters to be taken into account as “other considerations” and those have been elucidated above. However, the clause is clearly not intended to be exhaustive. MD90 relevantly states (emphasis added):
In making a decision under section…501(2)… other considerations must also be taken into account, where relevant… These considerations include (but are not limited to)…
The High Court has addressed this matter in holding that:
The breadth of the power conferred by s 501CA of the Act renders it impossible, nor is it desirable, to formulate absolute rules about how the Minister might or might not be satisfied about a reason for revocation.[104]
[104] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 96 ALJR 13 at [15].
Further, in Plaintiff M1 the High Court majority stated clearly that the Act:
[c]onfers a wide discretionary power on the decision-maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked.[105]
[105] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [22].
The decision-maker must proceed from the starting point of the representations (however made) of the applicant and must consider those but equally, “It is, however, improbable that Parliament intended for that broad discretionary power to be confined”[106] to only those representations.
[106] Ibid at [23]
In dissent, Edelman J dealt with the same matter, stating:
The reasons that can constitute “another reason” are unlimited, other than that they must be reasons other than whether the person has passed the character test.[107]
[107] Ibid at [70].
In this instance the Tribunal notes the exhortation in Hands[108] to the effect that decision-makers should give a broader consideration to the impact of their determinations on the entire suite of people who might be affected by them.
[108] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].
The Tribunal retains a degree of concern about the extent to which the Applicant genuinely has developed the degree of self-control needed to manage what is evidently his short-temper and his propensity to get into verbal arguments with his wife where he has stated in the past that “his partner agitates him to the point of ‘losing control’”.[109] He still exhibits a degree of “cultural misunderstanding”[110] in terms of family dynamics, and the role of “men (as) head of the family”.[111] He has shown on at least one occasion a willingness to knowingly break the law.
[109] Applicant’s Tender Bundle at 12.
[110] Respondent’s Tender Bundle at 52.
[111] Applicant’s Tender Bundle at 12.
On the other hand the Tribunal accepts that the Applicant is now conscious of the significant consequences which could flow from any further breach of the law and that this would act as a powerful disincentive to any further offending.
Alongside this, the evidence is overwhelming that the disadvantage which would be visited upon the Applicant’s wife and these three children would be truly significant and wholly disproportionate to any unspecified advantage gained by the community from his removal.
The calculus
In relation to the matters set out in MD90 the Tribunal has found that:
·protection of the Australian community weighs against the Applicant to a limited degree;
·family violence factors weigh significantly against the Applicant;
·the best interests of minor children weigh significantly in favour of the Applicant;
·the expectations of the Australian community weigh against the Applicant to a limited degree;
·the issue of non-refoulment weighs neutrally in relation to the Applicant;
·the impact on victims of the Applicant’s offending behaviour weighs significantly in favour of the Applicant;
·the extent of impediments if removed counts moderately in favour of the Applicant; and
·the Applicant’s links to the Australian community count significantly in favour of the Applicant.
Even taking into account that primary considerations should, according to MD90 (at 7(2)) “generally” be given greater weight than others, nevertheless the balance of assessment favours the Applicant primarily taking into account the best interests of the minor children and other members of his family weighed against an assessed low risk of reoffending.
DECISION
The decision under review is set aside and in substitution the cancellation of the Applicant’s visa is revoked.

I certify that the preceding 177 (one hundred and seventy -seven) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

....................................[sgd]....................................
Associate
Dated: 31 August 2022

Date(s) of hearing: 18 August 2022

Solicitors for the Applicant: Ms M Mamarot, South West Migration & Legal Services

Solicitors for the Respondent: Mr M Burnham, Sparke Helmore

Date(s) of hearing:	18 August 2022
Solicitors for the Applicant:	Ms M Mamarot, South West Migration & Legal Services
Solicitors for the Respondent:	Mr M Burnham, Sparke Helmore