Rogers and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Rogers and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3095 (21 September 2022)
Division:GENERAL DIVISION
File Number(s): 2022/5440
Re:Marc Dean Rogers
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

Decision
Tribunal:Senior Member K Millar
Date:21 September 2022
Place:Adelaide

The decision under review is set aside and substituted with a decision to revoke the cancellation of the visa under s 501CA(4) of the Act.
...................[sgnd].........................
Senior Member K Millar
Catchwords
MIGRATION – mandatory cancellation of Class BB Subclass 155 – Five Year Resident Return visa under section 501(3A) – where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – decision under review is set aside and substituted with a decision to revoke the cancellation of the visa under s 501CA(4) of the Act.
Legislation
Migration Act 1958 (Cth)
Cases
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Afu v Minister for Home Affairs [2018] FCA 1311
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
FYBR v Minister for Home Affairs [2019] FCA 500
Secondary Materials
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member K Millar
21 September 2022
INTRODUCTION

Mr Rogers is a citizen of the United Kingdom who originally came to Australia on a working holiday visa in 2003. While he was in Australia, he met his now ex-partner, and migrated to Australia in 2007 on a spouse visa. At the time his visa was cancelled, he held a Resident Return (Subclass 155) visa.
Mr Rogers’ visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) because he was convicted of offences and sentenced to a term of imprisonment for more than 12 months.
In his time in Australia, he has one conviction for assault in 2018 before a series of offences between 2020 and 2021 that resulted in his visa being cancelled.
Mr Rogers was convicted of a series of offences against his ex-partner in the period 28 March 2020 to 4 August 2020. In February 2020, an apprehended violence order was made to protect his ex-partner. In the period March-September 2020, Mr Rogers was found to have breached an apprehended violence order on four occasions, common assault on three occasions, one occasion of damage or destroy property, one occasion of stalking or intimidating with the intent to cause fear of harm, and one of attempting to stalk or intimidate with the intent to cause fear of harm.
On 25 January 2021, in an aggregate sentence for these offences, Mr Rogers was sentenced to an Intensive Corrections Order (“ICO”) for 12 months. He breached the ICO on 27 July 2021 and it was revoked from 27 July 2021 resulting in his imprisonment.
As a result, his visa was cancelled.
Mr Rogers made representations seeking revocation of the cancellation of his visa, which was refused by a delegate of the Minister on 29 June 2022. Mr Rogers has applied to the Tribunal for a review of this decision.
On 8 September 2021, after his visa was cancelled, he was convicted of assault causing actual bodily harm (domestic violence) and contravening an apprehended violence order. He was sentenced to a term of imprisonment of 12 months with a non-parole period of 9 months. These offences were also against his ex-partner and arise from events that occurred on 11 and 12 July 2021, prior to the cancellation of his visa.
OFFENDING HISTORY
Mr Rogers’ first conviction was for assault in 2018. He said that this resulted from a bouncer not allowing him back into a hotel after he went out for a cigarette as the bouncer said he was drunk. He said the doorman pushed him and he retaliated. He pleaded guilty to the assault and was sentenced to a bond for 18 months.
Mr Rogers said that in February 2020, his ex-partner contacted the police and accused him of hitting her. The matter went to court, however the charges were dismissed. A provisional apprehended violence order was made on 2 February 2020.
The series of offences that led to the ICO are described by Magistrate Reiss in the sentencing remarks of 21 January 2021.[1] In summary these were:
[1] G5.
·     On 28 March 2020, Mr Rogers returned to the family home and started drinking, contrary to the AVO which required him not to drink within 12 hours of approaching his ex-partner, and also contrary to his bail conditions not to go or try to go near his ex-partner or the to the family home. He accused his ex-partner of cheating on him, calling her a “whore”, “slut” and at one stage of the argument he said, “Get away from me. I want to stab you in the eyes.” Throughout the day, he continued to drink alcohol. The threat was intimidation and drinking alcohol and the threat were a breach of the AVO.
·     At some stage in the afternoon, he made a slitting throat action at the victim. He grabbed a tea towel and using it in a whipping motion to hit the victim in the eye, causing her pain but no injuries. He punched her in the leg with a closed fist, which caused her pain. Mr Rogers continued to drink.
·     While victim was playing monopoly with their son, Mr Rogers approached her from behind and flicked her in the ear causing pain. The Magistrate notes the children were present when part of the assault was committed.
·     Mr Rogers was arrested by police and taken to hospital because of threats of self-harm and discharged the following day. He spoke to police and tried to downplay or deny his conduct. He appeared before court and was refused bail for approximately a month before being granted bail on 29 April 2020. His bail included conditions about approaching his ex-partner.
·     The next set of offences occurred on 16 and 17 May 2020 when he was subject to conditions not to go near or contact the victim other than in limited circumstances. On 16 May 2020, the Magistrate notes there was a degree of co-operation from the victim.
·     The victim states Mr Rogers consumed alcohol throughout the day, said that she was paranoid, that she would call the police, and that she was sleeping with someone. An argument took place in front of the children. The victim messaged a friend because she was starting to feel unsafe. Throughout the evening Mr Rogers pinched, slapped, punched and elbowed the victim many times on her body.
·     At about 11pm, the victim took the children upstairs and when she returned, there was a further argument and Mr Rogers proceeded to punch her in the face and stomach. The victim received a call from her friend to say the police had been contacted. Mr Rogers was reportedly “not impressed” the police had been called. When the police arrived, Mr Rogers had left.
·     The next day on 17 May 2020, Mr Rogers called the victim numerous times threatening self-harm through overdosing on medication. At 12pm, he approached the residence and entered by an open or unlocked front door notwithstanding his bail and AVO conditions. There was an argument with the victim and he said, “You still have those cameras”, referring to CCTV cameras on the property. He went to the backyard, removed a CCTV camera and threw it to the ground causing damage. He picked up a camera, put it in his pocket and returned inside where the children were present. He said to the children “I will see you in another life”.
·     He then got into a heated argument with the victim and refused to give the cameras back. The victim tried to retrieve the cameras and asked the children to take the cameras out his pocket which they did. Mr Rogers went into the kitchen and the victim followed him asking him on numerous occasions to leave. A further argument ensued in which he said to the victim “I’d like to slit you up into pieces”. He hit the victim with a closed fist with one knuckle pointed out. He left the premises and the victim contacted police.
·     At about 6.20pm, the police obtained information on his location and returned to the property where they saw Mr Rogers walk in the back door. He was found by police under one of the children’s beds in an upstairs bedroom. He was taken to hospital again and was admitted for 8 days.
·     He appeared before the Court and was granted bail on 31 July 2020 subject to strict conditions not to approach the victim. He contacted her the next day to say he was after his mobile phone and wallet. He tried to contact her through WhatsApp on 4 August 2020. He was arrested again on 10 August 2020. He was refused bail for a period of 2-3 weeks.
·     Mr Rogers pleaded guilty to the offences and other more serious charges were withdrawn.
In his sentencing remarks, Magistrate Reiss notes that although Mr Rogers spent about a month in custody in March 2020, this was not enough to stop him from drinking and engaging in violent behaviour. Magistrate Reiss further noted that even the last time he was released, he breached his bail within days.
Magistrate Reiss notes that at the time of the offending, Mr Rogers had not worked for approximately 2 years and had suffered some childhood trauma. He had a history of using cannabis, cocaine and alcohol, drinking up to 16 beers and a bottle of wine a day when he was not working. The Magistrate states he had a few presentations to St John of God hospital for rehabilitation in 2019 which were unsuccessful given that his drinking continued in 2020. Mr Rogers said he had been diagnosed with depression and had received medication.
Mr Rogers was convicted and sentenced for:
·     Four breaches of an AVO
·     Three occasions of assault (domestic violence)
·     One occasion of destroy or damage property (domestic violence)
·     One attempt stalk/intimidate intend feat of harm (domestic)
·     One stalk/intimidate indented to cause fear of physical harm (domestic)
Mr Rogers was sentenced to an aggregate term of imprisonment of 12 months to be served by way of an ICO.
The ICO was revoked by the State Parole Authority with effect from 27 July 2021 for breach of conditions not to commit any offences, report to a community corrections officer at times and places directed by the officer and comply with all reasonable directions form a community corrections office about participating in programs, treatment, intervention or other related activities.[2]
[2] G8, 84.
CONVICTIONS AFTER THE CANCELLATION
After the ICO was imposed, Mr Rogers was sentenced to a term of imprisonment of 12 months after pleading guilty to offences of aggravated assault causing actual bodily harm (domestic violence) and contravention of an AVO committed 27 July 2021. This sentence was imposed on 13 July 2022. At the time the delegate was considering whether to revoke the cancellation of the visa these matters were outstanding.
While these offences did not result in the cancellation of Mr Rogers’s visa, the objectives of the Direction include that a decision-maker must consider the specific circumstances of the case in deciding whether there is another reason to revoke the cancellation (cl.5.1(3)). This includes Mr Rogers’s conduct to the date of this decision, and includes the convictions and sentence imposed on 13 July 2022.
In the statement provided in support of revocation dated 3 November 2021, Mr Rogers said that based on legal advice, he does not wish to comment on these matters and is entitled to a presumption of innocence. He states a decision-maker would not be satisfied that the allegations against him are made out and there is insufficient probative evidence to support the allegations advanced.[3] As he ultimately pleaded guilty to these offences, having had the advantage of legal advice and as he acknowledged at the hearing he did punch and strike the victim with his elbow, this does not bolster his credibility.
[3] G12, 129.
Sentencing remarks were not available for these offences. The Tribunal has the police facts, which are disputed by Mr Rogers. The Court Outcome records that Mr Rogers pleaded guilty to these offences.[4]
[4] Applicant Bundle 1 item 12.
The police facts[5] record that:
·     On 11 July 2021 at about 2pm the victim attended Mr Rogers’s house to drop off items for their children who were staying there. The victim noticed Mr Rogers appeared noticeably intoxicated and was swaying while he was standing. He asked the victim to stay the night which she agreed to do.
·     Mr Rogers fell asleep by about 5pm and while he slept the victim bathed and fed the children and put them to bed.
·     Mr Rogers woke up about 8.30pm and continued drinking with the victim in the garage of the house. They had a conversation about getting back together. The victim told Mr Rogers she had been texting a friend of his while they had been separated. This upset him and he began to yell at the victim calling her names such as “slut” “cunt” “whore”. The argument did not last long, and they went back inside. They went to bed at about 11pm.
·     At about 2am the following morning, the victim woke to Mr Rogers leaning over her from her left. He started verbally abusing the victim before suddenly striking her to the face, head, chest and arms with closed fist punches from both hands and elbow strikes about 20 times. The victim tried to shield her face with both arms. Mr Rogers grabbed the victim’s left arm and tried to tear jewellery and a wristwatch off it, causing her pain.
·     Mr Rogers stopped and left the room. At about 2.30am, the victim took photographs of her injuries and over the following few days took photographs of bruising that had become more apparent and visible. Bruises were shown to her upper right arm, chest, left wrist and upper left side ribs. Mr Rogers returned to bed with the victim about half an hour later. It is recorded the victim felt light-headed and does not recall what happened next and woke up the next morning.
·     On 26 July 2021, Mr Rogers attended Burwood Police Station with his solicitor. During an interview, he denied all allegations of assault and stated that he restrained the victim to protect himself by grabbing her biceps. He denied punching or elbowing the victim. On being shown photographs of the victim’s injuries, he refused to answer the allegations.
[5] G20 296 – 299.
Mr Rogers said that he was out in the garage talking to Ms Cronin on the telephone and an argument started with the victim. He said the victim told him she was seeing his best friend. The argument has escalated, and he lashed out which led to the actual bodily harm charge. He said he and his ex-partner had been “having a fling” for the previous two weekends and that the victim had stayed with him.
Ms Cronin also said that Mr Rogers was in the garage talking to her.
Mr Rogers pleaded guilty to both charges. He did not deny he “lashed out” and he pleaded guilty. As he pleaded guilty and was convicted, the underlying elements of the offence are accepted, in that he punched and elbowed the victim causing bruising to her upper right arm, chest, left wrist and upper left side ribs. He also pleaded guilty to the breach of the AVO. The Tribunal accepts these facts as the essential facts of the offending.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act states the Minister must cancel a visa that has been granted to a person if he is satisfied the person does not pass the character test because he or she has a substantial criminal record and 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.
A person does not pass the character test if he or she has a “substantial criminal record”.[6] According to s 501(7)(c) of the Act, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
[6] Section 501(6)(a) of the Act.
The decision to cancel the visa can be revoked if the Minister, or the Tribunal in the place of the Minister, is satisfied either that the person passes the character test, or there is another reason why the original decision should be revoked.[7]
[7] Section 501CA(4) of the Act.
In looking at whether there is another reason to revoke the cancellation of the visa, the Tribunal is bound by written directions given by the Minister.[8]
[8] Under s 499 of the Act, the Minister may give written directions that are consistent with the Act or regulations about the exercise of powers under the Act. These directions bind this Tribunal (s 499(2A) of the Act).
The Minister has given written directions about the exercise of the power to revoke the cancellation of the visa in Direction No. 90, Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”).
The matters to be decided in this case are whether Mr Rogers does not pass the character test, and if so, whether there is another reason the decision to cancel the visa should be revoked.
DOES MR ROGERS PASS THE CHARACTER TEST?
Mr Rogers was sentenced to a term of imprisonment of 12 months on 25 January 2021 and has a substantial criminal record.
Does CANCELLATION UNDER S 501(3a) OF THE aCT arise on the facts?
Mr Rogers was sentenced on 25 January 2021 to a term of imprisonment of 12 months to be served by way of ICO. Mr Rogers breached the ICO on 27 July 2021. The ICO was revoked, and he was imprisoned.
Mr Rogers’s visa was cancelled under s 501(3A) of the Act. This requires the Minister to cancel a visa if the person does not pass the character test, including where the person has a substantial criminal record and 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.
While Mr Rogers’s representative had stated in opening that it was conceded that these requirements were met in closing she submitted that he was not serving a sentence of full-time imprisonment in a custodial institution on the date his visa was cancelled because his ICO had been reinstated on 11 October 2021. He was notified his visa had been cancelled on 12 October 2021.
Mr Rogers’s representative relied on the date of a Court Order Notice of 11 October 2021, which is after the date the ICO was revoked, and stated that as this notice records the order for an ICO this means the ICO was reinstated on this date.
The Minister provided further information on the revocation of the ICO as requested by the Tribunal. In an email from the State Parole Board dated 13 October 2021 to NSW Prisons, it states the decision of the Parole Board on that day is:
“State Parole Board declines to rescind. Revocation order of 7 September 2021 is to stand for reasons stated (Only Standard Conditions 3 and 4b).
State Parole Authority reinstates the Intensive Corrections Order. Offender is to be released as soon as possible but no later than 4pm on Thursday, 14 October 2021. Reinstatement to become effective on release. Offender to report to Gosford Community Corrections within 7 days of being released from Immigration Detention.”
Mr Rogers was notified of the cancellation of his visa on 12 October 2021. This is before his ICO was reinstated. At the time he was servicing a full-time sentence of imprisonment in a custodial institution when his visa was cancelled.
It follows that applicant’s visa was correctly cancelled under s 501(3A) of the Act.
IS THERE ANOTHER REASON THE CANCELLATION SHOULD BE REVOKED?
In considering whether the cancellation of Mr Rogers’s visa should be revoked, the Tribunal is required to apply the Direction.
The Direction specifies that a decision-maker, informed by the principles in paragraph 5.2, must take into account the considerations in Part C of the Direction in determining whether the mandatory cancellation of a non-citizen’s visa should be revoked.[9]
[9] Paragraph 6 of the Direction.
Principles that inform the decision-maker

Paragraph 5.2 of the Direction sets out a number of principles that inform the decision-maker, they are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens 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 non- citizens 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 measurable risk of causing physical harm to the Australian community.
Taking the relevant considerations into account
Paragraph 6 of the Direction states that informed by the principles in paragraph 5.23 the decision maker must take into account sections 8 and 9 where these are relevant. Section 8 sets out four primary considerations and section 9 sets out four other considerations.
Paragraph 7 instructs that:
(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.
The Primary and Other Considerations
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(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; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests

THE PRIMARY CONSIDERATIONS

THE PROTECTION OF THE AUSTRALIAN COMMUNITY

In considering the protection of the Australian community, cl.8.1 of the Direction requires decision-makers to 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. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In examining the protection of the Australian community, cl.8.1(2) of the Direction requires decision-makers to consider:
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.
The nature and seriousness of the conduct
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, and the Tribunal considered each of these factors.
Violent or sexual crimes, crimes involving violence against women or children and acts of family violence
Sub-clause (a) of cl.8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The term “family violence” is defined in cl.4(1) of the Direction and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Examples provided include assault, intentionally damaging or destroying property. The Tribunal considers that in this context “family member” includes Mr Rogers’ ex-partner from whom he had recently separated. The nature of the offences for which he was convicted appear on his Australian Criminal Intelligence Commission check with “DV” (domestic violence) or (domestic) in the title. The Tribunal finds the offences for which Mr Rogers was convicted on 25 January 2021 and 13 July 2022 are acts of family violence.
Mr Rogers has been convicted of crimes of family violence, and these crimes are viewed very seriously. He was previously convicted of an assault, which is also viewed very seriously as a crime of a violent nature.
The sentence imposed
In considering the sentence imposed, it is only the 2018 assault conviction that is relevant to this provision, as acts of violence and family violence are considered serious regardless of the sentence.
On being convicted for assault on 3 July 2018, Mr Rogers was sentenced to a bond for 18 months.[10] While this is a lengthy bond, it is not a custodial sentence, and the Tribunal places less weight on the sentence imposed.
Frequency of offending
[10] G9, 89.
The frequency of offending and whether there is any trend of increasing seriousness is to be considered on accordance with cl. 8.1.1(1)(d) of the Direction.
Mr Rogers had a long period of not offending after his first arrival in 2003. He was convicted of an assault in 2018, and then committed a series of offences against his ex-partner in the period from March 2020 to July 2021, a period of approximately 15 months.
The offending in that 15 months period is frequent, however in the context of his overall time in Australia his offending has not been frequent.
The cumulative effect of repeat offending
The cumulative effect of an Applicant’s repeated offending is a consideration under paragraph 8.1.1(1)(e) of the Direction.
Mr Rogers repeatedly offended in the period March 2020-August 2021. The offences themselves are also repeated, with five convictions for breaches of an AVO, four convictions for assault and one of assault causing actual bodily harm. He has been convicted of two stalking/intimidation offences, one for stalk/intimidate with intent to cause fear of physical harm and one of attempted stalk/intimidate with intent to cause physical harm.
Providing false or misleading information to the Department
There is no information before the Tribunal to indicate Mr Rogers has provided false or misleading information to the Department.
Reoffending since being warned
Whether the non-citizen has reoffended since being formally warned, or otherwise since being made aware in writing about the consequences of further offending in terms of the non-citizen’s migration status is to be considered under cl. 8.1.1(1)(g) of the Direction.
Mr Rogers has not been formally warned about the consequences of his offending in terms of his migration status.
The risk to the Australian community
In considering the need to protect 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 (cl.8.1.2(1) of the Direction). Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that may be repeated may be unacceptable.
Factors in assessing the risk that may be posed by the non-citizen to the Australian community, are set out in cl.8.1.2(2) and must be considered cumulatively. They are:
(1)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(2)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; and
(3)….
Nature of harm should Mr Rogers engage in further criminal or other serious conduct
This assessment is informed by a consideration that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases (cl.8.1.2 (1)).
In this case, Mr Rogers has assaulted and injured his ex-partner, with some offences occurring in front of his children. He has damaged her property and has repeatedly breached orders in place to protect her. He has also assaulted a bouncer.
The nature of the harm if he reoffends include harm to mental health, personal injury and economic loss. The nature of the offence, with Mr Rogers’s ex-partner being hit in the head increases the risk of brain injury.
Magistrate Reiss found that the conduct occurred in front of the children. Magistrate Reiss notes that the children were asked to remove a camera from Mr Rogers’s pocket when he removed it during one series of offences. The children were present in the home for most, if not all, the offences. There is harm to the children in witnessing family violence.[11] Family violence has an adverse effect on the victim’s mental health.[12] If this were to recur it would cause harm to the children.
Likelihood of engaging in further criminal or other serious conduct
[11] See, for example Australia’s National Research Organisation for Women’s Safety, Research summary: The impacts of domestic and family violence on children (2nd ed., ANROWS, 2018).
[12] VicHealth, The Health Costs of Violence: Measuring the Burden of Disease Caused by Intimate Partner Violence: A Summary of Findings (2004).
In looking at the likelihood of Mr Rogers engaging in further criminal or other serious conduct, the Tribunal must consider the information and evidence on the risk of re-offending and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence.
Evidence of the risk of reoffending
The Tribunal received a report from a clinical psychologist, Mr Sam Borenstein,[13] who also gave oral evidence.
[13] Applicant Bundle 2, item 1.
Mr Borenstein’s opinion was:
“……
Mr Rogers has undertaken extensive rehabilitation and he has had time to reflect on his mental state leading up to and during the offending period. Mr Rogers expressed guilt, remorse and contrition and acceptance of responsibility for his actions and an appreciation of his wrongdoing. Mr Rogers was struggling with symptoms of severe depression, anxiety and Alcohol Use Disorder for which he sought treatment at St John of God Hospital throughout 2019 and 2020, with three admissions.
Mr Rogers described a deterioration in his mental state in the last two to three years of his marriage, which he said was commented to by his ex-wife, … and her family.
Mr Rogers described a very close bond to his two boys, [A] aged 8 and [B] aged 5.
Mr Rogers says that following separation from his wife, Sarah, they had agreed on a parenting plan. The subject offences occurred when Sarah learned Mr Rogers had entered a relationship with his current partner, Aisling Cronin. Mr Rogers confirmed he acted uncharacteristically in ways that bring him before the Court, for which he has repeatedly expressed remorse and contrition and forwarded a letter of apology to his ex-wife ...
Mr Rogers says the offences occurred at a particularly stressful time, coinciding with COVID-19 lockdown and economic pressures and struggling with the consequences of marital breakdown and reduced contact with his two sons with him he has a very close bond. Documents enclosed for my attention attest to Mr Rogers’ character and confirm his motivation and involvement in rehabilitation which includes intensive psychological therapy/treatment, participation of relevant courses, and abstinence from alcohol through participation in the SMART Recovery program. Mr Rogers has demonstrated obvious efforts to address factors which contributed to the offending behaviour and he remains motivated to maintain positive changes and be present and involved in his sons’ lives. Mr Rogers described a loving and committed relationship to his sons, who would suffer greatly in the event Mr Rogers would be deported to the UK.
Mr Rogers understands the Australian community expects the Australian Government can, and should, refuse entry to non-citizens or cancel their visas when serious character concerns are raised which includes acts of family violence.
In my opinion, Mr Rogers has addressed necessary issues in the context of ongoing rehabilitation and psychological treatment and participation in relevant courses, confirming his motivation to ensure he does not relapse into severe symptoms of depression and anxiety and Alcohol Use Disorder of the sort he was grappling with for some time, which led to the uncharacteristic and offending behaviour for which he was arrested and charged and sentenced.
Mr Rogers’ description of his mental state, leading up to and during the offending period indicates he was in fact suffering a mental health impairment leading to a temporary and ongoing disturbance of thought, mood volition, perception and memory significant for clinical diagnostic purposes which impaired his emotional well-being, judgement and behavioural choice, compounded by his attempt to self-medicate with alcohol.
Psychological treatment together with Mr Rogers’ level of motivation, guilt, remorse and contrition will, in my opinion, significantly reduce the likelihood of Mr Rogers reoffending in similar fashions.
Mr Rogers’ character references indicate the offending behaviour is uncharacteristic and goes against Mr Rogers’ normal values, beliefs and attitudes. The offending behaviour was uncharacteristic and an expression of Mr Rogers’ mental health impairment leading up to and during that offending period.
Of great concern is the impact on Mr Rogers’ children in the event he is deported to the UK. Mr Rogers described a very close bond/attachment to his young boys, and forced separation from their father will, in all likelihood, impact negatively on their emotional and psychological development.
Attachment theories focus on psychological, evolutionary and ethological aspects concerning relationships between humans. The most important tenant is that young children need to develop a relationship with a primary caregiver for normal social and emotional development. Research shows attachment styles affects performance in many areas of life, including physical and mental health, finding a compatible romantic partner and our behaviour and family and social and work context.
Forced separation from Mr Rogers’ children would, in all likelihood, impact negatively on all aspects of their emotional and psychological and relational development, the result of severed, significant attachment Mr Rogers described with his two young sons.
Mr Rogers is now party to a stable relationship with Aisling Cronin and he has contributed to the Australian community via his business in waterproofing.
By way of summary, Mr Rogers was, in my opinion, suffering a mental health impairment leading up to and during the time he committed the subject offence leading to him being arrested, charged and sentenced.
Mr Rogers has expressed guilt, remorse and contrition for his actions, confirmed in the letter of apology enclosed for my attention.
Mr Rogers’ personal and clinical history, together with character refences and Mr Rogers’ commitment to psychological treatment, together with motivation, guilt and remorse, will, in my opinion, mean the risk of him reoffending in similar fashion is extremely low.
Mr Rogers’ position in his family’s life, including his current partner, two sons and his partner’s daughter, is crucial to his children’s ongoing development as detailed above. The effect of deportation would, in my opinion, impact negatively on his children’s lives and that of Mr Rogers and his family.”
Mr Borenstein’s report records that he was provided a number of documents by Mr Rogers to assist in the preparation of his report. This included the notice of the decision not to revoke the cancellation of his visa, the decision of the Burwood Local Court and the national criminal history and a range of documents provided by Mr Rogers in support of a decision to revoke the cancellation of his visa.
Mr Borenstein said he assessed Mr Rogers by audio-visual link for 70 minutes. Mr Borenstein’s report includes a history provided by Mr Rogers. The history provided by Mr Rogers was incorrect in some respects. Mr Borenstein records Mr Rogers states his relationship with his ex-partner was amicable up until she learned Mr Rogers had entered into a relationship with his current partner. This ignores that the offences for which he was sentenced to the ICO occurred in the period March-August 2020, which is before he met Ms Cronin in March 2021. In the opinion section of his report, Mr Borenstein repeated that the subject offences occurred when Mr Rogers’s previous partner learned of his relationship with Ms Cronin. The offences being considered occurred before he met Ms Cronin.
In the assessment, Mr Borenstein administered an abbreviated Personality Assessment Screener (PAS) and a Depression Anxiety Stress Scale (DASS 21), and said that administering these tests took 10-15 minutes.
Mr Borenstein said the PAS involves 22 statements which are read out and the person responds whether the statement is an accurate statement about them, with the scale being false, slightly true, mainly true or vey true. He said the person gives the opinion of themselves. It measures 10 elements: negative affect, acting out, health problems, psychotic or social withdrawal, suicide ideations, alienation, alcohol related problems and anger management. It measures where the person falls within a low, normal, moderate or high range.

The expanded version of the PAS takes 1.5-2 hours to complete and cannot be conducted over an audio-visual link. It has control questions to test the validity of responses, unlike the abridged PAS test.
Mr Borenstein reports that the PAS results of Mr Rogers indicate moderate potential for emotional/behavioural problems of clinical significance. He states:
“……
Elevated result on acting out element confirms Mr Rogers history of acting impulsively when subjected to stress, as was the case leading up to and during the offending period.
A slightly elevated result on psychotic features element involves symptoms of vigilance and wariness in the absence of frank psychotic phenomenon.
The PAS profile confirms a past history of Alcohol Use Disorders, currently in sustained remission.
Low results on hostile control element indicates Mr Rogers’ interpersonal style is not
characterised by the need for control or inflated self-image.
The PAS profile indicates no worse than mild difficulties in the area of anger management.
The results on the Depression Anxiety Stress Scale (DASS 21), were normal for symptoms of depression, normal for symptoms of anxiety and normal for symptoms of stress. The DASS 21 measures for symptoms in the week prior to interview/assessment. Mr Rogers said that had he completed the DASS 21 in the weeks leading up to that period in which the offences occurred results would likely have been in the severe to extremely severe range, evidenced by the fact that Mr Rogers was struggling with symptoms of depression and anxiety and Alcohol Use Disorder, and he had three admissions to St John of God Hospital in 2019 and 2020.”
On being asked the questions to measure hostile/control and Mr Rogers’ responses, Mr Borenstein advised they are:
“I’m a take charge type of person” to which Mr Rogers answered “mainly true”
“People think I’m aggressive” to which he answered “false”
The questions for anger management are:
“I have a bad temper” to which he answered “false”; and
“It takes a lot to make me angry” to which he answered, “Mainly true”.
Mr Borenstein said the idea of the PAS was to confirm or test the information provided in the interview and that the PAS assessment was consistent with his clinical observations.
The Tribunal does not consider the questions asked in the PAS test provided a sophisticated basis on which to base a conclusion, even with clinical observations during the interview, about the hostile/control or the anger aspects of his personality. The assessment was conducted in one session of 70 minutes. A detailed history appears in the report. The administration of the tests and the taking of the history would easily account for 70 minutes.
Clinical observations included in the report were that Mr Rogers responded promptly to questions without any obvious attempt at misrepresentation or impression management, that he became emotional and tearful as he recounted the offences for which he pleaded guilty and was again emotional and tearful when he referred to his sons.
Other observations are taken from what Mr Rogers told Mr Borenstein, namely that he feels guilt, remorse and contrition for his actions. In Mr Borenstein’s view, Mr Rogers had an appreciation of his wrongdoing.
Based on the history provided by Mr Rogers, Mr Bornstein forms a view that he was suffering a mental health impairment leading up to and during the time he committed the subject offence. This assessment is not supported by any other contemporaneous assessment or the discharge summaries from the hospital. However, it is supported by police records recording that Mr Rogers was hospitalised after being arrested, and on one occasion was hospitalised for a period of 8 days. The Tribunal accepts he was suffering some form of mental impairment leading up to the offences.
In his report, Mr Borenstein states Mr Rogers is a low risk of re-offending, and in oral evidence stated he was an extremely low risk of reoffending.
Given this assessment is based on a history provided by Mr Rogers that contained an inaccurate statement, and the limited nature of the testing conducted, the Tribunal places less weight on his assessment that Mr Rogers is a low or extremely low risk of reoffending.
Alcohol use
A theme in Mr Rogers’ offending is his use of alcohol. Mr Rogers has reported he attended rehabilitation at St John of God hospital on two occasions in 2019 and 2020.
Mr Borenstein records Mr Rogers’s account that he was initially admitted to St John of God hospital in August 2010. It is reported he was again admitted between 14 October 2019 and 1 November 2019 where he completed an inpatient rehabilitation program followed by a nine-week outpatient program. It is reported Mr Rogers was readmitted on 24 December 2019 and discharged on 26 December 2019. Mr Borenstein reports Mr Rogers had counselling with a psychologist between January and September 2019.
Mr Rogers said he went to his GP who referred him to a psychologist, and it went from there. He said he attended rehabilitation for three weeks on one occasion and 9 weeks on another occasion. He said he went back to rehabilitation because it did not work, but he has found things now which do work through the course he has done, the Smart Recovery program and the Dad 4 Kids program.
The rehabilitation at St John of God and the counselling was not successful and a feature of his offending in 2020 and 2021 is alcohol use.
Mr Borenstein stated Mr Rogers has alcohol use disorder which is in remission. He said the rehabilitation at St John of God, while it was not successful, would be reinforced by the short course Mr Rogers has undertaken recently and which are detailed below. In relation to his alcohol use, he said he learned from the courses the effect on others of his alcohol use when he was previously only worried about the on him.
The Tribunal has had regard to Mr Rogers’s statutory declaration and oral evidence that he will reduce the risk of reoffending by undertaking ongoing support for his alcohol use. He provided information to show he has identified an Alcoholics Anonymous group he can attend and a counsellor he has previously seen in the community. This is not rehabilitation achieved by the time of this decision but does display some commitment to refraining from alcohol use in the future. Mr Rogers attributed his problems to alcohol use. He states he intends to continue to see a counsellor, attend Smart Recovery groups and attend AA.
He has not used alcohol for at least 12 months while he has been in custody. The records from International Health and Medical Services (“IHMS”) show he has been using cannabis while in detention and it is suggested this increases paranoia. On 14 June 2022, a clinical counsellor, entered progress notes which state:
“……
We also looked at the fact that Marc indicated to smoking some Cannibals in Villawood, which is probably having a depressant effect on his mind. I did provide Marc with some education around hydroponic Cannabis use and paranoia and depression.;
…”
IHMS also report that Mr Rogers has shown some drug seeking behaviour and that he became aggressive when medication was refused. Relevantly, progress notes from nursing staff, dated 13 May 2022 state:
“……
Explained that he can have Panadeine forte which is charted PRN twice a day and Panadol osteo in the middle of the day
Got agitated, abusive swearing and using F*** words when I was explaining the tablets he currently takes and the gap between doses
Stated recording me without permission, I left the consultation room and ended the discussion.”
On 13 June 2022, a medical practitioner had a consultation with Mr Rogers and her notes state:
“……
Pt c/o panadeine forte being ceased
He states that he is in 10/10 pain
He reports that he is unable to lift his food tray to get his food
He finds it difficult to shower/get dressed, unless he has his panadeine forte
I’ve explained that the cortisone injection was given to reduce swelling/pain
He states that it hasn’t worked and he still is in pain
He is requesting panadeine forte until he has surgery
He states if cant have it that he will have to go to hospital for his 10/10 pain
He became agitated when discussing panadeine forte, ? drug seeking behaviour, I said I will DW TL.”
In further submissions, it is stated Mr Rogers experienced pain after injuring his shoulder.
Mr Rogers has abstained from alcohol while in custody, has undertaken further rehabilitation since being in immigration detention and has a plan for future support. Mr Rogers has relapsed in the past having been through inpatient services and outpatient rehabilitation for a longer period of time. His relapse occurred in the context of Court Orders that relate to his drinking. He has used cannabis in immigration detention and a medical practitioner queried whether he had drug seeking behaviour. While these are different substances to alcohol, a cautious view of the potential for relapse is warranted when combined with his ability to abstain being untested in the community, the need for ongoing rehabilitation and his previous relapse despite rehabilitation.
Mental health
Mr Rogers said his alcohol use started after the birth of his second child. His ex-partner had a stomach problem and needed to take medication to keep her alive. He said it was unknown if she would survive. He was at home trying to look after their older child and run his business and was very stressed. He said he thinks he suffered post-natal depression.
Mr Rogers was admitted to hospital on two occasions after he was arrested, on one occasion overnight and on the other for a period of 8 days. The Tribunal does not have the benefit of any records from these admissions.
Mr Borenstein is of the opinion that in the period prior to the offending, there was a deterioration in Mr Rogers’s mental state, and he was suffering severe symptoms of depression and anxiety, as well as alcohol use disorder. Mr Borenstein considers this impairment led to a “temporary and ongoing disturbance of thought, mood volition, perception and memory, significant for clinical diagnostic purposes which impaired his emotional well-being, judgement, and behaviour choice, compound by his attempt to self-medicine with alcohol”.
In sentencing in January 2021, it was submitted Mr Rogers had ceased medication for his mental health while in custody as he was feeling clear headed and gained an insight into the seriousness of his actions because of the time he spent in custody. Mr Rogers subsequently re-offended within 6 months despite being subject to the ICO in committing the more serious offence of assault causing actual bodily harm (domestic violence).
Mr Rogers states he thinks the medication when combined with alcohol makes him worse. He is currently not on any medication.[14]
[14] IMHS records, report 2 December 2021.
Given he previously reoffended when ceasing medication and despite a period of abstinence in prison, there remains a possibility that his mental health with deteriorate when in the community and subject to stress.
Evidence of Rehabilitation
Mr Borenstein’s report includes an account of three admissions to St John of God Hospital for alcohol rehabilitation in August 2020, 14 October - 1 November 2019 and 24-26 December 2019. Discharge summaries from this program were not available to the Tribunal, and Mr Borenstein said he did not receive discharge summaries but was familiar with this program. Mr Borenstein said this is a period of inpatient rehabilitant followed by a nine-week outpatient course, and that Mr Rogers told him about his participation.
All the offences relating to family violence occurred between March 2020 and August 2021, after he had been to rehabilitation. A feature of these offences is Mr Rogers’ use of alcohol. Mr Rogers states the St John of God program was good for detoxification but not for rehabilitation, and he has done rehabilitation in the last 14 months.
He states he is doing a Smart Recovery program in immigration detention, which is a self-run group that discussed challenges and past problems which he intends to continue to participate in remotely when he leaves immigration detention.
Mr Rogers has undertaken on-line courses in:
·     Single Parenting 101 (3 contact hours) completed 10 July 2022
·     Problem solving strategies (3 contact hours) completed 22 October 2021
·     Emotional healing 1010 (6 contact hour) completed 23 October 2021
·     Drug and Alcohol Abuse (7 contact hours) completed 22 November 2021
·     Decision Making Skills (8 contact hours) completed 1 November 2021
·     Anger Management 101 (5 contact hours) completed 29 November 2021
·     Domestic Violence 101 (8 contact hours) completed 31 July 2022
Mr Rogers said he is also participating in a “Dad 4 kids” program in immigration detention.
Mr Rogers has also been seeing a counsellor while in immigration detention. His counsellor provides letters dated 27 June 2022 and 1 August 2022, stating Mr Rogers has been engaging with him once a week. The counsellor reports Mr Rogers has been transparent and honest in working on symptoms of anxiety and looking at coping strategies for stress management. The counsellor refers to allegations that Mr Rogers was assaulted at Villawood and his concerns about reprisals or further assaults. The counsellor states Mr Rogers has been proactive by completing an online course in building and has been doing some counselling in regard to his past family problems. It is reported he “has been extremely transparent and insightful in regard to issues concerning his ex-partner”. It is reported Mr Rogers seems committed to be able to return to the community and recommence working to help support his children.
Protective factors
Mr Rogers is highly motivated not to reoffend as he is aware of the consequences for his visa status in Australia, and that the cancellation of his visa will mean the loss of regular personal contact with his children and the likely end of his relationship with Ms Cronin.
Mr Rogers identifies his relationship with Ms Cronin as a protective factor and plans to live with her and her daughter if he is released form immigration detention. The Tribunal does not doubt that Mr Rogers values his relationship with Mrs Cronin highly, and that they have become closer since he has been in immigration detention. Ms Cronin describes speaking to Mr Rogers several times a day. Despite Mr Rogers being in a relationship with Ms Cronin and having moved into her house at the time, he also re-established a connection with his ex-partner when the most recent offences occurred, and the degree to which this is a protective factor on his release is unknown.
Mr Rogers has taken steps to commence a new business and is in the process of obtaining a building qualification. He provided letters of support from Mr Jon Dupre, a professional reference from Mr Darren Hall, and evidence of his previous business operating, including financial statements from the 2016 financial year. The record of his work is patchy, with Mr Rogers stating he did work on the house that was built because it was “quiet” in the business during that time. Magistrate Reiss states at the time of sentencing on 25 January 2021, Mr Rogers had not worked in the two years before sentencing and that he was trying to re-establish his business. Mr Rogers said he owes $33,0000 to the tax office and the previous business owes him money.
The professional references provided, and the evidence of Mr Panton, is that Mr Rogers has had a successful employment history, and the opportunity to establish a new business and working may reduce the likelihood of reoffending. The Tribunal places slightly less weight on this being a protective factor as it did not prevent him re-offending after being sentenced in January 2021.
Mr Rogers has actively participated in counselling and the rehabilitation courses available to him. However, rehabilitation and counselling has been unsuccessful in the past, and his ability to abstain from alcohol is untested in the community. The Tribunal concluded the likelihood of him reoffending is low to moderate.
CONCLUSION – THE PROTECTION OF THE AUSTRALIAN COMMUINITY
Having considered the factors in cl.8.1 of the Direction, the Tribunal finds this consideration weighs moderately in favour of not revoking the cancellation of his visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Clause 8.2 of the Direction 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.
Clause 8.2(3) specifies the factors to be considered in considering the seriousness of the family violence, and the Tribunal turned to each of these factors.
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
Mr Rogers’s conviction commenced with breaches of AVO’s and progressed through assault to assault occasioning actual bodily harm and are increasing in seriousness.
b)the cumulative effect of repeated acts of family violence;
Mr Rogers has been convicted of five breaches of an AVO, three for assault, one assault causing actual bodily harm, as well as stalking offences and a property offence. These are repeated acts of family violence and have a cumulative effect.
He has breached AVO’s, bail orders and his ICO in committing these offences and there is a cumulative effect to these breaches in the face of the increasingly serious consequences of breaching these orders.
This was a course of conduct that went for 15 months, which is a considerable period of time, and did not cease despite Court orders to protect his ex-partner.
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
Mr Rogers provided the Tribunal a letter of apology dated 26 July 2022 to his ex-partner. This letter states:
“Dear Sarah,
I would like to apologise to you for all the hurt and pain I have caused you due to my behaviour and disrespect towards you. I am deeply sorry and I’m now aware of the devastation it has caused to our family.
We probably both knew that the marriage was over a few years ago and I do remember you asked me to leave but I stayed and mainly for the sake of the boys, looking back now realistically I should have left but I didn’t, and the marriage got worse.
Once again, I apologise to you for all the verbal and physical violence that continued during that period in my life. I was struggling with, and I take full responsibility for my actions, and I believe I have learnt a massive lesson with the punishment I received and that it was rightly deserved.
I hope you are well and are coping with the boys on your own as you know I would love to have the boys back in my life and I believe they need me too, so I hope for the boys’ sake you would accept my apology, and for both of us to move on with our lives with the best interests of the boys as our priority.
I have made huge steps on bettering myself by engaging in multiple courses and attending group sessions to help in my rehabilitation and hopefully I will be able to put this to practice when I get to see the boys.
Obviously, the ball is in your court, but I want you to know that I’m deeply sorry and I’m a changed man and just want the best for the boys and their future.”[15]
[15] Applicant Bundle 1, Item 3.

Mr Rogers’s account of whether this has been provided to ex-partner was somewhat vague, as Mr Rogers is not permitted to contact his ex-partner or the children.
Mr Rogers states there were issues in his ex-partner’s pregnancy with their second child and she had stomach issues and need to take medication to keep her alive. He was at home looking after their eldest child and trying to run his busines and he was very stressed. He claims to have suffered anxiety and post-natal depression.
Mr Rogers states he has remorse and did lash out at the time causing injuries. He said there was verbal abuse from both sides, and he should have walked away earlier. He said he punched his ex-partner in the leg out of pure anger and frustration. He said he was trying to be the best husband and dad but there was too much stress and he took too much on. He expressed remorse in his interview with Mr Borenstein.
In looking at the degree to which Mr Rogers accepts responsibility for his behaviour, it was telling that when describing the deterioration in his relationship with his ex-partner, he said there was only violence after “the house was stolen”. He then corrected this to “the house was sold”. He states his ex-partner kept the money stating she was protecting it from him and started getting lawyers involved. His views on his ex-partner acting improperly in the sale of the house was also reflected in the evidence of his friend Mr Panton who said there were problems after the “house was sold behind his back” and was “sold for $400,000 less than what it was worth”. He explains him “lashing out” more recently as attributable to his ex-partner telling him she had seen his best friend. This attributes his conduct to the actions of his ex-partner.
Mr Rogers states that his children would call begging him to ring them, but when he rang, he would be breaching the AVO. He said that when he was released on remand there was a missed call from his ex-partner with a message form one of his children saying, “Daddy please call me”. He states he called as he panicked when he saw the missed messages. He provided messages from his ex-partner asking him to contact the children and stating she will allow contact. He also provided a screenshot showing missed video calls from his ex-partner.
The AVO dated 23 February 2020 state Mr Rogers must not “assault or threaten, stalk or intimidate or damage the property of his ex-partner and must not approach or be with her for at least 12 hours after drinking alcohol.” The AVO dated 4 April 2020 prevents contact and explains that if his ex-partner contacts him and he replies, no matter how many times she contacts him, he will be in breach of the order.[16]
[16] G18, 239.
On being asked his understanding of family violence, he said this was verbal abuse, belittling people which leads to upset and torment if you get involved in the incidents. It causes hurt, pain and suffering, financial problems. He said it has affected him, and he is angry with himself because he thought he was doing the right thing by staying. Mr Rogers can repeat the items he has learned and has also written a letter identifying the actions and the harm they cause, however in discussion returns to the effect on himself and the actions of his ex-partner such as selling the house or her relationship with another person as a justification for his behaviour.
Mr Rogers view of his ex-partner’s contribution to his offending behaviour is not consistent with a full recognition of his responsibility for the behaviour that led to the convictions. These behaviours breaches of orders of the Court and also involved punching, pinching, slapping and elbowing his ex-partner.
The Tribunal finds he accepts responsibility for his family violence related conduct to a moderate extent.
Mr Rogers was asked his understanding of the effect of family violence. He said it causes upset and torment causing hurt, pain and ongoing suffering, it had a financial effect and an effect on the children. He said it had an effect him and he is angry with himself as he thought he was doing the right thing by staying. The Tribunal finds he has some understanding of the effect of family violence on his ex-partner.
On being asked about the effect on his children, Mr Rogers said he hoped they were young enough not to remember. He stated he did not know what the children saw, and that the family violence was not in front of them. He said he tried to be away from the children.
This is contrary to the sentencing remarks of Magistrate Reiss that at least some of the offending behaviour was in front of the children. His offending occurred when the children were in the house.
The Tribunal finds Mr Rogers has little awareness of the effect of his offending on his children.
In turning to his efforts to address factors which led to his conduct, Mr Rogers relies on the courses he has undertaken, his resolution not to consume alcohol and his resolution not to have any further contact with his ex-partner.
Mr Rogers has completed courses on domestic violence, anger management, drug and alcohol abuse, emotional healing, and problems solving strategies. These are short courses ranging from 3-8 contact hours conducted online.
Mr Rogers has also been involved in the SMART recovery program in looking at addressing his problems with alcohol. He states he considers this will be a life-long commitment to ceasing alcohol use.
He said he has learned from these courses options to remove himself from a situation and that he has learned that to manage his anger he needs to not speak, to keep his mouth shut and walk away. He needs 30-40 minutes to cool down. He said he has learned stress is a big thing that leads to anger.
His efforts to engage in rehabilitation, learn about domestic violence and gain and understanding of ways to manage his anger are to be commended. He has not yet had an opportunity to put this into practice in a community context or when facing difficult issue such as access to the children and a property settlement. His progress is positive but untested.
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.
Mr Rogers repeatedly reoffended following the imposition of AVO’s, bail conditions and the conditions on the ICO. His actions in disregarding these orders led to his imprisonment for breach of the ICO prior to it being reinstated and a further sentence of 12 months’ imprisonment being imposed.
CONCLUSION: FAMILY VIOLENCE
The family violence committed by Mr Rogers weighs moderately in favour of not revoking the cancellation of his visa.
Primary Consideration 3: The best interests of minor children in Australia
In making a decision about whether the cancellation of Mr Rogers’s visa should be revoked, under cl.8.3(1), the Tribunal must make a determination about whether this is in the best interests of a child affected by the decision.
This consideration applies only if the child is, or would be, under 18 years at the time the decision is made (cl.8.3(2)).
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. In this case, there are three children Mr Rogers identified as being affected by a decision not to revoke the cancellation of his visa. These are his eldest son A, who is now 8 years of age, his youngest son B who is 5 years of age and Ms Cronin’s daughter C, who is also 8 years of age.
Child A and Child B
Mr Rogers was asked about his children, and said he has a special connection with the Child A as “he is the first.” He states they play football together because he was a professional footballer as was his father and brother. He coached Child A’s football team and says Child A loved that because he was proud of his father.
He said Child A is missing him and he cannot imagine the effect this separation would have on his children. He doubts their mother can afford their schooling. He said the separation of his parents had a big effect on him and that is why he remained in a bad marriage for so long.
Mr Rogers said that other than the two years prior to his offending, he was very active with his children and was always out with them and playing sport. Child A would copy him when he was working on the house. He did not identify any particular needs of his younger child. He spoke of the detriment to the children in the context of his own experience of the separation of his parents.
Mr Rogers claims he had an amicable parenting agreement with his ex-partner that was interrupted by the charges in July 2021 and his detention from October 2021. He provided a handwritten document stating he was to have the children alternate weekends Friday -Sunday starting from 9 July 2021, that Child A would be taken to academy Monday nights by March and that he is allowed to have access during the week.
This agreement is dated a matter of days prior to the events resulting in convictions for assault occasioning actual bodily harm and contravention of the AVO on 11 and 12 July 2021. His ICO was revoked from 27 July 2021. Mr Rogers said this agreement was produced at his insistence. The Tribunal does not consider this shows an amicable parenting arrangement with his ex-partner or ongoing contact with his children.
He also provided a letter from his family lawyers dated 2 August 2022. This was addressed to his representative in this matter. This letter states Mr Rogers instructed his lawyers to write to his ex-partner on 26 July 2022 to seek a parenting proposal. It states a letter was sent, and that they are waiting for a response. The letter sets out the advice of the lawyer on the next steps if agreement is not reached. It sets out matters on which they have been instructed, including the courses undertaken by Mr Rogers, the parenting plan dated 9 July 2021. They were further instructed that he had always taken an active part in his children’s life by attending school events, social events, family events and outings including coaching soccer. Advice is provided that the cancellation of his visa will have a detrimental effect on his case because the Court must consider when arrangements are reasonably practicable.
The Tribunal finds this supports that he is seeking to re-establish contact with his children shortly after the most recent assault on his ex-partner, but otherwise reports what the lawyer has been instructed by Mr Rogers, and does not add any weight to his oral evidence.
Mr Rogers provided a statutory declaration statement from Mr Anthony Reilly who states he has known Mr Rogers since 2008, has spent enjoyable days with Mr Rogers and his family and that his boys adore him. It states that Child A told Mr Reilly his father coached his soccer team. The coaching is reported to have ended during the breakdown of the marriage due to Mr Rogers’s mental health. The Tribunal accepts that Mr Rogers was an involved father who attended events with his children and coached Child A’s soccer team.
Mr Borenstein gave evidence that the “close attachment theory” states that audio-visual contact is better than no contact but is not as effective as in person contact with a parent. In his report, Mr Borenstein states that the impact on Mr Rogers’ children is of great concern in the event that he is deported as he describes a close bond/attachment to his children and forced separation will, in all likelihood, impact negatively on their emotional and psychological development. Mr Borenstein states that attachment theories state that young people need to develop a relationship with a primary caregiver for normal social and emotional development. In turn, this affects performance in physical and mental health, finding a compatible romantic partner, and behaviour in family, social and work context. He states forced separation would, in all likelihood, impact negatively on all aspects of his children’s emotional and psychological development as a result of a severed significant attachment to Mr Rogers.
Mr Borenstein acknowledged he has not met Mr Rogers’ children and based this assessment on Mr Rogers’ account of his relationship with his children. Nevertheless, given the evidence that Child A and Child B want contact with their father, the Tribunal accepts the assessment that long term involuntary separation from their father will have a significant detrimental effect on Mr Rogers’ children.
Mr Rogers provided various photographs of him with Child A and Child B and of the children at other activities, including playing soccer and on a show ride and of him with the football team.
Mr Rogers said since he has been in detention, the children have tried contacting him, but he cannot talk to them because of the AVO.
He provided the Tribunal a copy of series of messages that were provided through the Messenger Kids app. These messages include the children asking to speak with him and Mr Rogers refusing because he will get into trouble with the police. He also provided an invoice to his ex-partner from the school Child A attends dated 2 August 2021. This invoice contained outstanding instalments and upcoming instalments, which total $3,023. There are emails from his ex-partner attaching a photograph of Child B’s kindy orientation and photographs from Child A’s 8th birthday party.
He has also included messages which he states are from his ex-partner to Ms Cronin stating, “let Marc know today or never with he kids … no reporting or recording,” “I’ve allowed him to contact [Child A] through his iPad” that Child A is contacting him through his iPad, and finally that “I will remove Marc tomorrow so if he wants to see the kids I will allow it today only. They obviously aren’t…”.
There are other messages by text from his ex-partner stating, “They want to talk to you” “No reporting pinky dreary”, “For the kids?”, “Ok. How do I explain to them”, “they are nothing” “last time” “Ok you’ll not see the kids again”, “I tried”, “They wanted to talk to you.”
In a sequence provided shortly before the hearing, he provided a sequence of messages from his ex-partner “You’ve broken there (sic) heart”, “Can ring [Child A] on his iPad if you want today only” and “Thinking about letting you talk to the boys … I will put in writing to your lawyer”.
There is little the Tribunal can draw from extracts of text messages, which only provide part of the history and can be taken out of context, however these messages do support that the children are seeking contact with Mr Rogers.
Child C
His relationship with Child C is non-parental. Ms Cronin said Child C’s father both have an active role in her life, live close to them and they each have 50% care of Child C.
Mr Rogers lived with Ms Cronin and her daughter for approximately 3 months before he was taken into custody. Child C is in her father’s care 50% of the time, so this means she has spent limited time living with Mr Rogers.
Mr Rogers and Ms Cronin both said Child C has a good relationship with Child A and Child B, although most of their contact has been by Facetime.
Clause 8.3(4) of the Direction specifies that 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);
The relationship between Mr Rogers, Child A and Child B is parental, and he played a parental role until his separation from his ex-partner. He has not been in contact with them since July 2021, as this is prohibited by orders of the Court.
While Mr Rogers claimed he had taken on a parental role while he was living with Child C’s mother, this was for a very short period prior to his incarceration. Child C spends half of the time in the care of her father. Child C has parents fulfilling a parental role, and Mr Rogers’ relationship with Child C is non-parental.
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;
The extent to which Mr Rogers is likely to play a positive parental role for the children will depend on his ability to abstain from alcohol and cease his behaviour towards their mother. These prospects have not been tested in the community as he has been in detention.
The children are young and there is considerable time until they turn 18 years of age; 10 and 13 years respectively. There are currently no orders relating to parental access and Mr Rogers is currently prohibited from contact with his children due to the terms of the AVO, but has commenced action to have access to his children.
He does not have a parental role with the Child C.
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;
There is no direct evidence of the impact of the applicant’s prior conduct on Child A and Child B. He has been separated from his children for more than a year. As the children were present either in the room or in the household during his offending, his behaviour can reasonably be inferred to have a negative impact on Child A and Child B. There is insufficient information to show his conduct has had an impact on Child C.
There remains a possibility that he will relapse into alcohol use or abusive behaviour and this would have a negative impact on all the children. The Tribunal has found the likelihood of this occurring is low to moderate.
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;
The Tribunal accepts that separation from his children at their relatively young age will have a highly adverse effect on Child A and Child B. There is information to show they are seeking contact with him.
While they can maintain some connection by audio visual communication, the Tribunal accepts that this will not be a meaningful substitute for in person contact given the ages of his children of 5 and 8 and the evidence of Mr Borenstein.
Separation will have a far lesser impact on Child C given the short period Mr Rogers has been in her life and the ongoing involvement of both of her parents in her day-to-day care.
e)whether there are other persons who already fulfil a parental role in relation to the child;
Child A and Child B’s mother plays a parental role for the children. There is no information about whether any other person, including his ex-partner’s parents, are playing a parental role.
Child C has both her parents playing a parental role.
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
Mr Rogers provided copies of cards and letters from the children and request conveyed by Messenger kids showing Child A wants to be in contact with his father. This attracts significant weight as Child A is 8 years of age and can express his views. There is no direct evidence of the views of Child B, however Child A sends a message saying Child B wants to talk to Mr Rogers as well.
The Tribunal finds the Child A wants to have contact with his father. There is some information to show Child B also wants contact with his father.

Ms Cronin gave evidence that Child C asks where Mr Rogers is, and they tell her he is working away. According to her mother, a picture by Child C shows Mr Rogers in their life. Writing assisted by Ms Cronin states Child C loves Mr Rogers. A card was provided from Child C, which says they miss him and thanks him for doing jokes and animal quizzes with her. Ms Cronin acknowledged that Child C’s views reflect her own as Child C is aware that Mr Rogers makes her mother happy. The Tribunal does not consider the information before it determinative of Child C’s views.
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;
The children were found by the Magistrate to have been exposed to family violence perpetrated by Mr Rogers on their mother. There is no suggestion that they have otherwise been abused or neglected.
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
There is no direct evidence that the children have suffered psychical or emotional trauma, however it is apparent from the sentencing remarks of the Magistrate that the children were present for at least some of the assaults on their mother[17] and were also present when he damaged the cameras as they were asked to remove cameras from his pockets. The Magistrate notes that he told the children “I will see you in another life”, which is described as very disturbing behaviour in front of the children. The sentencing remarks and police facts also record that the mother had to bath and feed them at time as Mr Rogers was intoxicated, including in the period on 11 and 12 June when they were to be in his care.
[17] G5, 7273.
Mr Rogers acknowledged the children have seen him intoxicated.
Given that Child A has witnessed an assault on his mother, the children have been in the house at the time of other assaults, the children have witnessed him damaging property and as he was making threats of suicide in front of the children, it is reasonably to infer some emotional trauma. It is not possible to assess the effect of this on the children in the absence of direct evidence.
CONCLUSION: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
It is in the best interest of Mr Rogers’s minor children A and B that he remains in Australia. The weight to be attributed to this factor is ameliorated by the exposure of the children to family violence perpetrated by Mr Rogers and his alcohol use.
Overall, the Tribunal finds this consideration weighs significantly in favour of revoking the cancellation of his visa.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
In considering the expectations of the Australian community, cl. 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Tribunal should consider whether Mr Rogers has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
In accordance with cl.8.4(2), non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Clause 8.4(2) goes on to state that 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; or
(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.
Paragraph 8.4(3) of the Direction provides that 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.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
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.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[18]
[18] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government to which the decision maker must have regard.
Accordingly, in assessing the weight attributable to the expectations of the Australian community, it is necessary to have regard to the expectation that Mr Rogers’s visa will be cancelled, and in particular that these expectations apply which he has been convicted of acts involving family violence. Accordingly, this weighs in favour of not revoking the cancellation of his visa, as it is intended to do.
The weight of this expectation reflects the series of family violence offences over a 15-month period against his ex-partner. In the context of his time in Australia, this is a relatively short period.
CONCLUSION: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Tribunal concluded the expectations of the Australian community weigh moderately in favour of not revoking the cancellation of his visa.
Other Considerations
The other considerations are set out in cl.9(1) of the Direction, and are international non-refoulement obligations, the extent of impediments if removed, the impact on victims and links to the Australia community.
International non-refoulement obligations
It was not contended, and the Tribunal finds, that international non-refoulment obligations do not apply in the circumstances of this case.
Extent of Impediments if Removed
As a guide for exercising the discretion, cl.9.2 of the Direction directs a decision-maker to take into account 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:
·     the non-citizen’s age and health;
·     whether there are any substantial language or cultural barriers; and
·     any social, medical and/or economic support available to that non-citizen in that country.
Mr Rogers is 42 years of age. He has worked in the construction industry and ran his own business, reporting that he was very successful in the early years of the business. That seems to have reduced in the two years before the breakdown of his marriage, with Magistrate Reiss citing a report that states he had not worked for two years at the time of sentencing on 21 January 2021.
He states he suffered a shoulder injury in the gym in immigration detention. He provided a report from an orthopaedic surgeon dated 18 July 2022, which records that he had been relatively sedentary for a few years leading up to 2022 having progressed from working in physical role to the supervision of employees. This report details the concerns about his right shoulder and states “I have cautioned him in the long-term that he should avoid an upper body gym strengthening program or returning to the more physical side of his work due to the extent of his glenohumeral osteoarthritis.”
Mr Rogers has a waterproofing technician license which he said “means nothing” in the United Kingdom, and he is unable to start at the bottom in the building profession and work his way back into the profession due to his shoulder injury. He said he does not have qualifications as a building manager or supervisor.
His evidence that he would be unable to obtain employment in waterproofing was somewhat at odds with other oral evidence that he was to complete a course in Singapore in this area to lead to international accreditation. He states he is halfway through a course to obtain a building qualification.
Mr Rogers says as waterproofing is an unknown profession in the United Kingdom, and he is unable to work in construction other than performing physical labour which he is no longer fit to do because of his shoulder. Given his experience in running a company and managing others he has transferrable skills in construction management. The Tribunal does not accept he would be unable to find work in the United Kingdom other than in labouring jobs. It does accept he will face hardship in finding accommodation and work and in re-establishing himself in the United Kingdom.
Mr Rogers states his mental health will deteriorate if he is deported and that he will suffer lifelong emotional trauma and hardship. He states “I would be heartbroken and shattered at being separated from my two boys and [Ms Cronin]. I would be constantly worried about whether my children were being properly cared for by their mother”.[19] He claims there is a real prospect he will fall into a deep depression. Given his history of depression and alcohol use, the Tribunal accepts that if his visa remains cancelled and he is required to leave Australia Mr Rogers will suffer emotional hardship and his mental health may deteriorate.
[19] Applicant Bundle 1, Item 1
Mr Rogers lived in the United Kingdom until 2003, and his father and brother live in the United Kingdom. He says he is not close to his brother who works as a rigger on super yachts and lives at a location where it would be difficult for Mr Rogers to obtain work. His father provided a statement that he would be unable to assist him with accommodation.
There are no substantial cultural or language barriers. Mr Rogers will be able to access services available to citizen of the United Kingdom.
The consideration weighs in favour of revoking the cancellation of Mr Rogers’ visa to a moderate degree.
Impact on victims
The Direction requires decision-makers to consider the impact of the decision to cancel the visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no direct information about the effect of a decision to cancel the visa on Mr Rogers’s ex-partner. Mr Rogers states she will find it difficult to meet school fees without his financial assistance, however in the absence of any information from his ex-partner and the need to give appropriate weight to independent and authoritative sources the Tribunal places little weight on this assertion.
In matters such as these, the Minister may wish to consider asking the victim of any offences and their families if they want to make any submissions on the effect of a decision not to revoke the cancellation of the visa.
In the absence of evidence from the victim of the offences, this factor is neutral.
Links to the Australian Community
This requires that decision makers must have regard to the following factors set in cl 9.4.1 and cl 9.4.2 which are:
(i)the strength, nature, and duration of ties to Australia; and
(ii)the impact on Australian business interests.
Immediate family Members
Clause 9.4.1 states decision-makers must consider the impact of any 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.
The effect on Mr Rogers’s children has been discussed above. Mr Rogers’s remaining immediate family, being his father and brother, are in the United Kingdom.
Strength, nature and duration of other ties to Australia
Under cl 9.4.1(2) of the direction, were consideration is being given to whether to revoke the mandatory cancellation of the visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so decision markers 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.
Mr Roges first arrived in Australia on a working holiday visa in 2003 when he was 23 years old. He remained in Australia most of the time from this date and has now been in Australia for nearly 20 years. His first offence occurred 15 years after his arrival, and the series of offences for which his visa was cancelled occurred 17 years after his arrival. The considerable time he has been in Australia without offending and his contributions through working in Australia result in more weight being attributed to the strength, nature and duration of his ties to Australia.
Mr Rogers says he applied for and was granted citizenship but did not progress to being a citizen as he says his financial situation did not allow him to pay the required fees. This shows some commitment to the Australian community.
Mr Rogers is now in a relationship with Ms Cronin, who provided statements to the Department and the Tribunal, and who gave oral evidence to the Tribunal. Ms Cronin was an impressive witness. She said that she is in a relationship with Mr Rogers, and they were living together before he was in custody. He will live with her and her daughter if he is released from immigration detention.
Mr Rogers and Ms Cronin state they met in approximately March 2021 through mutual friends at a playground with their children. Ms Cronin says she instigated further contact and the relationship developed rapidly. Due to an impending COVID lockdown, they decided he would move in with her as he would otherwise not be able to visit her from Sydney. He remained living with her until he was taken into custody.
Both parties state this if the cancellation of his visa is not revoked, the relationship will end as Ms Cronin is unable to relocate to the United Kingdom due to the custody arrangements for her daughter.
It was clear Mr Rogers places great importance on this relationship and greatly values the support provided by Ms Cronin. Ms Cronin says she is currently seeking counselling herself due to her personal circumstances and the ongoing detention of Mr Rogers. The Tribunal considers this relationship a significant tie to Australia, but attributes slightly less weight as the relationship is relatively recent.
Mr Roger’s friend Mr Andrew Panton provide a statement and gave oral evidence. He has known Mr Rogers for 20 years and met him as his supervisor. He described Mr Rogers as like a little brother. An unsigned and unsworn statement was provided from Mr Anthony Reilly that says they have common interests and a long erm friendship. Letters of support for Mr Rogers in attaining his building qualification license also show he has ties to the business community through his business and his work in construction.
Mr Rogers has coached his son’s soccer team and has ties to the local community in coaching and in his involvement in his children’s life.
Impact on Australian business interests
Decision-makers must consider the impact on Australian business interests if Mr Rogers is not allowed to remain in Australia, noting that an employment link will generally only be given weight when the decision would significantly compromise the delivery of a major project, or delivery of an important service in Australia (cl.9.4.2).
Mr Rogers had a waterproofing business in Australia and is currently seeking to become qualified as a builder. He said the waterproofing business is in high demand at present. His existing business owes $33,000 to the Australian Taxation Office. He is seeking to incorporate a new business and says he has work available. He has registered a new business name to do construction related work.
The Tribunal appreciates that Mr Rogers has work available in an area he says is in demand, however, does not consider this amounts to an impact on Australian business interests, and there is insufficient information available to form a conclusion about the impact on other Australian businesses.
Having considered the links to the Australian community including the strength, nature and duration of ties to Australia and the impact on Australia’s business interests, the Tribunal considers this weighs moderately in favour of revoking the cancellation of Mr Rogers’ visa.
CONCLUSION
Having considered the factors in the Direction, the Tribunal has found that of the primary considerations:
·The protection of the Australia community weighs moderately in favour of not revoking the cancellation of Mr Rogers’s visa;
·The family violence consideration weighs moderately in favour of not revoking the cancellation of Mr Rogers’s visa;
·The best interests of minor children in Australia affected by the decision weigh significantly in favour of revoking cancellation of the visa.
·The expectations of the Australian community weigh in favour of not revoking the cancellation.
Of the other considerations:
·International non-refoulment obligations do not apply,
·The extent of impediments if removed weigh moderately in favour of revoking the cancellations of his visa,
·The impact on victims is neutral, and
·The links to the Australian community weigh moderately in favour of revoking the cancellation.
Three of the primary considerations weigh in favour of not revoking the cancellation of Mr Rogers’ visa, generally to a moderate extent. One of the primary considerations weighs significantly in favour of revoking the cancellation and two of the other considerations weigh moderately in favour of not cancelling his visa. Primary considerations should generally be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.

This matter is very finely balanced. Mr Rogers has committed a series of offences which the Australian community is taken to regard as very serious. However, he has two young children who will deprived of in person contact with their father if the cancellation of his visa is not revoked, and this will have a significant adverse effect on his children.
The Tribunal considers that the primary consideration of the best interests of the children outweigh the other primary considerations in the circumstances of this case and together with the other considerations of extent of impediments if removed and ties to the Australian community establish another reason why the decision to cancel his visa should be revoked.
As a result, the decision is set aside and substituted with a decision to revoke the cancellation of Mr Rogers’ visa under s 501CA(4) of the Act.
Decision
The decision under review is set aside and substituted with a decision to revoke the cancellation of the visa under s 501CA(4) of the Act.

I certify that the preceding two hundred and thirty-five (235) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Millar

................[sgnd]............................
Legal Associate

Dated: 21 September 2022
Date of Hearing: 8 & 9 September 2022

Advocate for the Applicant:
Ms Marial Lewis, Crossover Law Group

Advocate for the Respondent: Mr Charles Bavin, Hunt and Hunt Lawyers

[2022] AATA 3095

21 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Natural Justice

Jurisdiction

Advocate for the Applicant:	Ms Marial Lewis, Crossover Law Group
Advocate for the Respondent:	Mr Charles Bavin, Hunt and Hunt Lawyers