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

Ross and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2103 (19 July 2023)
Division:GENERAL DIVISION
File Number: 2023/2800
Re:James Edwin Ross
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date of Decision: 19 July 2023
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision dated 24 April 2023 made by the delegate of the Respondent
.......................[SGD]............................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – decision under review affirmed.
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Family Law Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Jagroop and Minister for Immigration and Border Protection (2016) 241 FCR461
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Walker v Minister of Home Affairs [2020] FCA 909
Secondary Materials
Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
19 July 2023
INTRODUCTION

Mr James Edwin Ross (‘the Applicant’) is a 44-year-old man, born in New Zealand in February 1979. He first arrived here in June 2003 as a 24-year old. He has departed Australia once (for a seven day period) in July 2011. Apart from that seven day absence he has resided in Australia from June 2003 until the present time. It suffices to say that he has regarded Australia as his country of residence since his initial arrival here in mid-2003.[1] Following his most recent arrival in Australia in July 2011, he was granted a Class TY Subclass 444 Special Category (Temporary) visa (‘Visa’).[2]
[1] Exhibit 1, p 412.
[2] Exhibit 1, p 412.
On 19 August 2022, while the Applicant was serving a full-time custodial term of imprisonment, a delegate for the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) notified the Applicant of the mandatory cancellation of the Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).[3] On 31 August 2022 the Applicant made written representations to the Respondent requesting revocation of the cancellation of his Visa.[4]
[3] Exhibit 1, pp 413-419.
[4] Exhibit 1, p 81.
On 24 April 2023 a delegate of the Respondent made a decision to not revoke the earlier mandatory cancellation of the Visa (‘decision under review’).[5] This decision was notified to the Applicant on 26 April 2023.[6] On 1 May 2023, the Applicant lodged the instant application in this Tribunal seeking review of the non-revocation decision. I am satisfied this Tribunal has jurisdiction to review the non-revocation decision pursuant to s 500(1)(ba) of the Act.
[5] Exhibit 1, pp 14-19.
[6] Exhibit 1, pp 11-13.
The hearing of this application proceeded before me on 29 and 30 June 2023 (‘the Hearing’). Oral evidence was received from:
·the Applicant; and
·Mr Raph U [full last name redacted] (Applicant’s previous employer);
·Ms Judith Turfrey (Applicant’s mother); and
·Ms Darleen Taingahue (Applicant’s sister).
The Applicant’s minor son Child JR (aged 17 years) was part of the list of witness called by the Applicant to give oral evidence at the Hearing. However, during the Hearing neither the Applicant nor the Respondent’s representative adduced oral evidence from this witness. Be that as it may, I nevertheless caused Child JR to confirm the first of his two written statements as being true and correct.[7]. The second of his two statements was not received into evidence because of the ‘two-day’ rule referred to in ss 500(6H) and (6J) of the Act.
[7] Transcript p 72 lines 5-47; p 73 lines 1-26.
The Hearing also received written evidence the totality of which was consolidated into an agreed Exhibit List.[8] A true and correct copy of that Exhibit List is attached to these Reasons and marked ‘Annexure A’.
[8] Transcript p 2 lines 17-34.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act.
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and if not
(b)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.
Does the Applicant pass the character test?
It is beyond argument that the Applicant does not pass the character test. I agree with the position taken by the Respondent[9] with which the Applicant did not appear to cavil. Failure of the character test arises because this Applicant has a ‘substantial criminal record’ due to him being sentenced to a term of imprisonment of 12 months in April 2022.[10] Accordingly, it can be safely found that he does not pass the character test and, as a consequence, cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his Visa to be revoked.
[9] Exhibit 4, p 5, [21].
[10] Pursuant to ss 501(6)(a) and 501(7)(c) of the Act.
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
In considering whether there is another reason to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 99 – visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 99’) has application.[11]
[11] Direction No 99 commenced on 3 March 2023. It replaces Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a

non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:
1Australia 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.
2Non-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.
3The 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.
4Australia 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.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6
Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the

non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 8 of the Direction sets out five 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 strength, nature and duration of ties to Australia:
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to
keep in mind 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.
As best as I understood the material, it does not contain any reference to offences committed by the Applicant outside of Australia. He has compiled a relatively lengthy history of criminal offending in this country. There are approximately 40 entries for convictions in a criminal history running (in terms of sentencing events) from August 2004 until April 2022 – an offending period of some 18 years that saw him before lawful authority on 17 separate sentencing occasions. His offending pattern is dominated by a fundamental failure to respect the lawful authority around two elements: (1) the lawful authority represented by orders made by courts resulting from adverse conduct in a domestic setting; and (2) the lawful authority around orders/undertakings/directions that specifically compelled him to do or refrain from doing something. In fulsome terms, his offending his offending history may be stated thus:
·22 convictions in the realm of domestic violence:
o21 of those were for contraventions of extant orders;
·13 convictions for a failure to meet the requirements of lawful authority:
oseven convictions for failing to appear in breach of a bail undertaking;
otwo convictions for failing to follow the lawful direction of a police officer;
ofour convictions for offences committed in the precincts of a casino;
·two convictions for drug offences:
oone conviction for possession of a dangerous drug;
oone conviction for possession of utensils/paraphernalia;
·there are also two entries for ‘suspended sentence fully invoked’.
The Applicant has also compiled a traffic history during his time in Australia. It runs variedly across a period of 19-20 years from 2003 to 2023.[12] There appear to be 14 offences actually committed. They are dominated by ten offences of unlicenced driving. He has been disqualified from driving on six separate occasions and the cumulative period of disqualification[13] amounts to 16 months. Once again, this is a history of offending which is predominated by a failure to observe and respect the laws and regulations governing the ownership and control of a motor vehicle on Australian carriageways.[14]
[12] Exhibit 3, pp 123-129.
[13] Note to reader: I have only counted disqualifications from driving appearing in the Result column of the traffic history. I have not counted the suspensions of the Applicant’s driving history resulting from non-payment of previously imposed fines. There are at least 15 such suspensions in the traffic history.
[14] Exhibit 3, pp 126-129.
In determining the weight allocable to this Primary Consideration 1, paragraph 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.
I will consider each in turn.
The nature and seriousness of the Applicant’s conduct to date
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 the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)     violent and/or sexual crimes;
(ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Paragraphs 8.1.1 considerations
Sub-paragraph 8.1.1(1)(a): the chapeau to this portion of the Direction stipulates that offences committed in the realm of sub-paragraphs (i), (ii) or (iii) are viewed very seriously by the Australian Government and the Australian community. It suffices to record that the Applicant’s commission (and convictions) for acts of family violence fall squarely within the auspices of sub-paragraph (iii) and, as such, militate in favour of a finding that the totality of his offending has been very serious.
Sub-paragraph 8.1.1(1)(b): the chapeau to this portion of the Direction refers to the types of crimes that may be considered serious by the Australian Government and its community. None of the Applicant’s offending occurred in the realm of the offending described as sub-paragraph (i). With reference to sub-paragraph (iii) the Applicant has not been responsible for conduct grounding any finding that he does not pass an aspect of the character test that may be dependent on this decision-maker’s opinion. [15]
[15] Paragraph 8.1.1(1)(b)(iii) of the Direction.
However, the Applicant has committed offences against government representatives or officials in the performance of their duties. He has respective convictions in 2008 and 2015 for contravene a direction or requirement given to him by a police officer. While that conduct was mildly punished by way of respective fines in the sum of $350 and $150 (with no conviction recorded on both occasions) it is conduct that falls within the auspices of paragraph 8.1.1(1)(b)(ii) and, as such, must be found to militate in favour of a finding that his offending has been serious.
With specific reference to sub-paragraph 8.1.1(1)(b)(iv), the Respondent refers to an incident report dating from January 2023 which talks about the Applicant being involved in an incident with another detainee where they argued and threatened violence against each other.[16] However, this incident does not fall within the auspices of this particular sub-paragraph because it requires there to be ‘…a crime committed while the non-citizen was in immigration detention…’. While an incident may have been reported by the detention centre authorities, no charge was proffered and no conviction resulted. This sub-paragraph is not relevant to any assessment to the seriousness of the Applicant’s conduct.
[16] Exhibit 4, p 10, [34.6].
Sub-paragraph 8.1.1(1)(c): in applying this particular sub-paragraph, I am precluded from taking into account sentences imposed on this Applicant for:
(a)any violent offending he may have committed against women or children;[17]
(b)acts of family violence;[18] and
(c)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage. [19]
[17] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[18] Paragraph 8.1.1(1)(a)(iii) of the Direction.
[19] Paragraph 8.1.1(1)(b)(i) of the Direction.

As mentioned earlier, none of the Applicant’s offending falls within the auspices of the immediately preceding sub-paragraph (c). I am also precluded from taking into account any convictions for acts of family violence or other violent conduct against women victims. That leaves the 15 offences involving:
·the Applicant’s seven convictions for failure to appear in accordance with an undertaking as to bail. For this offending the Applicant received:
ofines on five occasions;
oa custodial term of one month suspended for 18 months;
oa recorded conviction, but was not further punished;
·the Applicant’s two convictions for contravene direction or requirement, for which he received respective fines in the sum of $350 and $150;
·the Applicant’s four convictions for cheating or otherwise entering or remaining in the precincts of a casino contrary to a duly issued order. For this offending the Applicant:
owas fined $480 with no conviction recorded;
owas fined $300 with no conviction recorded;
owas fined $500 with a conviction recorded; and
owas fined $800 with a conviction recorded.
I am not of the view (and cannot find) that the nature of the above sentences imposed for the Applicant’s non-precluded offending represent significant sentences that were imposed for the commission of commensurately serious offending. These are offences of petulance and a blatant refusal to follow the lawful authority represented by (1) the authority charged with responsibility for operation of a casino; (2) police officers going about their duties; and (3) the requirements of an undertaking the Applicant had previously given consequent upon a grant of bail being made to him. These sentences speak to the frequency of the Applicant’s offending. I do not think they necessarily speak to the nature and seriousness of his unlawful conduct in this country.
Sub-paragraph 8.1.1(1)(d): two questions arise for consideration. The first involves an assessment of the frequency of the Applicant’s offending. The commission of some 40 offences across an 18 year offending history is plainly frequent offending. The Applicant found himself before lawful authority on virtually one occasion of each year of the offending history. I am satisfied that the Applicant’s offending has been frequent.
The second question is whether the offending betrays any trend of increasing seriousness. I am satisfied that it does. There is an undeniable increase in the circumstantial seriousness of the Applicant’s domestically violent conduct that resulted in the imposition of custodial terms in, respectively, (1) April 2019 (resulting in the imposition of a three month custodial term suspended for 18 months); (2) September 2021 (resulting in the imposition of a 12 month custodial term); and (3) April 2022 (resulting in the imposition of a further 12 month custodial term).
Both the frequency of the Applicant’s offending and its undeniable trend of increasing seriousness (in the particular context of domestically violent offending) does militate in favour of a finding that his offending has been of a very serious nature.
Sub-paragraph 8.1.1(1)(e): a number of cumulative effects can be gleaned from the Applicant’s offending. First, and perhaps most significantly, is the impact it has had on the victim. The Applicant’s conduct towards the victim of his domestically violent conduct has at once been threatening, menacing, demeaning and utterly devoid of any respect for her either as a person in her own right or as the biological mother with whom the Applicant has had children. There is no requirement to recount or quote the dreadful aspects the Applicant’s conduct towards the victim as recorded in the relevant police documents. It suffices to say the conduct towards the victim has been appalling.
Second, a not insignificant portion of the Applicant’s domestically violent conduct was committed in the presence of his children. There is a repeated reference in the material to this effect ‘The children were present and inside the house whilst the defendant was abusing the aggrieved.’[20] I regard the actual or potential impact of the Applicant’s domestically violent conduct on the children to be at a same or similar level to the impact on the spouse/victim.
[20] Exhibit 3, p 39. See also pp 87-88.
Third, the Applicant’s conduct undoubtedly betrays an abject failure to respect the lawful authority around (1) the management and control of major tourist destinations such as a casino; (2) police officers going about their official duties; and (3) the laws and regulations governing the ownership, management and control of a motor vehicle on Australian carriageways. Fourth, the Applicant’s conduct has, without question, consumed more than its fair share of the community’s policing resources and judicial sentencing resources.
To my mind, the four cumulative effects discernible from the Applicant’s conduct cumulatively militate in favour of a finding that the nature of his unlawful conduct in Australia has been very serious.
Sub-paragraph 8.1.1(1)(f)
: as mentioned at the commencement of these Reasons, the Applicant arrived here in mid-2003 and has only been absent for one week in July 2011. His absence was due to a requirement to attend a family funeral in New Zealand. Upon

re-entry into Australia the Applicant was required to complete the usual incoming passenger card. That card contained the question ‘if you are NOT an Australian citizen: do you have any criminal conviction/s?’ The Applicant ticked the ‘No’ answer. The card is dated 28 July 2011.[21] By that date, the Applicant had convictions for at least nine offences in Australia.
[21] Exhibit 1, p 405.
When cross-examined about this incorrect answer, the Applicant (1) accepted that his answer was incorrect because he had compiled a list of convictions at that time; but that (2) he ticked the ‘No’ answer because he thought a criminal conviction involved him being placed into actual custody consequent upon his attendance at a given sentencing hearing. Because none of his offences up to that time (i.e mid-2011) involved the imposition of actual custodial time,[22] he thought the correct answer to the question posed by the card was ‘No’.
[22] Note to reader: all of his offending prior to mid-July 2011 was punished by way of fines . The exception is the sentence he received in January 2010 involving a term of imprisonment for 1 month which was wholly suspended for an operational period of 18 months. Be that as it may, this particular sentence, although custodial in nature, did not involve the Applicant spending time in actual custody.
The only safe finding is that the evidence around this incorrectly completed card must be found to be opaque and unclear. We do not know what, if anything, motivated the Applicant to record a negative answer. It would be an unfair stretch of the evidence to find that the Applicant’s provision of a negative answer was deliberately made as a means of protecting his visa status to re-enter and/or remain in Australia. Any such finding could be counter-balanced by a finding that he made a genuine mistake thinking that ‘conviction’ meant ‘actual time spent in a custodial institution’.
The somewhat conflicted state of the evidence around this particular sub-paragraph leads me to find that this only slightly militates in favour of a finding about the nature and seriousness of the Applicant’s conduct.
Sub-paragraph 8.1.1(1)(g): to the best of my understanding of the material, there is no reference to any written formal warning (or similar admonition) about the consequences of the Applicant committing further offences in terms of his visa status to remain here. This sub-paragraph is not relevant.
Sub-paragraph 8.1.1(1)(h) As I have previously mentioned, we are not aware from the material that the Applicant has actual convictions for offending in New Zealand. This sub-paragraph is not relevant.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have sought to apply each of the relevant paragraphs contained in paragraph 8.1.1(1) of the Direction to the evidence before me. I am satisfied that the paragraphs applicable to the evidence before me do safely lead me to the conclusion (and finding) that the totality of the Applicant’s unlawful conduct in this country can be found to be very serious. I so find.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Sub-paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Sub-paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the 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 the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
As mentioned earlier, some 22 of the Applicant’s convictions appearing in the criminal history were committed in the realm of domestic violence. There is surely no cavilling with the finding that were he to re-commit his appalling domestically violent conduct towards another victim, the nature of the harm to be suffered by that victim would, in all probability, be identical to that suffered by the victim of his past domestically violent conduct. I extend this finding to whatever extent the children were adversely affected in circumstances where the Applicant perpetrated his domestically violent conduct in front of them as well.
Were the Applicant to re-commit any of his other than his domestic violent conduct, the nature of the harm would be less significant and less palpable. If he were to again fail to appear in a court in breach of a bail undertaking, the community’s policing resources would be compelled to take enforcement action, most probably in the form of a warrant for his arrest. Were he to again refuse to follow the lawful direction of a police officer, that officer would be compelled to take all necessary steps to ensure the community was protected from such a refusal. Were he to again make a nuisance of himself in the precincts of a casino or other publicly accessible venue, then the authorities charged with responsibility for safely managing that site would have to take action to deal with him.
In terms of the nature of resulting harm in the event of further offending by this Applicant, I will focus on his domestically violent conduct. Were he to re-commit such conduct there is little to cavil with the proposition (and finding) that very serious physical, psychological – and potentially catastrophic harm – would be suffered by its victim and others (most notably minor children) that were exposed to it. I have no difficulty in concluding that offending of the type comprising the domestically violent offending, and the harm that would be caused, were such conduct to be repeated, is so serious that any risk of its re-commission would be unacceptable to the Australian community. I so find.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Applicant’s written evidence: at the time he made representations to the Respondent seeking revocation of the mandatory cancellation of his Visa, the Applicant provided a
two-page written statement. In that statement he said the following about his intention to engage with a rehabilitative process. He also spoke about changes he had made in his life resulting from his physical and mental health as well as the impact he experienced as a result of the recent passing of his younger brother:
‘… I will see my doctor for ongoing correct medication, counsellor for my mental health and anger management, Online Smart Recovery and Narcotic Anonymous meetings to deal with my substance abuse issues. I attend reintegration classes at BITA which have helped immensely [sic] with everything.
I receive the maximum 60 activity points every week for completing my activities. I am training five days per week. I have cut down to six cigarettes per day. I am mentally, emotionally and physically stronger to become the best version of myself. My younger brother [name redacted], aged 31 recently passed away [in March 2023] by heart attack. Dealing with this and the situation I am in is hard but due to the changes and steps I am doing, and being clean, clear-headed, I am coping with it. I am trying to make a better life for myself and be better equipped to handle situations.’[23]
[23] Exhibit 1, p 109.
The Applicant’s oral evidence: during the Hearing, I put certain questions to the Applicant relating to specific elements that could now be said to speak to his recidivist risk. The transcript reveals that the Applicant spoke to those elements in these terms:
·he agreed that he has had significant difficulties with illicit drugs, they being cannabis and methamphetamine. He also agreed that he has had difficulties with abusing alcohol but that his primary addiction difficulties have centred around illicit drugs;[24]
[24] Transcript, p 51, lines 14-24.
·he also agreed that his abuse of illicit substances in the past has arisen whenever he has experienced a ‘big problem’ or a ‘big difficulty’ in his life. He further agreed that those significant difficulties or crises involved personal issues (in a domestic sense) with his former partner (and victim of his domestically violent conduct) and/or the police. When confronted with those difficulties, he agreed that he sought and found relief in the consumption of illicit drugs;[25]
[25] Transcript, p 51, lines 26-45.
·he agreed that the two specific causes or reasons for his unfortunate involvement with illicit drugs were (1) the occasions when he experienced significant and seemingly insurmountable stressors in his life; and (2) from the influence of negative peer groups around him who derived from a lifestyle and culture of illicit drug use;[26]
[26] Transcript, p 52, lines 1-23.
·in terms of his capacity to now demonstrate to this Tribunal some measure of successful navigation beyond and away from illicit drug abuse he made repeated references to the rehabilitative courses he has completed. Be that as it may, he nevertheless agreed that despite engagement in, and completion of, these courses, he had not yet received sufficient psychological assistance – in the clinical rehabilitative sense – such as to now be able to definitively demonstrate he had overcome his past difficulties with illicit substance abuse:
‘SENIOR MEMBER: Well, you’ve got more treatment to do, wouldn’t you?
APPLICANT: Definitely I’ve got more treatment to do. It’s not, ‘I’ve done this. The problem’s solved’. It’s, ‘I’ve done this. I’ve started’.’[27]
[27] Transcript, p 52, lines 38-40.
·he also agreed that, to whatever extent he can now demonstrate a capacity to avoid any relapse into illicit drug use, such abstinence had occurred in the closed confines of either prison and/or immigration detention. He mentioned that he had already been – to some extent – tested during the approximately 19 months he has spent in prison and/or immigration detention but that ultimately, he was at the start of his drug rehabilitation journey:
‘SENIOR MEMBER: You accept that that success happened in the closed world of either prison or immigration detention?
APPLICANT: Yes.
SENIOR MEMBER: Okay?
APPLICANT: Yes.
SENIOR MEMBER: You would have to accept, I would think, that it’s a different test of your ability to stay away from drugs if you were in the general community where drugs are much more reasonably available to you. It’s a different test. That’s not to say you won’t succeed?
APPLICANT: Yes.
SENIOR MEMBER: But it’s a different test?
APPLICANT: Yes. It’s definitely a different test.
SENIOR MEMBER: All right?
APPLICANT: But for myself, you know, I have somewhat been tested, and I’ve passed, you know, to myself.
SENIOR MEMBER: Yes?
APPLICANT: I’m going on 19 months. Yes.
SENIOR MEMBER: You’ve somewhat been tested, right?
APPLICANT: Yes.
SENIOR MEMBER: That’s fair enough?
APPLICANT: Yes.
SENIOR MEMBER: And that’s very truthful of you to say that, but you would agree that, as you just said, you’re at the start of the drug rehabilitation journey, really?
APPLICANT: Yes.’[28]
·I took the Applicant to two specific instances where upon his release from the closed confines of prison, he did, on no less than two occasions, relapse back into the abuse of illicit drugs and very seriously re-offending:
‘SENIOR MEMBER: You agree, as you did in your evidence, that when you were released and back in the community from 2016 until 2021 when you went back into custody ‑ ‑ ‑?
APPLICANT: Yes.
SENIOR MEMBER: - - - that you did relapse back into using drugs?
APPLICANT: Yes.
SENIOR MEMBER: Okay. And you also accepted that when you – again, you were released from 2021 until the start of 2022 when you went back into custody, you agree that during that period outside, you again relapsed and used drugs?
APPLICANT: Yes.’[29]
[28] Transcript, p 53, lines 9-31.
[29] Transcript, p 54, lines 12-20.
Information and evidence about recidivist risk including evidence of rehabilitation: there is a range of material before the Tribunal pointing to either courses completed by the Applicant and/or individual observations made by clinicians:
·the Applicant completed a six hour ‘Explore’ program on 16 June 2022 which is a program directed towards assisting substance abusers with ‘awareness, rehabilitation, management’ of the issues they have had and/or continue to have with illicit substance abuse;[30]
[30] Exhibit 1, p 100.
·the Applicant has also completed (or at least participated in) the ‘Coach Yourself to Wellness Program’. This appears to be a program concentrating on the participant’s physical wellbeing. To goals of the program are expressed in these terms:
‘There are many definitions of wellness. Being the best we can be emotionally, physically, mentally and spiritually is what we all really strive for. We 're going to concentrate on the physical side and if some of the other areas improve, that's a bonus.’[31]
[31] Exhibit 1, p 225.
·the material also contains a certificate about the Applicant successfully completing the DoFoodSafely assessment on 31 January 2023;[32]
[32] Exhibit 1, p 321.
·there is a duly completed attendance and participation form from SmartRecovery Australia confirming the Applicant attendance and participation at five sessions during the period 4 November – 2 December 2022;[33]
[33] Exhibit 1, p 322.
·the Applicant has also completed an anger management course wherein he acknowledged that his difficulties with anger ‘…create issues between people I care about.’ He acknowledged that the unhealthy strategies he has previously used to deal with his anger have been ‘drugs, unsupervised medication’;[34]
[34] Exhibit 1, p 323.
·the Applicant has also participated in (and presumably completed) the ‘Lives Lived Well Do – It Program’. The participant workbook appears in the material.[35] The program is geared towards assisting people with substance abusing symptomatology to re-orient their conduct away from illicit substance abuse. The program comprises some 12 sessions ranging from ‘how negative thinking impacts on behaviour and change’ to ‘managing cravings and urges’ to ‘understanding and managing lapse and relapse’;[36]
[35] Exhibit 1, pp 324-397.
[36] Exhibit 1, pp 324-397.
·Centacare is a support service run by the Catholic Church. It is a program to provide, inter alia, a ‘men’s domestic violence behaviour change program’. Centacare’s report appears in the material and it records that:
…as of the 2 March 2021, James Ross has been attending the Men's Domestic Violence Behaviour Change Program, with Centacare Family & Relationship Services (CFRS).
To date, James Ross has attended a total of four out of sixteen two-hour sessions covering the following topics:
…
2. What is Anger?
…
4. What is the Impact of Domestic Violence/Abuse on Women?
…
6. What is the Cycle of Family and Domestic Violence?
…
14. Values and Belief Systems.’[37]
[37] Exhibit 1, p 398.

During his cross-examination, the Applicant was asked about why he attended only four of 16 sessions. His response was both unconvincing and implausible:
‘MS ALLEN: But you only attended four out of those 16 sessions?
APPLICANT: Yes. That’s right. That’s right. Yes, yes.
MS ALLEN: And why is that? Why only four?
APPLICANT: So I was – I think I was incarcerated when I asked [sic] to my mum was – my mum to go to the place because – because I couldn’t talk to them directly or couldn’t go there because I think I was incarcerated. It’s all that they could – it’s all – it’s all the office said that I had done, even though I said I had attended more. Yes. Even though I said I attended more. How do I say it? I think it’s – I believed I attended more, but, yes, there’s only four written down in the statement.’[38]
[38] Transcript, p 30, lines 29-38.
·on 18 May 2023 the organisation known as International Health and Medical Services (‘IHMS’) performed urine drug screening on the Applicant and reached a conclusion that ‘Nil drugs of abuse detected’ in this Applicant. Those drugs included, for example, benzodiazepines such as cocaine, marijuana and methamphetamine;[39]
[39] Exhibit 6.
·QuIHN Ltd is an independent not-for-profit providing a range of specialist social and medical services relating to alcohol, other drug use and mental health. Operating Queensland-wide, QuIHN provides programs across a continuum of care comprising of harm reduction programs, therapeutic programs and primary medical care.[40] There is a report from QuIHN dated 16 May 2023. It relevantly records the following:
[40] QuIHN’s website.
“Mr Ross has engaged with QulHN to commence one on one counselling. He
completed an intake assessment appointment on 15/05/2023 and has been
placed on our waitlist for counselling. I would expect him to be allocated to a
counsellor within approximately 16-20 weeks from the date of this letter.
Mr Ross has also expressed enthusiasm around participating in our open
groups upon his release from detention.”;[41]
[41] Exhibit 8.
·there is a further report from QuIHN which confirms the Applicant ‘…completed an intake assessment appointment on 15/05/2023 and has been allocated Dual Diagnosis Therapist 23/6/23 and booked into phone session for 3/7/23 at 11:00am AEST, with future sessions planned.’;[42]
[42] Exhibit 11.
·the material also contains a ‘Participant’s Manual’ resulting from the Applicant’s involvement is the ‘Circuit Breaker’ program which is postulated as ‘New tools to mend relationships, resolve conflict & stop you blowing your fuse.’;[43]
·for the purposes of this Hearing, the Respondent, in its role as model litigant, summonsed the records from IHMS relating to this Applicant. Those records are bulky and voluminous.[44] The IHMS records make reference to the Applicant’s time in prison. Those records note that he has been in prison three times: (1) in 2016 for three months on remand consequent upon his breach of a domestic violence order; (2) in 2021 for four months on remand for a further breach of a domestic violence order; and (3) 2022 for nine months for further breaches of a domestic violence order and for otherwise not meeting the conditions of probation.[45] These IHMS records also contain notes made by the psychiatrist, Dr Jillian Spencer on 2 January, 2023. The referral to Dr Spencer was made by a Primary Health Nurse on 1 January 2023.[46] Dr Spencer noted these things:
‘No sense of persecution.
No AH/VH.
MSE: adult man, tall and solid, obese. Wavy, brown hair, clean shaven. Poor dentition. Clean and casually dressed. Good eye contact.
Friendly and polite, cooperative. No psychomotor changes. Speech of normal rate, volume and prosody. Mood: euthymic. Affect reactive.
Thought normal in tempo, no FTD. No delusions or psychotic symptoms. No perceptual disturbances. Alert and orientated.
Imp: recent distress related to events with his son, no mood, anxiety or psychotic disorder currently.
Plan: review mental state in two weeks as per mental health nurse plan.’
[My emphasis]
[43] Exhibit 12.
[44] Exhibit 13.
[45] See Exhibit 13, p 4 of 19.
[46] Exhibit 13, p 106 of 156.
Mr Greg Hutcheon is a psychologist who prepared a psychological report prepared on

26 June 2023 appears in the material.[47] This report was prepared at the request of a mental health nurse at IHMS.[48] The report contains the caveat that ‘It is not a medico legal report and is not intended for any other purpose or for any third party without the permission of the treating psychologist.’[49] I am mindful of this caveat stipulated by Mr Hutcheon. I am also mindful that it is a document placed before me by the Applicant in this case and sought to be relied upon by him. Were I to completely disregard this document, I am concerned that it could later be found that I did not take into account something squarely raised before me by this Applicant.
[47] Exhibit 18.
[48] See Exhibit 13, p 105 of 156.
[49] Exhibit 18, p 1.
Mr Hutcheon has had seven sessions with the Applicant. The initial session was on

6 February 2023 and the latest one was on 26 June 2023. Mr Hutcheon confirms that the Applicant was referred to him ‘…for the assessment and treatment of relapse prevention and to help him explore his history and pattern of interpersonal relationships.’[50] Mr Hutcheon conducted the following psychometric assessment on the Applicant which yielded these results: [51]
[50] Exhibit 18, p 1.
[51] Exhibit 18, p 3.

Measure Pre-treatment Mid-treatment Post-treatment

DASS 21 (Depression, Anxiety & Stress Scale) Not completed 26^th June 2023, Completed Pending

Depression Depression Score=1. This is a Normal level.

Anxiety: Anxiety Score=4. This is a Mild level.

Stress: Stress Score=4. This is a Normal level.

DSM-V Diagnosis: Previous hx of substance abuse disorder, query ASD traits

Further in his report, Mr Hutcheon made the following comments under the heading ‘Treatment Plan and Progress’:
‘James presented as strongly motivated to engage in therapy and to explore how his personality has affected his life, relationships, and depression and substance use issues. Treatment centred around narrative therapy, schema therapy, engaging in values-based work and goal setting, as well as relapse prevention work and building on his emotional regulation and communication strategies.
He is engaging in multiple counselling and courses and appears committed to self-improvement. He has been able to apply strategies to manage interpersonal conflict in the detention environment and has engaged well in exploring his future goals and developing strategies to manage likely barriers to achieving them.’[52]
[52] Exhibit 18, p 4.
Finally, Mr Hutcheon noted the following under the heading ‘recommendations for future management’: ‘James engaged well in appointments in discussing his values and future goals. He has indicated that he wishes to continue with psychology in the future…’.[53] Mr Hutcheon was not called to give oral evidence and his evidence was not tested in cross-examination.
[53] Exhibit 18, p 5.
Observations by past judicial sentencing officers: there is some reference, albeit oblique, about the Applicant’s level of recidivist risk in the sentencing remarks before the Tribunal. First, when sentencing the Applicant on 20 April 2022, Her Honour, Magistrate Balic observed that the influence of the Applicant’s work qualifications and employment and the family around him were features that could be said to be of benefit to the Applicant in a recidivist sense. Be that as it may, Her Honour also noted that those features had:
‘…been consistently present at the time when you were committing all of these offences on your history, and particularly with the offences with which we are dealing with here today. So in terms of it being a protective factor, one starts to wonder how protective a factor it really is. But it is certainly a fact that I’ve taken into account.’[54]
[54] Exhibit 1, p 40, lines 8-12.
Magistrate Balic was also cautious about the extent to which the Applicant’s claimed mental health symptomatology could not be found to reliably speak to the level of his recidivist risk. Her Honour was not prepared to accept that the Applicant’s claimed mental health symptoms could be safely found to be causative of the Applicant’s past breach of a suspended sentence:
‘And whilst I understand the nature of the submission in order to give you some certainty of release, to my mind you’re not, at this stage, a candidate for a suspended sentence in circumstances where you’ve breached the same in the past, where you clearly are a person who, I’m told, has some mental health issues, and whether or not they are aligned, because I’m told that you were not medicated, to the nature of the offending, there is a gap of evidence about that.’[55]
[55] Exhibit 1, p 40, lines 23-29.
Second, at an earlier sentencing hearing in April 2019, Her Honour Magistrate Dooley was dealing with an earlier breach of a suspended sentence by the Applicant consequent upon further breaches of a previously-made domestic violence order. Her Honour observed that in terms of the Applicant’s claimed metal health symptomatology:
‘You do have a letter today of support, and you also have a letter from your psychologist showing that you are, at least, attempting to address these issues. You should get a mental health plan and see if you can get a decent number of attendances with a psychologist, or consider the Men’s Domestic Violence course; that is another matter that you could consider.’[56]
[56] Exhibit 1, p 47, lines 19-23.
Family support: the evidence of the Applicant’s mother: the Applicant’s mother has provided two written statements which are before the Tribunal. She also provided oral evidence at the Hearing before me. The first of her two statements appears to have been provided as part of the Applicant’s representations to convince the Respondent’s Department to revoke the original mandatory cancellation decision. This first statement has little to say about the Applicant’s recidivist risk, but nevertheless records the following:
‘I also have a selfish wish for him to remain [in Australia] as he is a very good gardener…plus he would help me with my household chores as I now have Rheumatoid Arthritis. I would find his care to be really beneficial.’[57]
[57] Exhibit 1, p 106.
In her second statement, the Applicant’s mother says the following:
‘I would like to start with thanking the court for giving me the opportunity to write this letter for my son. To support his bid to stay in the country with my grandchildren.
I would like to give instances that support the need for my grand children to have there father with them, for their future.
I find this a very important need due to their ages and needs, starting with his youngest, [Child SK], with having been diagnosed with autism she obviously has ongoing issues to her personal growth, she has always been extremely close to her Dad, point of issue being our last visit to see James, after big hugs pretty much her next comment was 'when are you coming home Dad?' He was in fact the only one she would listen to when she had behavioural issues, she would start screaming at anyone else including her mother, James was the only one she would listen to, and calm down with.
[Child DR] suffers from asthma. He is very close to his Dad, which he can attest too. He doesn't have the extreme medical issues of both [Child SK] (autism) & [Child JR] (visual impairment). He and [Child JR] both used to spend over night trips to the hospital, due to asthma, but [Child JR] seems to have outgrown the asthmatic symptoms. [Child JR] still continues to require on going treatment for his visual impairments. I will go into more detail further into this letter.
[Child HE] needs guidance with his temperament, he can go off the hook at times, but he's a growing normal lad. While James has been incarcerated, he himself is continuing to learn new skills problem solving, which in turn he is passing on to his children.
[Child JR], spent 14 weeks in University Hospital, four years ago, coming out the day before Xmas, James was staying overnight with him and going to work from the hospital during the daytime throughout this time, [Child JR] would love his father home for his graduation especially being his oldest boy to graduate, [Child JR]’s impairment is a very big issue that has left him with very little sight in one eye and not much more in the other one.
In regards to myself, I would like to see my son remain here in Australia as I look on Australia as my home, he would be my support here as a retiree, helping me throughout my getting older, he is an excellent gardener, mowing my lawns helping with my housework (he's a bit OCD) which works to my advantage, I guess realistically. I just want him to remain in Australia, more so for his kid's, but also for myself.’[58]
[58] Exhibit 16.
During her oral evidence, the Applicant’s mother told the Hearing that the Applicant had, in the past when his relationship with his domestic partner was not travelling well, come to reside with her [being the Applicant’s mother].[59] This evidence of the mother runs parallel with that of the Applicant and his sister who told the Hearing that if returned to the community, he would go and reside with her [being the Applicant’s mother].[60]
[59] Transcript, p 63, lines 1-35.
[60] See Transcript, p 99, lines 22-43.
Family support: the evidence of the Applicant’s sister
: the Applicant’s sister provided two written statements which are before the Tribunal. They are respectively dated

17 January 2023[61] and 25 June 2023.[62] In her first statement, the Applicant’s sister says:
‘…I am the head of my family here in Australia. Most family gatherings are held at my residence here in Brisbane. They can range from family bbqs to heading out to Bribie Island…… I mention the above as James has been a part of many of these. Sadly my brother has missed a few recently due to poor choices & a unsupportive support network . I hope to be given the opportunity to help reintegrate my brother back into the community to be a positive productive member of society. Most importantly to help him be the amazing dad he is & was before personal turmoil & addiction destroyed his life.’[63]
[61] Exhibit 1, pp 107-108.
[62] Exhibit 14.
[63] Exhibit 1, p 107.
In the second of her statements, the Applicant’s sister acknowledges the Applicant’s poor life choices that have placed him in his current predicament. She adds that:
‘We as a family are asking for one final opportunity to have our father, son, brother here with us. So we can help support him to be a productive member of society. To help him learn new skills & tools that will achieve a positive outcome.’[64]
[64] Exhibit 14.
In her oral evidence, the Applicant’s sister spoke of being in regular telephone contact with the Applicant and that they ‘…sometimes [speak on the telephone] about five times a day…’.[65] She also spoke about ‘…we have family group meetings…we’re all talking…all together to have a convo.’[66] In terms of the future outlook for this Applicant the following exchange occurred between me and the Applicant’s sister:
‘SENIOR MEMBER: And family. So how do you think he’s going to look? Drugs-wise – violence‑wise, that sort of thing?
MS TAINGAHUE I think given the changes that I have seen in my brother, given the honesty that we’ve all had as a family and acknowledged those – the trials – you know, the hardships that he has had, we can support him better to make better choices. I reckon he would be awesome. I think this final lesson for him is that there’s no – no family back there, hey, bro. No kids.’[67]
[65] Transcript, p 96, lines 11-12.
[66] Ibid, p 96, lines 13-15.
[67] Transcript, p 100, lines 7-13.
Availability of employment: the evidence of Mr Raph U: Mr Raph U is the owner/proprietor of the business trading under the firm name or style of [company name redacted]. Mr U’s undated ‘letter of employment verification’ appears in the material[68] and was prepared according to the Applicant ‘…last year sometime…’[69]. It is worth recording the terms of Mr U’s letter in full:
‘To Whom It May Concern,
I confirm that James Ross has been previously employed by my company, [company name redacted] , on and off from September 2003 - August 2022.
He was employed as leading hand scaffold worker on a casual basis. He turned up to work on time and completed the work required well.
Please contact me if you require any further details…’[70]
[68] Exhibit 1, p 399.
[69] Transcript, p 79, line 25.
[70] Exhibit 1, p 399.
I was interested in exploring the specific nature and extent of the Applicant’s qualifications and work experience in the scaffolding field. At the conclusion of the first day of the Hearing, I urged the Applicant to try and make contact with Mr U overnight and to see if he could give oral evidence at the Hearing. It transpired that Mr U was abroad on annual leave but that he nevertheless took time out from his overseas holiday to assist the Tribunal with the provision of his oral evidence.
Mr U confirmed the content of the abovementioned ‘letter of employment verification’.[71]
[71] Transcript, p 79, lines 11-18.

Mr U confirmed that his abovementioned letter of verification was evidence of the fact that his business had intermittently employed the Applicant for a period of 19 years from

September 2003 until August 2022.[72] He confirmed that the intermittent nature of the employment was not due to any dilatoriness on the part of the Applicant, but was due to his business not having enough work to employ him all of the time.[73] He said trading conditions for his business had changed and that presently his business had a lot of work on. I asked him whether the Applicant would be immediately able to secure work with his business:
[72] Transcript, p 80, lines 12-16.
[73] Transcript, p 80, lines 22-28.
‘SENIOR MEMBER: So one thing that I wanted to know about, which I don’t see in your statement but I can ask you about it, is, if this tribunal gives him his visa back, is it the case that your business will be able to offer him employment?
MR U: Yes. I will be able to offer him employment, if and when I do have work. Yes.
SENIOR MEMBER: Okay. So you’ll be able to offer him employment if and when you do have work. All right?
MR U: Yes.
SENIOR MEMBER: Let’s say that he gets his visa back by 19 July 2023. So that’s in a couple of weeks, just over a couple of weeks from now. Actually, nearly three weeks?
MR U: Yes.
SENIOR MEMBER: Say in three weeks the tribunal gives him his visa back. That’s just before the end of July. Will he be able to at least have some work to do with your business there, or would he be waiting for months until work was available for him?
MR U: No, I’ll be able to give him work, because, at this moment in time, I am desperately in need of qualified, ticketed scaffolders, because you can’t – we can’t find them in Gold Coast and Brisbane at this moment in time. We got no qualified scaffolders available. My – yes, I can use it.
SENIOR MEMBER: Right now, you could use him Would that he fulltime or close to fulltime?
MR U: Close to fulltime I can use him, yes.’[74]
[74] Transcript, p 80, lines 36-46; p 81, lines 1-10.
Mr U explained the various levels of qualifications available to people working in the scaffolding field. He explained there were three levels: basic – which allows the holder of that qualification to build a scaffold of up to four meters in heigh; then there is intermediate level and advanced level. Mr U explained that the Applicant ‘…has been qualified to do like advanced ticketed scaffold – …which we need at this moment. In Australia, we’re desperate for scaffolders – qualified scaffolders.’[75] He confirmed that he would engage the Applicant to do both intermediate and advanced scaffolding work, meaning the Applicant could build a scaffold of greater than four meters in height.[76]
[75] Transcript, p 81, lines 17-22.
[76] Transcript, p 81, lines 41-47.

I took Mr U to the quality of the Applicant’s scaffolding work and he responded thus:
‘SENIOR MEMBER: In terms of your work history with Mr Ross, what can you tell us about the quality of his work and his attitude on the job?
MR U: Well, he has been – in fact, I – I’ve virtually used him as a supervisor. He started as a labourer.
SENIOR MEMBER: Yes?
MR U: And I virtually taught him as a labourer, and I gave him a lot of hints and taught him how to scaffold, and he even went as high as being supervisor, supervising my jobs as well. So yes, he’s – yes, I’d employ him any day, I think, you know.’[77]
[77] Transcript, p 82, lines 26-33.
Mr U confirmed that he employs up to 20 scaffolders at any one time and that his business is contracted to do work at job sites in South-East Queensland – primarily Gold Coast, Brisbane and the Sunshine Coast, but that his business does work ‘Down as far as Coffs Harbour as well.’[78] He confirmed that he had been operating his business for about 20 years.
[78] Transcript, p 83, line 13.
I sought to explain to Mr U the domestic violence-type offences committed by the Applicant and that the Applicant had compiled a record of some 40 convictions in this country. I asked him whether he knew anything of the Applicant’s domestic violence offending history and he responded this: ‘No, no. Not at all.’[79] He confirmed that the Applicant had never brought his personal issues to the workplace and had never conducted himself in an aggressive or violent way on any of his job sites.[80]
[79] Transcript, p 84, line 4.
[80] Transcript, p 84, lines 15-18.
I also sought to explain the Applicant’s difficulties with illicit drug abuse primarily with marijuana and methamphetamine. I asked him ‘Were you aware that he’s had a long history of that [drug] trouble?’ to which he responded ‘No. wasn’t aware.’[81] He was also not aware that the Applicant had used these types of illicit drugs as recently as 2022.[82] Mr U’s position with regard to his workers either using or being found to have used illicit drugs while on his worksites was put in these terms:
‘SENIOR MEMBER: It’s very specialised work. You’re responsible for the safety of not just your own workers, but other trades that come on job sites. How do you now feel about giving employment to someone like Mr Ross, knowing that he has had and is not necessarily continuing to have but that he’s in the process of sorting out his difficulties with drugs and alcohol? How do you now feel about employing him? Would you still put him on a job site next Monday?
MR U: Well, I’ll still put him on job site, yes. But my company policy is no alcohol, no drugs.
SENIOR MEMBER: All right?
MR U: And he’s aware of that, and that’s any construction site. That’s on any construction site. So if he breaks that policy or breaks that rule, he will be, yes, terminated. He – his contract becomes terminated.
SENIOR MEMBER: Okay?
MR U: I’ll sack him on the spot.’[83]
[81] Transcript, p 84, lines 31-32.
[82] Transcript, p 84, lines 34-35.
[83] Transcript, p 84, lines 43-47; p 85, lines 1-9.
Finally, Mr U confirmed that the Applicant was a capable scaffolding tradesman and that he would willingly employ him if the Applicant were returned to the community:
‘SENIOR MEMBER: Yes. So I take it from your evidence that, in a trade sense, right, you really think he knows what he’s doing. As a tradesman, you think he knows what he’s doing?
MR U: Yes. He knows very well what he’s doing, but on the basis that he knows full well that he can’t have alcohol or drugs on site. That is the ruling on any construction site. That’s in Australia it’s a – I’m sure it is standard ruling.’[84]
[84] Transcript p 85, lines 33-38.
Findings about risk
As best as I understood it, when distilled, the evidence talks to the following findings about the level of the Applicant’s recidivist risk.:
·the primary difficulty with the Applicant’s evidence about rehabilitative treatment is that it is postulated into the future. True it may be that he has participated in and completed a number of courses oriented towards the re-establishment and maintenance of his physical health, his capacity to moderate his emotional responses and his capacity to resist and otherwise deal with cravings and predispositions towards illicit and mind-altering substances as a means of dealing with difficulties in his life. He is not able to point to a demonstrated pattern of engagement with a clinician who has assumed responsibility for ongoing care and control of the factors that in the past have predisposed him to illicit substance abuse and to very serious offending. He is to be commended for being forthright enough to acknowledge that his journey in coming to grips with illicit drugs is at its beginning. As we do not know the outcome (or even the progress of) that journey, the Applicant’s evidence has little or nothing to contribute to an assessment of his current recidivist risk;
·
as to the clinical evidence actually before the Tribunal, I have recounted the nature and extent of the courses in which the Applicant has participated and have, in the immediately preceding paragraph, stated my views about the quite limited capacity of those courses to speak to recidivist risk. From a purely clinical perspective, I have referred to the IHMS records which contain (1) the urine drug screening performed on the Applicant on 18 May 2023 which produced a ‘Nil drug of abuse detected’ result; (2) the written observations of the psychiatrist Dr Jillian Spencer recorded on 2 January 2023 which importantly noted the Applicant had ‘no psychotic symptoms…no mood, anxiety or psychotic disorder currently’; and (3) the written observations of the psychologist Mr Greg Hutcheon (to whom the Applicant was referred by an IHMS Mental Health Nurse) who noted the Applicant’s strong motivation to engage in therapy and that he otherwise appears committed to self-improvement and continuing with psychological treatment in future. Combined, this evidence from the IHMS data speaks, to my mind at least, of an Applicant who has notable potential to achieve very good results were he to engage in and consistently observe an ongoing pattern of remedial treatment and management of his

pre-dispositive symptoms. Once again, this scenario is postulated into the future and cannot assist this Tribunal to assess the Applicant’s current level of recidivist risk;
·the findings and observations of previous judicial sentencing officers demonstrate caution and reserve around claimed protective factors militating against recidivist risk. Her Honour Magistrate Balic was sceptical about the extent to which the Applicant’s employment and or family commitments had in the past prevented him from very seriously offending. Her Honour was similarly apprehensive about the extent to which the Applicant’s claimed mental health symptomatology could be found to speak to the causes behind his past offending. Specifically, Her Honour thought ‘there is a gap in the evidence about that.’ In a similar vein, Her Honour Magistrate Dooley urged the Applicant to seek expert clinical psychological intervention into the factors predisposing him to behave so violently in a domestic setting;
·the evidence of family support, the Tribunal received the abovementioned evidence from his mother and sister. With reference to the former, I thought the primary point to be taken from her evidence was that she can be taken at face value when she suggests the Applicant will reside with her. I think her evidence in this regard is both credible and reliable. The difficulty with that evidence is that the Applicant has resided with her previously when he was compelled to leave the family home he previously shared with his domestic partner and their children. Even though the Applicant returned to reside with his mother back then, it did not stop him from very seriously re-offending. The Applicant’s sister is a mature and serious lady who has significant family and work responsibilities of her own. Those commitments will not get in the way of her providing support and mentoring to this Applicant if the circumstances of his life were again to go awry. The difficulty with the sister’s evidence – well intended though it may be – is that it all depends on the extent to which the Applicant will turn to and rely on her as a means of regularising his moral compass. He has not done so in the past;
·the evidence of employment, I have recounted the written evidence of Mr Raph U and his even more impressive oral evidence which he provided while abroad and trying to enjoy an overseas holiday. I accept the evidence of Mr Raph U to the extent that the Applicant is (1) highly qualified in the scaffolding field; (2) able to secure – immediately – work with Mr U’s business if returned to the community; and (3) that so highly does Mr U value the Applicant’s work abilities that he would nevertheless employ him knowing of his past difficulties with illicit substance abuse, alcohol and his very serious history of offending, especially at a domestic level. This evidence (and these findings) about his employment assists the Applicant because of all the elements thrown up by the evidence, this is the one with the greatest potential for facilitating the Applicant’s return to the community as a law-abiding non-citizen with a capacity to immediately secure employment and financial security;
·the evidence of past relapses, in the end, what really matters is not what lay and expert witnesses might say about what the Applicant might do if returned to the community. All of those observations are postulated into the future. What we do know are these things: (1) the Applicant relapsed into abusing illicit drugs when released from custody in 2016 and very seriously re-offended; (2) he relapsed into abusing illicit drugs when released from a custodial environment in 2021 and very seriously re-offended; and (3) the Applicant’s capacity to abstain from illicit drugs upon a return to the general community this time remains untested beyond the closed confines of either criminal custody or immigration detention. Only a suitably qualified clinician with a longitudinal comprehension of the Applicant’s psychological history who has put in place a demonstrated plan of remedial treatment and control for him can safely answer why the Applicant has twice relapsed and why this Tribunal can now safely accept that things are different. That evidence is not before the Tribunal.
Assessment of recidivist risk
The Respondent contends ‘…that there remains an unacceptable risk that the Applicant will re-offend…’.[85] The reason that this submission gives me reason to pause is that whether or not a person’s recidivist risk is unacceptable is a finding that can only be safely made if one knows (or can benchmark) the level of that risk. Here, I think assessment of the Applicant’s recidivist risk can be more reliably described as an unresolved risk due to the dearth of clinical opinion and the stark reality of two previous relapses that had very serious consequences. His level of recidivist risk must necessarily be found to be unresolved and consequently unknown because he is only at the start of his rehabilitative journey. Could the unresolved and unknown nature of the Applicant’s recidivist risk now be found to be unacceptable to the Australian community – in terms of this Applicant’s return to that community? I think the answer to that question must – on the state of the evidence – be ‘yes’.
[85] Exhibit 4, p 11, [35].
I accordingly find that the Applicant represents an unresolved and otherwise unknown level of recidivist risk. The only safe conclusion is that his level of recidivist risk is now no different to what it was at the time of his most recent removal from the Australian community back into which he now seeks re-admission.
Sub-paragraph 8.1.2(2)(c)
The Direction also contains a reference to sub-paragraph 8.1.2(2)(c). With reference this specific sub-paragraph, this matter does not involve a ‘refusal to grant a visa to a non-citizen’. It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatory cancellation of the Applicant’s Visa. This specific paragraph is not relevant to the determination of this application.
Conclusion: Primary Consideration 1
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found that the nature and seriousness of the totality of the Applicant’s conduct to date has been, very serious;
(b)I have found that if this Applicant were to re-commit any of his domestically violent conduct, there is little to cavil with the proposition (and finding) that very serious physical, psychological – and potentially catastrophic harm – would be suffered by its victim and others (most notably minor children) that were exposed to it. I have no difficulty in concluding that offending of the type comprising the domestically violent offending, and the harm that would be caused, were such conduct to be repeated, is so serious that any risk of its re-commission would be unacceptable to the Australian community; and
(c)in terms of recidivist risk, I have found that the Applicant represents an unresolved and otherwise unknown level of recidivist risk, and that his risk of re-offending is no different to what it was at the time of his most recent removal from the Australian community back into which he now seeks re-admission.
My analysis of the material leads me to a finding that this Primary Consideration 1 confers a heavy level of weight against revocation of the mandatory cancellation of the Applicant’s Visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
1The 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).
2This 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.
3In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i)     the extent to which the person accepts responsibility for their family violence related conduct;
(ii)    the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)   efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
It is surely beyond argument that the Applicant’s conduct perpetrated in February 2016 and between the period of November 2021 to January 2022 has surely constituted family violence such as to fall within the auspices of this Primary Consideration 2.
Paragraph 8.2(2) of the Direction compels decision makers to look for actual convictions of an offence(s) involving family violence[86] and/or information or evidence from independent and authoritative sources pointing to a non-citizen’s commission of family violence. On the instant facts, the second inquiry is not required. This is because the Applicant’s criminal history contains a significant number of convictions for the commission of acts of family violence. His conduct involved (1) the initial commission of domestically violent conduct; and (2) a very large number of breaches of previously made domestic violence orders against him. On this basis, the provisions of paragraph 8.2(2) of the Direction have been duly met.
[86] Paragraph 8.2(2)(a) of the Direction.
Prior to any application of this paragraph 8.2 to the material, it is necessary to address the two questions it poses. I must determine:
(a)who was a member of the Applicant’s family; and
(b)whether any of the Applicant’s conduct against those family member(s) amounts to family violence. I will now address each question in turn.
Who are members of the Applicant’s family?
With specific reference to the Applicant’s conduct in February 2016 which came before His Honour Magistrate Hogan for sentencing in May 2016, His Honour observed at the commencement of his sentencing remarks that (addressing the Applicant) ‘…you were at your partner’s place. There was an argument. You proceeded to…’.[87] There can be no question that the partner referred to by Magistrate Hogan is one and the same person as the victim of the Applicant’s domestically violent conduct. I am satisfied that the victim the Applicant’s conduct culminating in his sentencing in May 2016 was a member of his family at the time he perpetrated his domestically violent conduct against her in February 2016.
[87] Exhibit 1, p 59, lines 2-3.
With particular reference to the Applicant’s conduct from November 2021 to January 2022, Her Honour Magistrate Balic noted in her sentencing remarks when dealing with the Applicant in April 2022, that ‘…you’ve pleaded guilty before me here today to six offences of contravention domestic violence order against the same woman.’[88] Later in Her Honour’s (Magistrate Balic) sentencing remarks, there is reference to the victim of the Applicant’s domestically violent conduct having ‘a new boyfriend’[89]
[88] Exhibit 1, p 37, lines 1-2.
[89] Exhibit 1, p 37, line 22.
For the purposes of this Primary Consideration 2’s relevance to the instant facts, it makes no difference about whether the subject victim was a current or past spouse of the Applicant at the time he committed the offences against her. If she was a current spouse, s 5G of the Act makes it clear that a de facto spouse of the Applicant does constitute a member of his family.
To whatever extent it may now be said that his conduct between November 2021 to January 2022 was perpetrated against the victim at a time when she was his former de facto spouse, Primary Consideration 2 still has application to that offending. The definition of family violence at paragraph 4(1) of the Direction makes specific reference to ‘a member of the person’s family’. The Direction does not provide a definition for either ‘family’ or ‘family member’.[90] However, there are definitions of these terms which assist in determining the meaning of those terms as they appear in the Direction.
[90] Although, it should be noted the Direction at paragraph 4 provides that “a member of the person’s family for the purposes of the definition of the definition of family violence, includes a person who has, or has, or has had, an intimate personal relationship with the relevant person.”
The Acts Interpretation Act 1901 (Cth) (‘AIA’) is of relevance to the interpretation of the Direction. Section 46 of the AIA provides, in substance, that unless a contrary intention appears, expressions in an instrument have the same meaning as in the Act or instrument which enables or authorises them.[91] As mentioned, s 5G of the Act relevantly provides that the member of a person’s family is, ‘…taken to include […] (a) de facto partner of the person; …’.
[91] See also Jagroop and Minister for Immigration and Border Protection (2016) 241 FCR461 at para [22].

There is no evidence before the Tribunal about the extent to which separation from him may adversely affect any of these children. Likewise, there is little or nothing before me indicating the Applicant has developed or maintained any non-in-person modality of contact with these children.[163] Clearly, other persons already fulfill a parental role in relation to these children and, it is clear from the transcript, that he readily nominated those parental caregivers at the Hearing.[164] We do not know the views of any of these children about how they would feel in the circumstances of prolonged physical separation from the Applicant.[165] There is no evidence before the Tribunal to engage the operative effect of sub-paragraphs 8.4(g) and (h) of the Direction.
[163] Paragraph 8.4(4)(d) of the Direction.
[164] Paragraph 8.4(4)(e) of the Direction.
[165] Paragraph 8.4(4)(f) of the Direction.
Findings about the other relevant minor children
I have sought to apply each of the relevant sub-paragraphs at paragraph 8.4(4) of the Direction to the evidence before me as it relates to these other relevant minor children. I have concluded that their interests slightly militate in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
Conclusion: Primary Consideration 4
The cumulative best interests of the 13 children listed at paragraphs [132] of these Reasons, when analysed through the lens of the relevant sub-paragraphs of 8.4(4) of the Direction, lead me to a finding that this Primary Consideration 4 is of moderate weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[166] The Direction further explains:
‘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 [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[167]
[166] Paragraph 8.5(3) of the Direction.
[167] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:
1The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
This Applicant has breached the Australian community’s expectations by his record of criminal offending in this country, which is evidenced by a significant number of breaches of the Australian criminal law. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
The Direction also states that visa cancellation or refusal, or non-revocation of a 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. 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:[168]
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
[168] Paragraph 8.5(2) of the Direction.
I have earlier found that the Applicant has committed offences that engage the operative effect of the abovementioned sub-paragraph (a) by virtue of his convicted acts of family violence and the abovementioned sub-paragraph (d) by virtue of his two convictions for ‘contravene direction or requirement’ of a government official in the performance of their duties. The commission of these offences means the Australian community expects that the Australian government can and should refuse to set aside the mandatory cancellation of the Applicant’s Visa.
The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4), (5) and (6) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[169]
(c)Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age;[170]
(d)the community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;[171]
(e)the nature of a 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 a visa outcome that is not adverse to the non-citizen;[172] and
(f)if a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.[173]
[169] Paragraph 5.2(4) of the Direction.
[170] Paragraph 5.2(5) of the Direction..
[171] Paragraph 5.2(5) of the Direction.
[172] Paragraph 5.2(6) of the Direction.
[173] Paragraph 5.2(6) of the Direction.
In relation to sub-paragraph (a) of the immediately preceding paragraph [161], the term ‘limited stay visa’ is not defined in the Act. The Applicant in this case held a Class TY Subclass 444 Special Category (Temporary) visa since 20 July 2011[174] until it was cancelled on 19 August 2022.[175] This visa permits a citizen of New Zealand to remain in Australia indefinitely.[176] As the visa permitted the Applicant to remain in Australia without any limit on the duration of his stay, the visa held by the Applicant cannot be classified as a limited stay visa.[177] Therefore this sub-paragraph (a) is not applicable to the Applicant.
[174] Exhibit 1, p 412.
[175] Exhibit 1, p 413.
[176] Regulation 444.511 of the Migration Regulations 1994 (Cth).
[177] Walker v Minister of Home Affairs [2020] FCA 909 at [29].
In relation to sub-paragraph (b) of the abovementioned paragraph [161], the Applicant has resided in Australia from July 2003 when he was 24 years old. He is currently aged 44 years. He has a work history in Australia. He has fathered biological children and has a stepchild in Australia who are respectably aged 17, 15, 11 and eight years old. Whatever participation in, and contribution to, the Australian community he may have made during his time here cannot be safely found to have been ‘short’. Therefore, the Australian community’s tolerance is not lowered by this part of the principles in 5.2(4) of the Act.
In relation to sub-paragraph (c) of the abovementioned paragraph [161], I repeat that the Applicant resided in Australia from the age of 24. He is currently 44 years of age. He has resided in Australia since mid-2003. He has spent nearly half of his life in this country. This means that the Australian community has a higher than usual tolerance of criminal or other serious conduct by this Applicant.
In relation to sub-paragraph (d) of the preceding paragraph [161] I am of the view that the length of time the Applicant has spent here facilitates a raising of the community’s level of tolerance for his offending. I make this finding even though he did not spend his formative years in this country.
In relation to sub-paragraph (e) of the abovementioned paragraph [161], I am not of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his domestically violent offending of the same type and magnitude already committed and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the Applicant’s domestically violent conduct and offending (in particular) and the resulting harm from that conduct (thus far) has been of such a serious magnitude as to dispel any applicable countervailing considerations.
In relation to sub-paragraph (f) of the abovementioned paragraph [161], I have found that specific indicia of the Applicant’s offending is captured by, specifically, sub-paragraphs 8.5(2)(a) and (d) of the Direction. Given that finding, even strong countervailing considerations in his favour may not assist the Applicant. Therefore, my finding must be that the nature of his offending effectively precludes any countervailing considerations working in his favour.
Having regard to the above discussion around sub-paragraphs (a)–(f) (inclusive) referenced in paragraph [161] of these Reasons, I am of the view that the Australian community’s expectations are not modified such that the community does not have a higher than usual tolerance of criminal conduct by the Applicant. Because of the very serious nature of the Applicant’s offending, I am of the view that this Primary Consideration 5 compels a finding that the community expects that the Australian Government can and should refuse to set aside the mandatory cancellation of the Applicant’s Visa.
Conclusion: Primary Consideration 5
Primary Consideration 5 confers a heavy level of weight in favour of this Tribunal not exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequences of the decision
As best as I understood the respective positions of the parties, neither is propounding the application of this Other Consideration (a) to the instant facts. I agree and allocate neutral weight to it.
Other Consideration (b): Extent of impediments if removed
Paragraph 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:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Paragraph 9.2(1)(a): the Applicant is 44 years of age and has not declared any physical health conditions. He has propounded certain mental health symptoms such as bi-polar disorder, intermittent anxiety and panic attacks. While the Applicant may propound these symptoms, it is not supported by any formal and/or independent clinical diagnosis. Importantly, the psychiatrist, Dr Jillian Spencer, opined as recently as January 2023 that the Applicant was experiencing ‘stress[178]’ but that he otherwise displayed ‘…no mood, anxiety or psychotic disorder currently.’[179] The psychologist Mr Hutcheon, as recently as June 2023 noted that the Applicant ‘…is future focused and does not appear to have any mood or anxiety issues.’[180] Further, that the Applicant displayed ‘Normal’ results for depression and stress and a ‘mild’ result for anxiety.[181]
[178] Exhibit 13, p 102 of 156.
[179] Exhibit 13, p 104 of 156.
[180] Exhibit 18, p 3.
[181] Exhibit 18, p 3.
There is evidence before the Tribunal that the Applicant has a current prescription for mirtazapine for anxiety. He has also told clinicians about certain adverse things he experienced earlier in his life. There is little to cavil with the proposition that he would be able to access relevant treatment for these propounded issues in New Zealand.
Paragraph 9.2(1)(b): the evidence has nothing to say about any substantial language or cultural barriers impeding the Applicant’s re-settlement in New Zealand. As previously noted by this Tribunal (differently constituted): ‘New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand.[…].’[182] He is 44 years of age and spent the first 24 years of his life in New Zealand.
[182] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301, [101].
Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and/or economic support available to the Applicant in New Zealand. To the extent he may require medical support for his claimed anxiety and any other issue arising from his adverse treatment as a child, he will be able to access such publicly available medical support to the same extent as other citizens of New Zealand. In terms of economic support in New Zealand, the Tribunal has the evidence of Mr Raph U that speaks to the Applicant’s experience and high level of qualifications scaffolder. It can safely be found that he will be able to find such or similar work in New Zealand. In terms of social support, the Applicant told the Hearing that his father and sister currently reside in New Zealand. He also said he has ‘other family members in New Zealand’ but that he has not seen them in a long time.[183]
[183] Transcript, p 46, lines 4-9.
Findings about impediments
I am of the view that this Other Consideration (b) confers a moderate level of weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant’s Visa.
Other Consideration (c): Impact on victims
Neither party is agitating the relevance of this Other Consideration (c). It is not relevant to the instant determination and should be treated neutrally. I agree.
Other Consideration (d): Impact Australian business interests
Paragraph 9.4(1) compels an assessment of the impact on Australian business interests as a consequence of the Applicant’s removal. This is not an issue propounded by either party. The Respondent contends this consideration is not relevant. I agree and allocate neutral weight to this Other Consideration (d).
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: is of neutral weight;
(b)extent of impediments if removed: is of moderate weight in favour of revocation;
(c)impact on victims: is of neutral weight;
(d)impact on Australian business interests: is of neutral weight.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted previously in these Reasons, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the power afforded by s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: carries a heavy level of weight in favour of affirming the decision under review;
·Primary Consideration 2: carries a heavy level of weight in favour of affirming the decision under review;
·Primary Consideration 3: is of a moderate level of weight in favour of setting aside the decision under review;
·Primary Consideration 4: is of a moderate level of weight in favour of setting aside the decision under review;
·Primary Consideration 5: carries a heavy level of weight in favour of affirming the decision under review;
I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to Primary Considerations 1, 2 and 5 are sufficient to outweigh the combined weights I have allocated to Primary Considerations 3 and 4 and Other Consideration (b).
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding that there is not another reason to revoke the mandatory cancellation of the Applicant’s Visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review made by the delegate of the Respondent.

I certify that the preceding 184 (one hundred and eighty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

............[SGD]..............
Associate
Dated: 19 July 2023

Dates of hearing: 29 and 30 June 2023

Applicant: Self-represented

Solicitor for the Respondent: Ms Cody Allen (Associate)

Sparke Helmore Lawyers
ANNEXURE A

EXHIBIT

DESCRIPTION OF EVIDENCE

DATE OF DOCUMENT

DATE RECEIVED

1

Section 501 G-Documents
(bookmarked G1 – G32, paged 1-444)

Various

10 May 2023

2

Applicant’s SMART Recovery Australia course completion sheet for period December 2022 to January 2023

Undated

7 June 2023

3

Respondent’s Tender Bundle
(bookmarked R1-R4, paged 1-310)

Various

14 June 2023

4

Respondent’s Statement of Facts, Issues and Contentions (paged 1-19)

14 June 2023

14 June 2023

5

Applicant’s Child Support payment statements

17 September 2022

22 June 2023

6

Applicant’s IHMS drug test report

18 May 2023

22 June 2023

7

Letter of diagnosis of Child SK

5 June 2023

22 June 2023

8

Applicant’s letter engagement with QuIHN

16 May 2023

22 June 2023

9

Applicant’s Individual Management Plan Review by Daniel Moore (Detainee Service Officer)

9 May 2023

22 June 2023

10

School ID card of Child SK

Undated

22 June 2023

11

Applicant’s confirmation of allocated therapist and session booking with QuIHN

26 June 2023

26 June 2023

12

Applicant’s participation manual in course- Circuit Breaker

Various

26 June 2023

13

Applicant’s IHMS clinical records

Various

26 June 2023

14

Letter of support from Ms Darleen Taingahue (Applicant’s sister)

25 June 2023

26 June 2023

15

Letter of support from Child DR (Applicant’s son)

26 June 2023

26 June 2023

16

Letter of support from Ms Judith Turfrey (Applicant’s mother)

26 June 2023

26 June 2023

17

Letter of support from Ms Leara Fasavalu (Applicant’s stepchild)

26 June 2023

26 June 2023

18

Report from Greg Hutcheon (Psychologist)

26 June 2023

26 June 2023

19

Applicant’s SMART Recovery Australia course completion sheet for period May 2023 to June 2023

Undated

26 June 2023

20

~~Letter of support titled as from [Child JR](This is a duplicate copy of Exhibit 14 – Letter of support from Ms Darleen Taingahue (Applicant’s sister)~~

~~25 June 2023~~

~~26 June 2023~~

[2023] AATA 2103

19 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Statutory Construction

Remedies

Measure	Pre-treatment	Mid-treatment	Post-treatment
DASS 21 (Depression, Anxiety & Stress Scale)	Not completed	26^th June 2023, Completed	Pending
Depression	Depression Score=1. This is a Normal level.
Anxiety:	Anxiety Score=4. This is a Mild level.
Stress:	Stress Score=4. This is a Normal level.
DSM-V Diagnosis:	Previous hx of substance abuse disorder, query ASD traits

Dates of hearing:	29 and 30 June 2023
Applicant:	Self-represented
Solicitor for the Respondent:	Ms Cody Allen (Associate)
Sparke Helmore Lawyers

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
1	Section 501 G-Documents (bookmarked G1 – G32, paged 1-444)	Various	10 May 2023
2	Applicant’s SMART Recovery Australia course completion sheet for period December 2022 to January 2023	Undated	7 June 2023
3	Respondent’s Tender Bundle (bookmarked R1-R4, paged 1-310)	Various	14 June 2023
4	Respondent’s Statement of Facts, Issues and Contentions (paged 1-19)	14 June 2023	14 June 2023
5	Applicant’s Child Support payment statements	17 September 2022	22 June 2023
6	Applicant’s IHMS drug test report	18 May 2023	22 June 2023
7	Letter of diagnosis of Child SK	5 June 2023	22 June 2023
8	Applicant’s letter engagement with QuIHN	16 May 2023	22 June 2023
9	Applicant’s Individual Management Plan Review by Daniel Moore (Detainee Service Officer)	9 May 2023	22 June 2023
10	School ID card of Child SK	Undated	22 June 2023
11	Applicant’s confirmation of allocated therapist and session booking with QuIHN	26 June 2023	26 June 2023
12	Applicant’s participation manual in course- Circuit Breaker	Various	26 June 2023
13	Applicant’s IHMS clinical records	Various	26 June 2023
14	Letter of support from Ms Darleen Taingahue (Applicant’s sister)	25 June 2023	26 June 2023
15	Letter of support from Child DR (Applicant’s son)	26 June 2023	26 June 2023
16	Letter of support from Ms Judith Turfrey (Applicant’s mother)	26 June 2023	26 June 2023
17	Letter of support from Ms Leara Fasavalu (Applicant’s stepchild)	26 June 2023	26 June 2023
18	Report from Greg Hutcheon (Psychologist)	26 June 2023	26 June 2023
19	Applicant’s SMART Recovery Australia course completion sheet for period May 2023 to June 2023	Undated	26 June 2023
20	~~Letter of support titled as from [Child JR](This is a duplicate copy of Exhibit 14 – Letter of support from Ms Darleen Taingahue (Applicant’s sister)~~	~~25 June 2023~~	~~26 June 2023~~