Saunders and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 419

Saunders and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 419 (6 March 2024)
Division:GENERAL DIVISION
File Number:2023/9536
Re:Samuel Brock Saunders
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member S Burford
Date of decision: 6 March 2024
Date of written reasons: 11 March 2024
Place:Perth

The decision of the delegate of the Respondent dated 13 December 2023 not to revoke the mandatory cancellation of the Applicant’s Five Year Resident Return (Class BB) (Subclass 155) visa is set aside and substituted with a decision that the cancellation of the Applicant’s visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
.....................[Sgd]...........................
Senior Member S Burford
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction No 99 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – family violence – strength, nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – extent of impediments if returned to Canada – legal consequences – Non-Revocation Decision is set aside and substituted
LEGISLATION
Crimes (Sentencing Procedure) Act 1999 (NSW) s 10(a)
Migration Act 1958 (Cth) ss 15, 46(1)(d), 189, 196, 197C, 198, 499(1), 499 (2A), 500(1)(ba), 500(6B), 500(6L), 501, 501(F), 501(E), 501E(2), 501(3A), 501CA, 501CA(3), 501CA(4), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501(6), 501(6)(a), 501(7)(c), 503
Migration Amendment (Aggregate Sentences) Act 2023 (Cth)
CASES
AJL20 v Commonwealth of Australia [2020] FCA 1305
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456; [2022] FCAFC 115
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
LQZW and Minister for Home Affairs (Migration) [2019] AATA 93
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501(1)(8 March 2021)
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501(1) (23 January 2023) – paras
2, 3, 4, 4(1), 5.1, 5.1(4), 5.1(3), 5.2, 5.2(2), 5.2(3), 5.2(5), 6, 7, 8, 8.1(1), 8.1.1, 8.1.1(1)(a), 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii), 8.1.1(1)(a)(iii), 8.1.1(1)(b)(ii), 8.1.1(1)(d), 8.1.1(1)(f), 8.1.1(2)(a), 8.1(2), 8.1.2(1), 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.2(2), 8.2(3), 8.2(3)(c), 8.2(3)(d), 8.3(1), 8.3(2), 8.3(3), 8.4, 8.4(3), 8.4(4), 8.4(4)(a), 8.4(4)(b), 8.4(4)(c), 8.4(4)(d), 8.4(4)(h), 8.4(4)(a)-(e), 8.4(4)(f), 8.4(4)(f)-(h), 8.5(1), 8.5(2), 8.5(2)(a)–(f), 8.5(3), 8.5(4), 9, 9.1, 9.1(3), 9.1.2(3), 9.2, 9.2(1)(a)-(c), 9.3, 9.4
REASONS FOR DECISION
Senior Member S Burford
11 March 2024
The decision in this matter was made and provided to the parties on 6 March 2024 with a note that written reasons would be provided within a reasonable time. These are those written reasons.[1]
THE APPLICATION
[1] See Khalil and Respondent for Home Affairs [2019] FCAFC 151 at [41].

The Applicant seeks review of a decision of a delegate of the Respondent (the Minister) dated 13 December 2023 not to revoke the cancellation of his Five Year Resident Return Class BB (Subclass 155) Visa (the visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act).
The application is made pursuant to s 500(1)(ba) of the Migration Act which allows applications to be made to the Administrative Appeals Tribunal (The Tribunal) for review of decisions of a delegate of the Minister made under s 501 of the Migration Act.
BACKGROUND
The Applicant is a 54-year-old citizen of Canada. He first arrived in Australia on 15 April 1972, at the age of 2, accompanied by his father.[2] The Applicant claims he was unlawfully removed from Canada following the breakdown of his parents’ relationship. The Applicant remained in Australian until around 16 years of age when he says he travelled to the Philippines with his father.[3] He remained in the Philippines for around 5 years before returning to Canada. He was resident in Canada for approximately 10 years before returning to Australia in January 2000 at the age of 30.[4]
[2] R1, G15.
[3] R1, G16.
[4] R1, G16.
The Applicant has departed Australia for short periods twice since that time, in September 2001 and April 2009.[5] He told the Tribunal he could not recall the 2001 trip but thought it would have been to Canada. The 2009 trip was paid for by the Canadian government for the purposes of visiting his son who was in juvenile detention in Canada with a view to returning with him to resettle in Australia. In the end his son decided to remain in Canada where his mother resides in Edmonton, Alberta.[6]
[5] R1, G16.
[6] Transcript page 11.
On 17 February 2023, the Applicant was convicted in the Campbelltown Local Court of New South Whales for ‘Assault Occasioning actual bodily harm (DV), Stalk/intimidate intend fear physical etc harm (domestic) (two counts), Contravene prohibition/restriction in AVO (Domestic) (two counts) and Common assault (DV)’.[7] Upon appeal, on 14 April 2023 the District Court of New South Wales varied the original sentence to an aggregate term of 20 months imprisonment that commenced on 13 August 2022.[8]
[7] R1, G6.
[8] R1, G5.
The Applicant was subject to immigration detention at Yongah Hill Immigration Detention Centre at the time of the hearing.
On 8 May 2023 the Minister cancelled the Applicant’s visa under s 501(3A) of the Migration Act on the basis that the Applicant had a substantial criminal record within the meaning of s 501(6)(a) of the Migration Act and was serving a sentence for imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or territory (the Cancellation Decision). The Applicant was notified of that decision by hand in Glenn Innes Correctional Centre.[9]
[9] R1, G13 pages 106-112.
In the letter notifying him of the cancellation of his visa, the Applicant was invited to make representations to the Minister about revoking the decision. No signed acknowledgement of receipt of that notification was before the Tribunal,[10] however, the Applicant signed the form requesting revocation of the Cancellation Decision on 8 May 2023,[11] which the NSW Department of Communities and Justice sent on the behalf of the Applicant to Department on 17 May 2023.[12]
[10] R1, G13 page 112.
[11] R1, G12 pages 86-101.
[12] R1, G12 page 84.
On 13 December 2023, a delegate of the Minister decided, under s 501CA(4) of the Migration Act, not to revoke the Cancellation Decision (the Non-Revocation Decision).[13] This is the reviewable decision before the Tribunal.
[13] R1, G3 page 9.
The Applicant was notified by hand of the Non-Revocation Decision on 13 December 2023.[14] No signed acknowledgement of receipt of that notification was before the Tribunal,[15] however, the Applicant’s application for review indicates it was given to him on 13 December 2023.[16]
[14] R1, G3 page 9.
[15] R1, G3 page 11.
[16] R1, G2.
The Applicant lodged his application for review of the Non-Revocation Decision on 18 December 2023. The Tribunal is satisfied that the application was lodged within time, pursuant to s 500(6B) of the Migration Act.[17]
[17] R1, G2, page 6.
The Tribunal must hand down a decision on or before 6 March 2024.[18]
[18] Migration Act s 500(6L).
ISSUES
The issues before the Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked.[19]
[19] Migration Act s 501CA(4).
For the reasons below, the Tribunal has decided that the correct and preferable decision is that the Non-Revocation Decision be set aside and substituted with a decision that the Cancellation Decision be revoked.
THE HEARING AND THE EVIDENCE
The hearing was initially scheduled for 20 February 2024, however Tribunal records indicate that during outreach to the parties on 19 February 2024 regarding the availability of witnesses it was evident that while the Applicant had sent documents supporting his case directly to the Tribunal and they had not been served on the Minister. In order to ensure the Applicant’s supporting evidence could be taken into account by the Tribunal the hearing was relisted for 22 February 2024 and copies of the material were provided to the Minister.
The hearing commenced at the Perth Registry on 22 February 2024. The Applicant appeared in person and was not represented. The Minister was represented by Mr Chan, from Sparke Helmore Lawyers. Mr Chan appeared by MS Teams.
At the commencement of the hearing, the Tribunal admitted into evidence the material submitted by the Applicant and the Respondent. When the Tribunal sought confirmation from the Applicant that he had copies of the Minister’s material (Exhibits 1 to 3 listed below) the Applicant indicated he had only received copies of those documents the day prior by courier and had not yet read them. After discussion with the parties the Tribunal determined the hearing should be adjourned and postponed until the following week to allow the Applicant an opportunity to read the tender material (which comprised more than 500 pages of documents).
At that hearing the Applicant also indicated he thought his ex-partner was submitting a statement to the Tribunal, but the Tribunal confirmed none had been received. Prior to adjourning the hearing, the Tribunal invited the Applicant to contact his proposed witness and submit any witness statement from his former partner by close of business that day and provide a copy to the Minister to ensure the Tribunal could take that material into account. No further statements were received prior to the commencement of the adjourned hearing.
The hearing resumed on 27 February 2024 at the Tribunal’s Perth Registry. The following documents were marked as exhibits:
·Letter of support from Ms Acacia Gooding, the Applicant’s adult stepdaughter, dated 25 January 2024 (Exhibit A1);
·Letter of support from Ms Samara Saunders, the Applicant’s 18-year-old daughter, dated 25 January 2024 (Exhibit A2);
·Letter of support from Ms Celine Grivic, the partner of the Applicant’s son Mitchell and the temporary guardian of one of the Applicant’s minor son, Mstr E, dated 25 January 2024 (Exhibit A3);
·G Documents (G1 to G20) consisting of pages 1 to 145 (Exhibit R1);
·Tender Bundle (TB1 to TB7) consisting of pages 1 to 439 (Exhibit R2); and
·Supplementary Tender Bundle (TB8) consisting of pages 439 to 559 (Exhibit R3).
At the hearing, the Applicant made submissions, gave evidence and was cross-examined. The Tribunal also took evidence from Ms Grivic and Ms Saunders who gave evidence via telephone.
The Respondent filed a Statement of Facts, Issues and Contentions on 23 January 2024 and an Amended Statement of Facts, Issues and Contentions on 14 February 2024 prior to the hearing. The Respondent relied on the Amended Statement of Facts, Issues and Contentions (RSFIC).
The Applicant did not file a Statement of Facts, Issues and Contentions. The Tribunal notes that a directions hearing was held on 9 January 2024 to program the matter for hearing during which the Tribunal discussed the matter with the parties. With the agreement of the parties, the Tribunal directed that the Respondent file their RSFIC first to assist the Applicant to understand the points at issue and to prepare submissions and evidence in response. The Tribunal encouraged the Applicant at the directions hearing to look at the issues raised in the delegate’s decision record and to consider whether there was evidence, including from witnesses which might be able to address issues raised in the decision or in the matters listed for consideration in Direction No 99.
The Tribunal was mindful of the Applicant’s lack of representation in the conduct of the proceedings. The Tribunal provided an opportunity at the hearing for the Applicant to respond to matters put by the Respondent in written submissions and in oral closing submissions and to provide answers to questions asked by the Tribunal which were directed at relevant considerations under Direction No 99. The Tribunal considered the Applicant was provided with a fair opportunity to give evidence and present arguments in support of the application and to respond to issues raised by the Respondent.
LEGISLATIVE FRAMEWORK
Migration Act
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(6)For the purposes of this section, a person does not pass the character test if:
a) the person has a substantial criminal record (as defined by
subsection (7)); …
(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
b) the person has been sentenced to a term of imprisonment of
12 months or more; …
(Original emphasis.)
Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain incarcerated persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
Additionally, under s 501(3A) of the Migration Act, the person must be serving a ‘sentence of imprisonment’, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[20] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked. Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the original decision should be revoked.[21]
[20] Migration Act s 501CA(3).
[21] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Direction No 99
The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the original decision should be revoked, reasonably and on a correct understanding of the law.[22] By reason of s 499 (2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
[22] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119].
On 23 January 2023, the Minister made Direction No 99 under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced the previous Direction No 90.[23]
[23] Direction No 99 paras 2-3.
An objective of Direction No 99 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[24] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No 99 where relevant to the decision.[25]
[24] Direction No 99 para 5.1(4).
[25] Direction No 99 para 6.
Paragraph 5.1 of Direction No 99 sets out ‘[o]bjectives’ including para 5.1(3) which provides that:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 99 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on
non-citizens in the expectation that they are, and have been, law-abiding,
will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian Community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With 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)[26] (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
[26] As there is no para 8.55(2) the Tribunal infers this is a reference to 8.5(2).

Informed by the principles set out in para 5.2 of Direction No 99, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case, in deciding ‘whether to revoke the mandatory cancellation of a non-citizen’s visa’.[27]
[27] Direction No 99 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No 99, which includes the Tribunal.
In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[28]
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
[28] Direction No 99 para 8.
The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[29]
(a)       legal consequences of the decision;
(b)       extent of impediments if removed;
(c)       impact on victims; and
(d)       impact on Australian business interests.
[29] Direction No 99 para 9.
Further guidance as to how a decision-maker is to apply the considerations in
Direction No 99 can be found in para 7, which provides that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case,
[30] Migration Act s 501(7)(c).
a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[30]
As noted above, on 17 February 2023, the Applicant was convicted in the Campbelltown Local Court of ‘Assault Occasioning actual bodily harm (DV), Stalk/intimidate intend fear physical etc harm (domestic) (two counts), Contravene prohibition/restriction in AVO (Domestic) (two counts) and Common assault (DV)’. He was initially sentenced in that court to an aggregate term of 26 months imprisonment with a non-parole period of 13 months. That sentenced was reduced on appeal by the District Court of New South Wales on 14 April 2023 with the Applicant receiving a total aggregate sentence of 20 months imprisonment commenced on 13 August 2022 with a non-parole period of 10 months. The Applicant’s appeal against his convictions was dismissed.[31]
[31] R1, G6; R2, pages 437-439.
As the Applicant has been sentenced to a term of imprisonment of 12 months or more, he does not pass the character test by operation of s 501(7)(c) of the Migration Act.[32]
[32] See Migration Amendment (Aggregate Sentences) Act 2023 (Cth) regarding the treatment of aggregate sentences under s 501.
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[33]
[33] See Migration Act s 501CA(4)(b)(i).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No 99, there is another reason why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked.[34]
[34] Migration Act s 501CA(4)(b)(ii).
In his application for review, the Applicant indicated that he sought review of the Delegate’s decision because Australia had been his home for 52 years and he has family here.[35]
[35] R1, G2, page 7.
In his ‘Request for Revocation’ form the Applicant stated that:[36]
I wish to stay in Australia as it is my home. I have 5 kids here and Australia is the only place I know as home lived here all my life all my family is here mother, brother sister. Two of my children have special needs. I don’t believe I am a threat to anyone have always had my children in my care they love me as I love them. Australia has been my home for over 40 years my children need me just as much as I need them. They are counting the days until I come home if I can’t stay in Australia I worried about there well being.
(As in original)
[36] R1, G12, page 88.
In his request for revocation and oral submissions to the Tribunal the Applicant submitted, in summary that:[37]
[37] R1, G12; Transcript, pages 90-102.
·Australia is the only home he has known, and he has lived here for more than 40 years. His kids and friends are here and he wants to stay with them;[38]
·His children need him. His former partner is unable to handle them herself. She also needs his support. He was the children’s carer prior to entering prison and the two youngest have special needs. He has no contact with his son who was the subject of the convictions but they hope to change the orders stopping contact if he remains so he can support his son;[39]
·He stopped drinking 10 months prior to the request for revocation and has no desire to drink again. He has since discovered health issues caused by drinking and he doesn’t want to die. He wants to do more positive activities with his kids. If he doesn’t drink, he won’t reoffend;[40]
·His opportunities to undertake rehabilitation courses in prison have been limited because of his visa status;[41]
·He accepts his behaviour in the past was wrong, particularly when he was drinking, but circumstances were made worse by this relationship with his partner. He was only attempting to parent his son whose behaviours were challenging including being violent and destructive towards the Applicant and his siblings;[42]
·He is no longer in a relationship with his ex-partner so there is no risk of family violence with respect to her;
·Has made a positive contribution through looking after his kids for the past 20 years;[43]
·He has no connections or support in Canada other than an adult son he has limited contact with and an elderly maternal grandmother he only just discovered;[44] and
·The considerations weighing in favour of revoking cancellation of his visa, including the best interests of his minor sons and his ties to Australia through his older children and family, outweigh those against revocation are provide ‘another reason’ why the Cancellation Decision should be revoked.
[38] R1, G12, page 88, 100.
[39] R1, G12, pages 92, 102-103.
[40] R1, G12, pages 97, 99, 103.
[41] R1, G12, page 97.
[42] R1, G12, page 97; Transcript, page 14.
[43] R1, G12 page 99.
[44] Transcript, page 9.
The Minister submitted, in summary, that:
·The Applicant’s offending should be viewed as very serious in particular having regard to his history of increasingly violent offending, including against his former partner and disabled son;[45]
[45] RSFIC, pages 6-11.
·The harm which would be caused were the Applicant to reoffend would be very serious and include serious physical, emotional and psychological harm to members of the Australian community and in particular his family. Further, the claim that the Applicant would not reoffend is unacceptable having regard to the lack of evidence of rehabilitation for long-standing alcohol abuse, the sustained history of his offending, lack of evidence of efforts to address any ongoing psychological issues arising from the Applicant’s personal history, limited remorse shown for his offending, evidence of an assessment of a medium risk of recidivism, repeated breaches of court orders including family violence orders, lack of prosocial supports including stable employment and the fact the Applicant’s pro social network did not act as a protective factor against past offending;[46]
·The Applicant has engaged in family violence offending which has increased in seriousness over time over a 15-year period during which the Applicant has done little to address the factors contributing to the offending;[47]
·The Applicant has lived in Australia for a considerable period including during his formative years and has ties to Australia including through his children, stepchildren, stepmother and siblings. However, there is minimal evidence about these family members and the emotional hardship they will suffer should be given little weight;[48]
·The Applicant committed very serious acts of family violence against his former partner and one son and given a lack of rehabilitation if the Tribunal were to find it is in the best interests of some of the children that the visa cancellation be revoked, lit would not outweigh other primary considerations;[49]
·The Applicant has been convicted of serious and violent crimes and the community expectation would be that he would not hold a visa notwithstanding the length of time he has resided in Australia;[50]
·The Applicant’s circumstances do not raise non-refoulement issues and the legal consequences of the decision weigh neutrally in the Applicant’s circumstances;[51]
·The Applicant lived in Canada between around 20 and 30 years of age and is not unfamiliar with the country. He would not suffer any cultural or language barriers on return there. He is in good physical and mental health and there was no evidence he would not have access to the same services available to other citizens. There is nothing to suggest he would be unable to re-establish himself and maintain basic living standards in Canada;[52]
·Other considerations are neutral; and
·The considerations weighing against revocation outweigh any considerations weighing in favour of revocation.
[46] RSFIC, pages 11-13.
[47] RSFIC, pages 13-15.
[48] RSFIC, page 15.
[49] Transcript, page 80.
[50] RSFIC, page 17.
[51] RSFIC page 17.
[52] RSFIC, page 18.
Protection of the Australian Community
The first primary consideration, para 8.1(1), focuses on the protection of the Australian community. Direction No 99 requires decision-makers to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, the Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[53]
[53] See also Direction No 99 para 8(1).
Paragraph 8.1(2) of Direction No 99 then provides that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Applicant submitted, in summary, that if the Cancellation Decision was revoked, he will not reoffend as he is committed to abstaining from alcohol and providing a better environment for his children.[54]
[54] Transcript, pages 63 and 91.
The Respondent contended that:[55]
·The Applicant’s offences including family violence against women and children and should be viewed very seriously;[56]
·There was an unacceptable risk to the community noting the serious physical and psychological harm which would be caused to vulnerable members of the community if he were to reoffend and the moderate likelihood he would do so having regard the lack of evidence of rehabilitation, lack of prosocial protective factors in the community and his tendency to minimise the seriousness of his offences;[57] and
·The protection of the Australian community weighed heavily against revocation of the Cancellation Decision.
[55] RSFIC pages 5-15.
[56] Transcript page 83.
[57] Transcript page 84.
Nature and seriousness of the conduct
In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, para 8.1.1(1) of Direction No 99 provides that the Tribunal must have regard to:[58]
[58] See also Direction No 99 para 8.1(2)(a).
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i. violent and/or sexual crimes;
ii.crimes of a violent nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i. causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii. crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii. any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv. where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
h) where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Tribunal notes it is required, pursuant to Direction No 99, to take into account a range of factors, including certain conduct which is to be regarded as ‘very serious or ‘serious’. Relevantly, the Tribunal is to have regard to whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children or acts of family violence, without limiting the range of conduct that may be considered to be very serious.
The Applicant’s record of criminal offending in Australia commenced in 2001. A detailed table of his offending history is at Annexure A.
The Applicant has been convicted of a number of offences including:[59]
·Violence or related offences: Common assault (2016 - 2 counts); Destroy or damage property (DV) (2016 – 1 count); Stalk/Intimidate intend fear physical etc harm (domestic) (2016 – 1 count); Stalk/Intimidate intend fear physical etc harm (domestic) (2023 – 2 counts); Common assault (DV) (2023 – 1 count); Assault occasioning actual bodily harm (DV) (2023 – 1 count),
·Driving and traffic related offences: Drive with middle range PCA – 1^st offence (2016 – 1 count).
·Offences involving public officers, police orders and court orders or sentences: Contravene prohibition/restriction in AVO (Domestic) (2008 - 1 count); Restrict officer in execution of duty (2010 – 1 counts); Assault officer in execution of Duty (2010 – 2 counts); Contravene prohibition/restriction in AVO (Domestic) (2015 - 1 count); Contravene prohibition/restriction in AVO (Domestic) (2023 - 2 counts).
·Other offences: Shoplifting (2001 – 1 count).
[59] R1, G4.
The Applicant has received terms of imprisonment, fines, and disqualifications. He has been sentenced to a total of more than 24 months imprisonment, the first period of two months in 2015, the second period of 10 weeks in 2016 and the later 20 months in 2022-2023.[60] There is no information that he has a criminal record outside Australia.
[60] R1, G4 pages 34-35.
As noted above, paragraph 8.1.1(1)(a) of Direction 99 provides that violent crimes, crimes of a violent nature against women or children, and family violence are viewed ‘very seriously’ by the Australian Government and the Australian community.
As noted above, the most serious of the Applicant’s offending was his most recent offences for which he received an aggregate sentence of 20 months imprisonment. The victim of those offences was the Applicant’s son, Mstr K, who was 14 years old at the time of the offences.[61]
[61] R1, G5, page 36.
On 17 February 2023, the Applicant was convicted in the Local Court of New South Wales at Campbelltown of:
·Assault occasioning actual bodily harm (DV)
·Stalk/intimidate intend fear physical etc harm (domestic) (two counts)
·Contravene prohibition/restriction in AVO (Domestic) (two counts)
·Common assault (DV)
The Applicant was also convicted of a further offence of Common assault (DV), for which no penalty was imposed.[62] He was found guilty without proceeding to a conviction with respect to another count of contravening an AVO (Domestic).[63] For the avoidance of doubt the Tribunal treats that as a finding going to conduct and not an offence noting also that the details of the conduct (noted below) were considered not to warrant a conviction.
[62] R1, G6; G10.
[63] Section 10(a) of the Crimes (Sentencing Procedure) Act 1999.
Upon appeal, on 14 April 2023, the District Court of New South Wales at Campbelltown varied the sentence to an aggregate term of 20 months imprisonment, with a non-parole period of 10 months.[64] Although the sentences imposed by the Local Court were reduced on appeal by the District Court, the appeal against the convictions was dismissed.
[64] R1, G4, G5, G6, G10, G11.
The sentencing remarks of the Local Court and the District Court dealing with the appeal indicated that the offences arose from a series of events in 2022. The offending occurred at the Applicant’s home.[65]
[65] R1, G5.
The sentencing remarks of 17 February 2023 indicate that Mstr K, has a complex mental health profile having been diagnosed with Autism Spectrum Disorder (ASD), Oppositional Defiance Disorder (ODD) and Attention Deficit Hyperactivity Disorder (ADHD).[66] The sentencing judge observed that these conditions in addition to being a child rendered him a ‘particularly vulnerable victim’, the District Court noted he had been described as ‘a difficult child’.[67]
[66] G6, page 51; see also Reports of NSW Communities and Justice referring to Mstr K’s diagnosed conditions; for example, R3, pages 466, 484, 495.
[67] R1, G6, page 51.

As noted above, the offences occurred at the Applicant’s home and at the time of the offences two of his children, Mstr K and one or more of his brothers, were living or staying with the Applicant at his home.[68]
[68] R1, G5, pages 36-37. Mstr A is not referred to by name but was the sibling who was 9 years old at the relevant time and was named in the interim AVO issued on 16 August 2022.
On 16 February 2022, the Applicant and Mstr K were setting up an entertainment system for the younger brother when the victim accidentally dropped the gaming console controller which angered the Applicant. The two argued and the Applicant said “I’ll bash you. I’ll stomp on your head” and “I’ll burn the house down with you and your brother in it” and pushed the victim against the wall. Mstr K was not injured in that altercation. The police were not involved at that time and Mstr K contacted his sister and mother.[69]
[69] R1, G6 page 48; G5, page 37.
On 17 February 2022, the Applicant and Mstr K had another argument. The Applicant was noted to have consumed a large amount of alcohol throughout the day. The Applicant and Mstr K argued, and the Applicant called one of the victim’s sisters, saying “Your mum has to come pick up [Mstr K] or I’m going to kill him. I’ll stomp on his head until he’s dead”. The police were called, and the Applicant was found to be ‘highly intoxicated’ and police declined to interview him for a number of hours. When he was eventually interviewed, he denied the allegations.[70] There were witnesses to these events (Samara Saunders and Ms Brooks) and their account of the threats made by the Applicant were consistent with the account provided by Mstr K. The police Facts Sheet indicated those events gave rise to the charges of intimidation and one count of common assault for which the Applicant eventually plead guilty.[71]
[70] R1, G6, page 48.
[71] R2, pages 379-382; R1, G5, page 38; R1, G6 pages 44-45.
The Applicant was placed on an AVO for the protection of Mstr K and Mstr K moved back to live with his mother.[72]
[72] R1, G6, page 48; R2, page 140.
In convicting and initially sentencing the Applicant, the Magistrate considered the objective seriousness of the assault, in the form of pushing Mstr against a wall, was of a low-level of seriousness. However, the court regarded the threats as ‘as serious form of intimidation, particularly to a child’ and considered that offending to be in the mid-range for that type of offending.[73] The District Court did not address these assessments other than to observe that the indicative sentences were mostly appropriate.[74]
[73] R1, G6, page 51.
[74] R1, G5, page 41.
On 25 February 2022, the victim Mstr K came to the Applicant’s home and asked to move back. The sentencing remarks record that the Applicant agreed to this despite knowing it would breach the AVO, although he took steps to inform the police and court about this afterwards. It appears the AVO was withdrawn or amended on 8 March 2022 to remove the contact restriction preventing Mstr K from living at the Applicant’s home.[75] The restrictions relating to assault and threats towards Mstr K remained in place. On 4 March the police attended the Applicant’s home after receiving information that the 17 February 2022 AVO had been breached. This gave rise to a charge for contravening the AVO which the court found was proven but dismissed. The Tribunal does not place any weight on that conduct noting the explanation provided by the Applicant which was accepted by the Court.[76]
[75] R2, pages 134-136 when an interim order was made.
[76] R1, G6, page 49.
On 16 May 2022, there was an argument between the Applicant and Mstr K about a lost cord for the child’s computer, and the Applicant making fun of Mstr K’s friends. Police were called. The parties had calmed down by the time of their arrival and no action was required. However, later that evening the police received a further call about loud yelling and screaming from the house and the police attended the property again. On this occasion they found the front door was detached and the Magistrate found that during an argument the Applicant had picked up the door from where it had been resting against the doorframe and threw it towards Mstr K who was inside the premises. Mstr K caught the door before dropping it to the ground. Mstr K told police he had slapped the Applicant a couple of times in response to the door being thrown at him and made threats towards him which he would not have actioned. The Magistrate noted he was child suffering from the disabilities described above.[77] The District Court noted with respect to those facts that they were ‘certainly an indication at the 14-year-old was not adverse to standing up for himself’.[78]
[77] R1, G6, pages 49-50.
[78] R1, G5, page 39.
Again, on this occasion the Applicant was highly intoxicated and unable to be interviewed. The VRO was amended to include an order that the Applicant not approach or be in the company of Mstr K within 12 hours of drinking.[79] The magistrate observed the Assault was below mid-range and the breach of the VROP was mid-range for seriousness because of the violence and because the Applicant was on bail at the time.[80] The District Court observed that the Assault charge was at ‘the very lower end of objective gravity’.[81]
[79] R2, pages 125-126 (condition 4 referred to at R1, G6, page 51).
[80] R1, G6, page 52; R1, G5, page 40.
[81] R1, G5, page 40.
On 13 August 2022, the Applicant further breached the AVO and committed assault occasioning actual bodily harm. The sentencing remarks indicate that the Applicant had been drinking heavily. He was on bail for the earlier offences and a condition of his bail was not to consume alcohol. This was also a condition of the AVO with respect to being near Mstr K.[82] The Applicant had been observed to be drinking throughout the day. In the evening Mstr K complained about a lack of cheese in the kitchen and the Applicant became angry and verbally abusive. The sentencing remarks record that:[83]
[The Applicant] stood up and moved close to the victim who pushed him away. [The Applicant] then stepped back towards [Mstr K]. He was yelling him and then headbutted him to the bridge of his nose.
The contact caused pain and bleeding. The police were called and found the Applicant to be heavily intoxicated. The Applicant told them he did not know how Mstr K had been hurt.
[82] R1, G6, page 50.
[83] R1, G6, page 50.
The sentencing judge in the Local Court remarked that there was a ‘sad history of continued offending’ by the Applicant including against Mstr K who was a particularly vulnerable victim. On appeal, the District Court noted that that the Applicant’s criminal history was “not a record which would entitle him to any leniency”.[84]
[84] R1, G5, page 41.
The Applicant maintained before the Courts and before the Tribunal that he had been attempting to discipline his son whose behaviours were challenging and who was himself violent.[85] In the Local Court the sentencing judge acknowledged that the Applicant was taking responsibility for his minor son while dealing with his own issues. However, he held that offending while intoxicated was not a mitigating factor.
[85] Transcript, page 44.
As a result of the convictions, an AVO was put in place for the protection of Mstr K for a period of 5 years (the AVO with respect to Mstr A who had been present in the house during the threat to burn the house down was removed).
As noted in the Local Court, and detailed in Attachment A, the Applicant has a number of offences prior to the February 2022 convictions. The majority of these offences were of a similar nature to his most recent convictions including for common assault and breaches of family violence restraining orders, though Mstr K was not a victim of the prior offences.
On 14 December 2015, the Applicant was convicted in the Local Court of New South Wales at Port Kembla of Contravene prohibition/restriction in AVO (Domestic). He was sentenced to two months imprisonment for that offence.[86] The sentencing remarks relating to that offence record that the Applicant breached a condition of his AVO which prevented him being in the company of Ms Brooks (his then partner) for 12 hours after consuming alcohol.[87] The circumstances involved the Applicant consuming alcohol at home and verbally abusing his partner. The sentencing judge noted that the AVO was made for the protection of Ms Brooks noting to the Applicant that ‘when you have alcohol you behave badly’.[88] The sentencing judge noted that the Applicant was ‘no stranger’ to AVOs and it was expected that he was aware of the consequences breaching such orders.[89]
[86] R1, G4, G8, G11.
[87] R1, G8.
[88] R1, G8, page 72.
[89] R1, G8, page 73.
In the end the Applicant served that sentence largely concurrently with a second group of offences for which was convicted in on 11 January 2016, in the Local Court of New South Wales at Albion Park Local Court. On that occasion the Applicant was convicted of:[90]
·Common assault (DV)
·Destroy or damage property (DV)
·Stalk/intimidate intend fear physical etc harm (personal)
·Drive with middle range PCA5 1st offence
[90] R1, G7.
For the common assault and destroy or damage property offences he was sentenced to 10 weeks imprisonment to be served concurrently. Those offences occurred in July 2015.[91] The victim of those offences was Ms Brooks. The offences arose form an incident at the Applicant’s home. Ms Brooks and their 5 children were home, along with Mitchell and Alinka Gooding who were both young adults.[92] Ms Brooks was on the bed with the youngest two children when the Applicant entered and began arguing with Ms Brooks. He hit her to the right side of the head and then got on top of her and tried to hold her down. The victim and Mitchell got the Applicant off the victim and pushed him out to the bedroom. The Applicant punched two holes in the wall. As the victim tried to push the Applicant towards the front door, he grabbed her around the throat area. According to the police facts sheet, the contents of which the Applicant accepted when put to him.[93] The Tribunal notes the damage property conviction appears to arise from the punching the wall. The sentencing remarks do not identify which act constituted the assault thought there is reference to offender who ‘hit women’.
[91] R2, pages 173-175.
[92] R2, page 174.
[93] Transcript, pages 27-28.
The sentencing judge observed that the assault was a serious offence, noting also that the courts would not be lenient towards offenders who commit domestic violence.[94] The sentencing judge considered that there was no real alternative but to impose a term of imprisonment for those offences.
[94] R1, G7, page 67.
The stalk/intimidate offence for which the Applicant was placed on a s 9 good behaviour bond for 12 months involved the Applicant and Ms Brooks being convicted for yelling and swearing at a group of five boys aged around 12 years old who had been following their nine-year-old daughter for approximately one month. The sentencing judge accepted it was hard to ‘keep a lid on things’ when it was your own children and noted ‘there is probably two sides to every story’ but noted that it was ‘behaviour that cannot be condoned’.[95]
[95] R1, G7, page 62.
Prior to these offences, the Applicant had been convicted on 18 September 2008 of Contravene prohibition/restriction in AVO (Domestic), for which he was placed on a s 9 good behaviour bond for two years.[96] The New South Wales Police Statement of Facts indicated that at the time of this offence the Applicant was the subject of the AVO until November 2008 after allegedly attempting to strangle his female partner in November 2006.[97] The Tribunal notes while the Statement of Facts indicates the Applicant was charged in relation to that event there is no record of any conviction for a 2006 offence. The Statement of Facts recorded that around 5pm on 20 August 2008, the Applicant returned home after spending the afternoon at a local pub. He commenced yelling at the victim, saying ‘You’re a slut, you’re a whore’ as he came up to the victim’s face, which caused her to feel intimidated and fearful that he would physically harm her. The victim’s father walked the Applicant outside to calm down, then the victim locked the front door. The Applicant proceeded to bang and kick the front door, yelling out ‘I’ll kill you if you try to stop me seeing the kids’ and ‘I’ll fucking burn the house down if you do’. That evening the police arrived and the applicant was verbally aggressive towards them. The police entered the property and spoke to the victim, who was visibly upset and crying uncontrollably. These officers observed two young children present, who were ‘visibly shaken’.
[96] R1, G4.
[97] R1, G9.
A copy of the sentencing remarks for this offence were not before the Tribunal. When the Statement of Facts was put to the Applicant at the hearing, he said he couldn’t remember anything about the incident. However, he accepted he was intoxicated at the time and that the events may have occurred in the manner recorded in the police facts.[98] Given the Applicant’s admission to having been intoxicated and the fact he was convicted of the ensuing offences, the Tribunal accepts the Statement of Facts as an accurate record of the circumstances of the offences.
[98] Transcript, page 33.
The Applicant also has several convictions for offences which are not family violence related. This includes the driving while intoxicated conviction from 11 January 2016, for which he received a fine and disqualification. The sentencing judge noted the offence was serious and that with the blood alcohol reading ‘at the higher end’ of mid-range the Applicant was about 20 times more likely to have an accident noting however that it was not suggested he had been driving in any way other than what was expected.[99]
[99] R1, G7, page 69.
In 2010 the Applicant was convicted on in the Local Court of New South Wales of two counts of Assault officer in execution of duty, and one count of Resist officer in execution of duty. He was placed on a s 9 good behaviour bond for two years for the Assault officer offences, including a requirement to ‘obey all reasonable directions for counselling, educational development or drug and alcohol counselling’.[100] He was fined $500 for the Resist officer offence. The Statement of Facts indicates that the applicant was intoxicated at the time of the offences and that police had been called to an address where the Applicant, Ms Brooks and a member of her family were, and a ‘domestic incident’ had been reported. Ms Brooks had called police because the Applicant was intoxicated and had tried to take his children in the car. During the police attendance he verbally abused Ms Brooks and when police intervened, he pushed and attempted to strike several officers. He also resisted being handcuffed.
[100] R1, G4; R2, pages 197-198.
A copy of the sentencing remarks for this offence were not before the Tribunal. When the Statement of Facts was put to the Applicant at the hearing, he said he couldn’t remember the events. However, he accepted he was intoxicated at the time and that the events may have occurred in the manner recorded in the police facts.[101] As with the above offences, given the Applicant’s admission to having been intoxicated and the fact he was convicted of the ensuing offences, the Tribunal accepts the Statement of Facts as an accurate record of the circumstances of the offences.
[101] Transcript, page 32.
The Applicant also had one conviction for shoplifting in 2000 for which he received a fine.[102] Having regard to the information regarding that offence and the fact the Applicant has no further stealing or related offending recorded the Tribunal considers that offence to be minor.
[102] R2, page 189.
In the Tribunal’s view the nature of the Applicant’s 2022 offences were very serious. As noted above, applying Direction No 99, violent crimes, crimes of a violent nature against women or children, and family violence are viewed very seriously.[103] These were offences where the victim was the minor child of the Applicant. Further he was a child with special needs evidenced in his diagnosis with ASD, ODD and ADHD. Offending against a child, particularly one who is in the care of the perpetrator must be regarded as serious, notwithstanding the challenges presented by that child’s behaviours. The seriousness of the offences is reflected in the sentencing remarks of the Local and District Courts, noting the sentencing judge’s remarks that the offending ‘crossed the threshold of custodial sentence being the only appropriate sentence’. The Tribunal notes that while the sentence was reduced on appeal, the sentence remained a custodial one of 20 months aggregate.
[103] Paragraph 8.1.1(1)(a) of Direction 99.
The Respondent contended that the seriousness of the Applicant’s offending outside the scope of paragraphs 8.1.1(1)(a)(i) and (iii) was reflected in the imposition of a total of almost two years imprisonment for offending. The Tribunal assumes these submissions are intended to refer to paragraphs 8.1.1(1)(a)(ii) and (iii).[104] The Tribunal considers that the majority of the Applicant’s offending would fall within the scope of paragraphs 8.1.1(1)(a)(ii) and (iii) and it is not clear on what basis the Respondent calculated the period for offences falling outside those paragraphs. However, the Tribunal accepts that the fact the Applicant has been sentenced to terms of imprisonment on two separate occasions reflects the serious nature of his conduct and offending.
[104] See paragraph 8.1.1(1) of Direction No 99.
Additionally, having regard to other considerations arising under Direction No 99, the Applicant’s criminal offending includes acts of violence against police in the performance of their duties.[105] While the circumstances of those offences might be regarded as being at the lower end of the spectrum, offences of violence against officers executing their duties is serious and the Tribunal considers the circumstances of these offences should be regarded as serious.
[105] Paragraph 8.1.1(1)(b)(ii).
The Respondent contended that there has been a general trend of increasing seriousness of the Applicant’s offending, and he his offending should be considered to be frequent noting he had committed 22 offences over a 21-year period.[106] The Tribunal considers that the Applicant’s offending does reflect increasing seriousness, noting the most recent offences were against a minor child in his care and reflect a history of repeated failures to abide by the terms of VROs put in place for the protection of his family members. This contributes to the overall assessment of his offending as serious. However, noting the District Court’s observation that the Applicant’s criminal history was ‘not a lengthy one’, the Tribunal does not consider that the frequency of the Applicant’s offending contributes significantly to the overall assessment of the seriousness of his offending.
[106] Paragraph 8.1.1(1)(d) of Direction 99.
However, the Tribunal notes the Applicant repeatedly offended while reportedly intoxicated yet while acknowledging the role of alcohol in his offending on prior occasions he continued to consume alcohol including in the presence of his partner and children and in contravention of Court issued orders for the protection of his family members. The Tribunal considers that repeated conduct reflects adversely on the Applicant and contributes to the overall assessment of his conduct and offending as serious.
The Tribunal must also consider whether the Applicant provided false or misleading information to the Department, including by not disclosing his prior criminal offending.[107] In written submissions, the Respondent drew the Tribunal’s attention to a copy of the Applicant’s passenger entry card where, on arrival in Australia in April 2009 he declared that he had no criminal convictions.[108] The Applicant had been invited to comment on this material prior to the Non-Revocation Decision being made.[109]
[107] Direction No 99 para 8.1.1(1)(f).
[108] R1, G17.
[109] R1, G18.

The passenger movement card included a question as follows:
If you are NOT an Australian citizen:
…
Do you have any criminal conviction/s?
(Original emphasis.)
It invites the declarant to tick ‘Yes’ or ‘No’. The Applicant placed a cross next to the answer ‘No’, notwithstanding at this point it appears he had one recorded conviction in Australia – his 2001 conviction for shoplifting for which he received a $200 fine in Hornsby Local Court.[110]
[110] R1, G4.
The form includes the following declaration which the Applicant signed:[111]
The information I have given is true, correct and complete. I understand failure to answer any questions may have serious consequences.
[111] R1, G17.
In his responses to the delegate, the Applicant stated that:[112]
I was gone for 2 weeks got into no trouble so I checked no to criminal record as you new all my record before I left the country.
(As in original)
[112] R1, G19.
The Tribunal notes this issue was not raised by the Respondent at the hearing in submissions or in cross examination of the Applicant. Having regard to the evidence, the relatively minor nature of that offence and the Applicant’s explanation for the incorrect or misleading declaration made on his passenger card, the Tribunal finds that this factor does not add to the overall assessment of the Applicant’s conduct and offending.
With respect to the family violence related offending the Tribunal notes that, without diminishing the seriousness nature of that type of offending, the specific instances of the Applicant’s offending were not at the higher end of seriousness for offending of this type. As noted in the District Court remarks on the appeal the 2022 offending arose in the context of challenging behaviours from Mstr K.[113] While this does not excuse the offending it provides a context for the offences which the court considered relevant to the assessing the objective gravity of the offences. Further the record of the VRO’s indicate an environment in which violent or threatening behaviour was engaged in by several members of the family, including by two of the teenage boys. Whilst this does not excuse the Applicant’s offences, the District Court notes it was a matter of some significance in relation to the objective gravity of the 2022 offences.[114]
[113] R2, G5, pages 39-40.
[114] R1, G5, pages 39-40.
Overall, the Tribunal finds the Applicant has engaged in a range of offending which, applying Direction No 99, is serious or very serious. He has a lengthy record going back to 2000 and has committed repeated offences of violence against a domestic partner and a dependent child. His offences have escalated in seriousness with his most recent offending. He repeatedly offended while intoxicated.
Taking the Applicant’s record as a whole, the Tribunal considers the Applicant’s offending and conduct to be serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community (including individuals, groups or institutions) should the Applicant commit further offences. In considering the need to protect the Australian community from harm, paragraph 8.1.2(1) of Direction No 99 requires the Tribunal to 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. It directs that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[115]
[115] Direction No 99 para 8.1.2(1).
Paragraph 8.1.2(2) relevantly provides that in assessing the risk that may be posed by the non-citizen to the Australian community, the Tribunal must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or 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 noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[116] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[117]
[116] Direction No 99 para 8.1.2(2)(a).
[117] Direction No 99 para 8.1.2(2)(b).
There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[118]
[118] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, at [41] per Kenny J.
The Applicant contends that he is not a risk to the community and will not reoffend. He contended (in summary) that he did not present a risk of reoffending because:
·His offending was related to abuse of alcohol and that he had stopped consuming alcohol since he entered prison in 2021;
·He did not want to resume consuming alcohol and was now aware of the health risks having been diagnosed with conditions caused by his use of alcohol;
·He was no longer in a relationship with Ms Brooks and as a result there was no longer a risk of offending against her; and
·He wanted to be there for his children and would not reoffend.
The Minister submitted (in summary) that:
·The nature of the harm that would be caused to the Australian community if the Applicant were to reoffend is very serious with the potential to cause serious physical, emotional and psychological injury to members of the Australian community, particularly his family;[119]
·The risk of re-offending remains unacceptable having regard to:
oA lack of evidence rehabilitation from the Applicant’s longstanding alcohol abuse noting his abstinence so far has been in the controlled environment of prison and immigration detention. As such the Tribunal should not be confident that he will abstain from alcohol use upon release.
oThe sustained pattern of offending despite sentences of imprisonment, good behaviour bonds and fines.
oThe lack of evidence of any efforts to address any psychological issues arising from the Applicant’s claimed history of abuse and disadvantage.
oThe limited remorse demonstrated by the Applicant and the tendency to blame his victims.
oThe Level of Service Inventory – Revised actuarial assessment that the Applicant presents a medium risk of recidivism.
oRepeated breaches of apprehended violence orders showing a disregard for the Court’s orders and the unacceptably high risk of re-offending.
oThe lack of stable employment as a pro-social support and the fact the Applicant is relying on a limited support network which did not prevent him from committing crimes in the past.[120]
[119] RSFIC, page 11.
[120] Citing LQZW and Minister for Home Affairs (Migration) [2019] AATA 93 at [93].
Nature of the harm
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[121]
[121] Direction No 99 para 8.1.2(2)(a).
The Applicant has engaged in repeated instances of family violence against his former partner and child including breaching family violence orders. The Local Court noted in sentencing the Applicant to the 2016 offences the public focus on domestic violence offending and the lack of tolerance for such offending.[122] In the Tribunal’s view this reflects the widespread harm which is caused by such offending including serious physical and psychological harm to victims and to family members who witness such harm or must deal with its effects on other family members. The Tribunal considers that were the Applicant to reoffend against a current or future partner or one of his children, very serious psychological and physical harm would result.
[122] R1, G7.
The Tribunal also considers the cumulative harm caused by such offending to be serious noting that further repeated breaches of court orders require the intervention of authorities.
The Applicant has also offended against police. Such offending not only impedes the work of the police in protecting the community from harm but places officers at risk of physical and emotional harm themselves. Were the Applicant to reoffend against police the harm which would be caused is serious.
The Applicant has also committed a driving offence related to the consumption of alcohol. If the Applicant was to commit further driving offences of driving under the influence, the consequences would be potentially serious. The Tribunal notes that serious harm, such as injury or death, can be inflicted on road users as a result of such offences. Were the Applicant to reoffend in a similar manner in the future, members of the public would suffer serious harm as a result.
The Tribunal is satisfied that, overall, the harm which would be caused to the community were the Applicant to offend in a similar manner, through violent offending against a partner or child would be very serious.
Likelihood of the non-citizen engaging in further criminal or serious conduct
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[123]
[123] Direction No 99 para 8.1.2(2)(b).
As noted earlier, the Respondent contends that there remains an unacceptable risk of the Applicant reoffending.[124]
[124] RSFIC, pages 12-13.
The Applicant contends there is no risk he will reoffend.[125] He stated that:[126]
I don’t plan on hurting anybody, so I’d like to say there is no risk. And I’ve learned a lot in the last two years.
…
I’ve learned now to not – like, I haven’t been in any arguments in jail or detention. I get along with everybody. My whole – demeanour, is that the word – like, has changed.
[125] Transcript page 49.
[126] Transcript, page 92.
When asked in cross examination why the community should be confident he would not reoffend the Applicant stated that: [127]
Well, the truth of the matter is I found out what’s wrong with me and I want to keep healthy. That’s the bottom line now. Like, before, I was – didn’t have a care in the world about anything. I thought I was invincible. I’m finding out I’m not. I want to become invincible and live that little bit extra.
[127] Transcript, page 56.
The Applicant did not provide any evidence of having completed or undertaken a range of educational and rehabilitation programs. He contended that he had not been eligible for rehabilitation programs due to the length of his sentence and his visa status in prions.[128] There were references to some program interventions in the material produced under summons including:
·Completion of ‘Nexus Stream 3’ on 5 June 2023. NSW Department of Corrective Services records note that this included compulsory session for ‘Family and Relationships, Recognition, and next steps’;[129]
·Attendance at 2 weeks of appointments with the South Eastern Sydney (NSW Health) Drug and Alcohol Community Adult Team in February 2010, noting that:[130]
Samuel has acknowledged his issues with alcohol abuse and has demonstrated a willingness to address them and also to addressing the consequences to his alcohol-related behaviours.
To this end, Samuel presents as determined to continue with drug and alcohol treatment through counselling and also attendance at therapeutic groups. He has self-referred for attendance at ‘Taking Responsibility Group’ for men with Relationships Australia Family Safety Program. Samuel has also indicated a willingness to attend Drug and Alcohol Rehabilitation Program which he was to actively self-refer as a priority’.
[128] Transcript, pages 62, 94.
[129] R2, page 40.
[130] R2, page 200.
The Tribunal notes the Applicant did not recall undertaking this program and there was no evidence any of the other programs mentioned had been undertaken by him.[131] He also accepted when it was put to him in cross-examination that that previous program or programs had not been effective in curbing his use of alcohol. However, the maintained that this was ‘because I wasn’t caring about myself or anything’. He maintained that:[132]
Now I’ve been told these issues of my body, I have taken responsibility of trying to get back to normal, and that means no drinking.
[131] Transcript, pages 46-47.
[132] Transcript, page 47.
When questioned about whether he had undertaken any programs of counselling in detention he told the Tribunal that he put his name down for courses in detention and was offered a course two weeks prior for anger management ‘and whatever’ but he was now ‘reading whether I have to do it or what they would like me to do’.[133] He told the Tribunal he didn’t want to go to AA (Alcoholics Anonymous) because:[134]
APPLICANT: I’m scared of the fact that if I go to AA I’ll talk about alcohol, and it will re-bring it back to the surface. I’m just trying to avoid it at all costs. So far, it’s working. Well, incarceration is working no drinking… Well I guess that’s one of the challenges, isn’t it?
RESPONDENT: When you’re in incarceration or in a controlled environment - - -?
APPLICANT: ---It’s a lot easier to give it up.
[133] Transcript, page 62.
[134] Transcript, page 62.
The material before the Tribunal, including the Applicant’s evidence, identified his past history of abuse as a child as a reason for his reliance on alcohol. When asked if he had undertaken any counselling for the trauma he had identified, he stated that he had counselling in the past, but they told him he should have enjoyed the abuse enjoyed the abuse and he disengaged from counselling, it was not clear when this was. He said since then he has ‘just put it all under the drinking label. Drink and forget’.[135]
[135] Transcript, page 63.
The Tribunal explored with the Applicant how he planned to abstain from drinking in the community and he said, ‘not buying it to start with’. He said he wanted to do prosocial activities with his children like fishing.[136]
[136] Transcript, page 63.
The Applicant identified that he considered he was an alcoholic and that drinking was the reason for his offending.[137] The evidence was that he had commenced drinking at around 5 years old and was regularly accessing and consuming alcohol from his early teens.[138]
[137] Transcript, page 63.
[138] Transcript, pages 44-45.
The Tribunal attempted to explore with the Applicant his understanding of the reasons for his excessive consumption of alcohol and whether he had a plan to deal with the underlying causes of his reliance on alcohol in the past. When asked what he had done to address those issues the Applicant stated:[139]
Well dad’s dead now, so I don’t have as much anger towards him. And I’ll admit, I’ve had these where I’ve just – things haven’t gone my way – the way I would have liked them. (Indistinct) dwindled on the past, which has brought up the emotion, ‘Ah shit, why did you start thinking about it?’ And then I’ve had a drink. And it started from there. And now I’ve spoken to a lawyer, I’m going for a procedure for the abuse that happened. I’m speaking – he wants me to speak to a counsellor. They’ve offered me the counsellors at Villawood – not Villawood – Yongah - - -
….
So I’ve put my name down for that. Like whatever help I can get now. I’m at this stage in life – which should have been a long time ago – that I’ve accepted I need it.
[139] Transcript, pages 63-64.
The Tribunal asked if the Applicant had sought to see counsellors in the approximately 8 months he had been at Yongah Hill Immigration Detention Centre:[140]
[140] Transcript, page 64.
TRIBUNAL: And have you sought to see the counsellors in that time?

APPLICANT: I’ve tried to see them. I’ve spoken to someone – I’ve just spoken to generally the nurses. Like the people that are in the clinic.
TRIBUNAL: Yes?
APPLICANT: They didn’t have the counsellors until – I think it was three weeks ago that they brought out the piece of paper and went down to apply for it. And I put it on hold until after my meeting here to find out. Because if – if you guys say no, then I’m – because of my children I’m going to try to fight it to the next level.
TRIBUNAL: Yes?
APPLCIANT: So I’ve got my name in for counselling sessions if I get rejected, so I didn’t waste anybody’s – who needs it more than I do at the moment to try and get out. I’ve left it for them for the spot, because they’re guaranteed a residence there, if that makes sense.
The Tribunal was concerned that while the Applicant’s commitment to not consuming alcohol was genuine, he lacked insight into the difficulties he might face maintaining that commitment in the community without professional support and the risk that he may commit further offences as a result. Indeed, the Applicant conceded in cross examination that he may consume alcohol socially when he returns to the community. The evidence in relation to this issue was reflected in the following exchange where the Applicant was taken to NSW Department of Corrections ‘Risk Mitigation Plan’ which records Alcohol as a risk factor for the Applicant under ‘General risk of reoffending’.[141]
RESPONDENT: At the bottom of page 3, Mr Saunders, there’s a table that has ‘Risk factors: Alcohol’. Do you see that?
APPLICANT: -‘Alcohol’, yes. Yes, I read that, and it was – yes.
RESPONDENT: This particular officer, who is Lee Bush, as I understand it, or someone related to Ms Bush – says – records this: ‘Samuel’s offences of DV’ – domestic violence – ‘were committed while under the influence of alcohol. Samuel acknowledges he has had a lifelong problem with alcohol, and although he currently doesn’t – he doesn’t currently crave it custody, believes he may return to the habit once released’. Did you say that to the officer (indistinct)?
APPICANT: He asked me – he asked me if – he asked me if I would drink, and I said, ‘I might have one, I don't know, but I don’t plan to go out and create trouble’. But, like, when he asked me that, I couldn’t say, like, ‘I am never going to drink again’. I was trying to be honest with him and say, ‘I may have a drink again’.
RESPONDENT: Just so I understand your evidence, if you’re returned to the community, you wouldn’t completely abstain from alcohol?
APPLICANT: I would try to, but I can’t – I would try to, but I can’t (indistinct). If I’m out and something’s happening and somebody offers me a drink, say, five years down the road or even five months down the road, I might have a drink with him, yes. I can’t say for sure. And I’m not going to lie to you that, ‘Okay, two years I haven’t had a drink. I’m never going to have a drink again in my life’. I can’t say that, because somewhere down the line things might change and somebody might offer me a drink and I might have a drink. But I’m not planning to get drunk and create dramas is what I’m saying. I might have a social drink with somebody somewhere in – down the road.
RESPONDENT: Don’t you think that someone with your history of alcohol abuse that having a drink, even socially, is risky and (indistinct) - - -?
APPLICANT: It’s not good. It’s not good. That said, I just said I may have one down the road, and you’re already stating, ‘Well, don’t you know that it’s bad for you?’ I know it’s bad, but I can’t guarantee 100 per cent five years down the road, somebody offers me a drink, ‘Okay, I’ve been sober for seven years. Okay, what’s one drink going to do to hurt me?’ I might fall of the wagon and have a drink, yes. You asked me to be honest. I’m trying to be honest, and this is where it gets me; in more trouble. I could’ve lied back then and said, ‘I’ll never drink again for the rest of my life’. And then if I drink, I’m a liar, so it’s best to be honest and say, ‘I may have a drink in some point in life’, and that’s making me out to be the bad guy because I can’t say, ‘No. Guaranteed. I’m never going to touch a drop again’. I’m going to try not to drink. I don’t have the urge to drink, and I thank vegemite for that.
[141] R2, page 3; Transcript pages 47-48.

The Applicant later explained that the reference to Vegemite related to trying an alcohol brew made from Vegemite in prison which he had no taste for and did not consume.[142]
[142] Transcript, page 62.
While the Tribunal acknowledges the Applicant’s period of sobriety in the relatively controlled environment to prison and detention and his recognition of the health effects of his past alcohol consumption, the Tribunal was concerned that the Applicant’s sobriety and commitment to not reoffending are untested in the community. Overall, the Tribunal had significant concerns over the Applicant’s insight into the underlying causes of his offending, his lack of a clear plan for treatment or management of his acknowledged alcoholism in the community and his lack of insight into the supports he may need to address any underlying mental health issues associated with his claimed past harm which he cited as a reason for his long history of alcohol consumption. Given the strong correlation between consumption of alcohol and the Applicant’s offending history (where records indicate the Applicant was intoxicated at the time of almost every offence bar the shoplifting incident and the 2016 Stalk/ Intimate Offence where Ms Brooks was his co-accused). The lack of any recent treatment or any future rehabilitation plan for alcohol consumption significantly increases the likelihood of further offending.
Further adding to these concerns was the fact the Applicant is relying on the same supports in the community which have been insufficient in the past to curb his reliance on alcohol and to prevent his offending. Indeed, the Applicant has offended against members of his family who he counts as his prosocial supports. The Applicant identified his children, sister and stepmother as his prosocial network in Australia and while there was evidence from his family members demonstrating their support for the Applicant, those supports have been present in the past. While the Tribunal does not doubt the Applicant loves his family and is close to them, those relationships have been insufficient in the past to prevent him offending.
In addition to concerns regarding the Applicant’s plans for refraining from alcohol use in the community, the Respondent contended that the Applicant’s minimisation of his offending presented a risk in terms of the likelihood he may reoffend. In the Tribunal’s view the Applicant’s evidence did indicate a tendency to minimise the seriousness of his offending. This is consistent with sentencing remarks and risk assessment and parole material before the Tribunal. In relation to his offences against Mstr K, the Applicant maintained he was just attempting to parent his son under difficult circumstances. With respect to offending against Ms Brooks he claimed not to remember the offences or to have plead guilty to avoid issues, noting that Ms Brooks would claim to be a victim of violence to gain compensation monies.[143]
[143] Transcript, page 51.
The Tribunal accepts on the evidence that Mstr K’s behaviours may be challenging. This was reflected in sentencing remarks and in the issuing of VRO’s against Mstr K for the protection of the Applicant in the past as mentioned above. However, as the sentencing judge noted, Mstr K is a child in the Applicant’s care and is entitled to be protected in his home. His diagnosed conditions render him vulnerable and the Applicant’s resort to violence to deal with his behaviour was not acceptable.
Further, the Tribunal notes Mstr E suffers similar diagnosed conditions, and the evidence suggested his behaviours are similarly challenging. In the Tribunal’s view the Applicant’s lack of programmatic interventions both with respect to alcohol and family violence, including parenting strategies, presents a risk that the Applicant will repeat past behaviours when subject to the same stressors of challenging behaviour from his sons, and this will be exacerbated by their particular special needs. When this was put to the Applicant, he acknowledged he may face parenting challenges in the future but maintained that it was different now because he didn’t plan to drink anymore.[144] As noted above, while that intention is admirable the Tribunal is concerned given the failure of past efforts at sobriety, rehabilitation and the lack of a plan for maintaining sobriety in the community beyond not purchasing alcohol is insufficient to mitigate the risk of further offending, including against his family members.
133.The Respondent drew the Tribunal and the Applicant’s attention to material recording the Applicant’s risk assessment by NSW Corrective Services in May 2023.[145] According to that material the Applicant was assessed to present a ‘medium’ risk of reoffending.[146] This appears to have been completed in the context of the ‘Risk mitigation plan’ in the context of statutory parole which was included in the material. That plan identified the Applicant’s risk factors as:[147]
·Alcohol - acknowledged life-long problem with alcohol and believe he may return to the habit once released;
·Domestic violence – minimisation of the incident against his son and denial of threats against his son; and
·Attitudes – minimising the incident leading to his convictions as him just trying to parent his children.
[144] Transcript, page 62.
[145] R2, page 60.
[146] R2, pages 60-62.
[147] R2, pages 3-4.
If the Applicant is released, the material indicates the Applicant will be subject to parole conditions for a short period until 12 April 2024. The condition of his parole include supervision and participation in programs as required. This provides a protective factor against reoffending albeit it limited in time. There is also no information before the Tribunal as to whether program participation would be required or what the nature of such programs would be, noting in particular the short period remaining before parole expires.
Having considered all evidence of the Applicant’s circumstances, the Tribunal considers the Applicant’s overall likelihood of reoffending to be medium/ moderate range. Given the significant risk of harm from family violence offences the Tribunal regards that such a likelihood is not insignificant in terms of the risk to the community and considers this weighs against the Applicant. If the Applicant does engage in offending consistent with his previous offending, significant harm would be caused to the community and in particular, the Applicant’s family members.
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that this primary consideration weighs strongly against revocation of the Cancellation Decision.
Family violence committed by the non-citizen
Paragraph 8.2 of Direction No 99 provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
Paragraph 4(1) defines ‘family violence’ to mean:[148]
[148] Direction No 99, para 4(1).
violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples          of behaviour that may constitute family violence include:
a)    an assault; or
b)    a sexual assault or other sexually abusive behaviour; or
c)    stalking; or
d)    repeated derogatory taunts; or
e)    intentionally damaging or destroying property; or
f)     intentionally causing death or injury to an animal; or
g)    unreasonably denying the family member the financial                 autonomy that he or she would otherwise have had; or
h)    unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
i)   preventing the family member from making or keeping connections with his or her family, friends or culture; or
j)   unlawfully depriving the family member, or any member of the   family member's family, or his or her liberty.
(Original emphasis.)
Direction No 99 introduced a new definition for a ‘member of the person’s family’ for the purposes of the definition of family violence to include ‘a person who has, or has had, an intimate personal relationship with the relevant person’.[149]
[149] This amendment addresses the Court’s comments in Deng v MICMSMA [2022] FCAFC 115 where it held that whether an ‘intimate partner’ was a member of the person’s family for the purposes of the ‘family violence’ definition in former Direction No 90 was a contestable issue that needed to be determined: see [123]–[130].
This primary consideration is relevant in circumstances where 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 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 has been afforded procedural fairness.[150]
[150] Direction No 99 para 8.2(2).
Several factors must be taken into account when considering the seriousness of family violence, including frequency of the conduct, cumulative effect of repeated acts, rehabilitation achieved, and reoffending after formal warnings about the consequences of further acts.[151] With respect to rehabilitation, the Tribunal is to consider: [152]
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…
[151] Direction No 99 para 8.2(3).
[152] Direction No 99 para 8.2(3)(c).
The Applicant accepts he has a history of family violence offending or conduct including against his former partner and child, Mstr K.
The Tribunal considers that the evidence clearly established that the Applicant was in a de facto partner relationship with Ms Brooks with whom he shares 5 children and 5 stepchildren. Mstr K is the Applicant’s dependent child who was living with him and was in his care at the time of the offences. The Tribunal is satisfied the Applicant’s conduct against the Ms Brooks and Mstr K constitutes family violence within the definition contained in Direction No 99.
The Applicant accepted his offences were serious, though he denied elements of most of the offences or claimed he could not recall the details. With respect to the offences against Mstr K, the sentencing remarks reflect that he initially claimed a defence of lawful chastisement. Before the Tribunal he claimed that he had merely been attempting to parent Mstr K whose behaviours were challenging.[153] He claimed Mr Brooks fabricated or exacerbated incidents to claim compensation.
[153] Transcript, page 44.
He submitted that his offending was caused by abuse of alcohol. He also accepted he had not undertaken any rehabilitation programs following his most recent offences to address his alcohol issues or to address family violence. However, he contended he had been sober for two years and was committed to not consuming alcohol and to providing a positive environment for his children. He contended that he was no longer in a relationship with Ms Brooks and that as such he was not a risk for further offending against her.[154]
[154] Transcript, pages 53 and 90-91.
The Respondent contended that the Applicant has been convicted of family violence related offending including:[155]
·The 2008 convictions for Contravene prohibition/restriction in AVO (Domestic) involving threats to his partner and where the AVO breached was in place following an alleged threat to strangle his partner;[156]
·The 2015 conviction for Contravene prohibition/restriction in AVO (Domestic) where he was drunk and yelled at his partner in contravention of a condition of the order not to be in her company within 12 hours of consuming alcohol;[157]
·The 2016 conviction for common assault against Ms Brooks;[158]
·The 2023 convictions for Assault occasioning actual bodily harm, stalk/intimidate intend fear, physical etc harm (domestic) (two counts), Contravene prohibition/restriction in AVO (Domestic) (two counts) and Common Assault (DV) where the victim was his minor child, Mstr K.[159]
[155] RSFIC, page 14.
[156] R1, G4, G9.
[157] R1, G4, G8, G11.
[158] R1, G7.
[159] R1, G6, G7.
The Respondent submitted that there was also material suggesting another instance of violence against Ms Brooks in July 2015, however looking at the material as a whole it appears that incident (which led to the making of a VRO for the protection of Ms Brooks in July 2015)[160] was the same incident that gave rise to the 2016 convictions.[161]
[160] Interim order R2, pages 91-98; Final order pages 98-100.
[161] R2, pages 204-206.
The Tribunal considers the offences cited by the Respondent met the definition of family violence, as did the 2016 conviction for Destroy or damage property (DV) which involved the punching of a wall in the family home during an argument with Ms Brooks in which she was also the victim of Common Assault.
As noted earlier, the sentencing judge commented on the serious nature of the offences against Mstr K and the history of breaches of VRO’s by the Applicant.
Regarding these offences, the Tribunal considers that the records establish a pattern of family violence offending by the Applicant against members of his family and that this family violence has increased in seriousness over time. His offending can be said to have had a cumulative effect on public resources, requiring police and court interventions, but also on the victims of his offending.[162]
[162] Direction No 99 para 8.2(3)(c).
The Tribunal notes the sentencing judge considered in the context of the 2015 breach of the VRO that the Applicant was aware of the consequences of the breach of such an order having been convicted of contravening a VRO in 2008. The Applicant was again warned on that occasion of the consequences of such offending, yet he committed further breaches of VROs leading to the 2023 convictions.[163]
[163] Direction No 99 para 8.2(3)(d).
As noted above, the Applicant did not claim to have undertaken any efforts to rehabilitate however, he claimed to have ceased consuming alcohol thus dealing with what he claims to be the underlying causes of his offending. The Tribunal considers that the intervening separation from his children and the impact on them along with the Applicant’s current sobriety have given him some insight into the impact of his family violence offending albeit is limited by his ongoing minimisation of that offending. The Tribunal considers the Applicant’s desire not to consume alcohol to be genuine though it notes the risk assessment prior to his parole identified ongoing minimisation and limited insight into the seriousness and impact of his offending. As noted above the Tribunal considers the Applicant has unmet treatment needs, which in this regard presents a risk for reoffending. The Applicant did not express any intention to undertake such rehabilitation voluntarily and it was unclear whether he would be required to do so as a condition of parole in the short period remaining on his parole. In any event, the impacts of any prospective treatment cannot be assumed (noting Direction No 99 guides decision-makers to take account of rehabilitation achieved at the time of the decision).
The Tribunal finds the Applicant’s most recent offences were serious instances of family violence. They were offences against a child with special needs who was in the Applicant’s care. These offences follow a history of violence when intoxicated, including against the child’s mother. As noted earlier, while some of the individual instances of family violence could be characterised as being at the mid to lower end of seriousness of offending of that kind, the cumulative and repeated nature of the offending increased the overall assessment of the family violence as serious.
Overall, the Tribunal considers the Applicant has engaged in serious family violence offending and this consideration weighs very strongly against revocation.
The strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Paragraph 8.3(1) of Direction No 99 provides that:
Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraphs 8.3(2) and (3) of Direction No 99 direct decision-makers to consider the

non-citizen’s ties to any children, and the strength, duration, and nature of any family or social links to members of the Australian community who are citizens, permanent residents or people who have an indefinite right to remain in Australia.
Relevantly, para 8.3 of Direction 99 provides, in part:
(2)       In considering a non-citizen’s ties to Australia, decision-makers should give
more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)the length of time the non-citizen has resided in the Australian community, noting that:
i.       considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.      more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.     less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
As outlined above, the Applicant has resided in Australia since he was an infant, around three years old. He then departed Australia at around 15 years old and returned when he was 30 years old, following the breakdown of his relationship in Canada and in order to reunite with his siblings and stepmother here.
His first recorded offence in Australia was for shoplifting in 2001. This was shortly after his return to Australia, however, as noted above the Tribunal considers that to be a relatively minor offence.
It is evident that the Applicant’s family ties to Australia are strong. The Applicant has 5 children and 5 stepchildren (referred to collectively as his children) with Ms Brooks. Three of those children are minors. His stepmother, who he has identified as his mother since he was a small child, his sister and his brother all live in Australia. He has extended family members through his children, some of whom have partners and children of their own.
He has a wife and adult child in the Philippines with whom he has had little contact since leaving that country when he was around 20 years old. He has a former partner, a son and a recently located maternal grandmother in Canada whom he has yet to meet. He has limited contact with his son.

This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
The Applicant’s offending can be properly characterised as falling within those categories identified in sub-paras 8.5(2)(a)–(f). He has breached this expectation by not obeying Australian laws. He has committed acts of violence, including repeated acts of family violence. He committed acts of violence against a child, his son, and against a female partner. Consequently, the expectation of the Australian community would be that the visa cancellation should not be revoked.[222]
[222] Direction No 99, para 8.5(1).
Paragraph 8.5(3) of Direction No 99 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling
decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Tribunal has found above that the Applicant poses a medium/ moderate risk of reoffending, particularly with respect to family violence offending. However, even if the Tribunal had found he was a minimal risk, the community’s expectations as stated would apply.
Further, paragraph 8.5(4) of Direction No 99 tells decision-makers that this consideration is about the expectations of the Australian community as a whole. It directs decision-makers to proceed based on the Government’s articulated views without assessing the community’s expectations in the particular case.
However, it remains for the Tribunal to determine the appropriate weight to be given to this consideration. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
In weighing this consideration, the Tribunal is also guided by the principles in para 5.2 of Direction No 99. Paragraph 5.2(2) directs that the Applicant, having engaged in criminal conduct, should expect to forfeit the privilege of staying in Australia. Paragraph 5.2(3) expresses a principle similar to para 8.5(2) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community. However, para 5.2(5) of Direction No 99 notes that Australia will generally afford a higher level of tolerance of criminal or other serious conduct by people who have lived in the community for most of their life or from a very young age. The level of that tolerance rises with the length of time the person has spent in the community, particularly in their formative years.
These are considerations which apply to the Applicant’s circumstances. He came to Australia as a young child, spending his childhood and teenage years here. While he left for a period of approximately 15 years, he has spent the majority of his time in Australia, including his formative years, and would be afforded tolerance by the Australian community as a result. The Respondent accepted this was a factor weighing in the Applicant’s favour in this case.[223] However, the Respondent contended that the consideration would, overall still weigh heavily against the Applicant having regard to the serious crimes he has committed notwithstanding the length of time he has resided in Australia.
[223] Transcript, page 85.
The Applicant arrived as an infant and spent his formative years here. The Tribunal finds that the Australian community would afford him a higher level of tolerance for his conduct based on the length of time he has lived here, though this is tempered by the serious nature of his offences.[224]
[224] Paragraph 5.2(5) of Direction No 99.
Overall, the Tribunal finds that the primary consideration in paragraph 8.5 of Direction No 99, being the expectations of the Australian community, weighs moderately against revoking the Cancelation Decision.
Other considerations
Paragraph 9 of Direction No 99 states:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on victims;
d)impact on Australian business interests
The Tribunal notes that the ‘other considerations’ listed are not exhaustive and that it invited the Applicant to identify an ‘other considerations’ he considered should be taken into account. In responded to this invitation he stated that:[225]
APPLICANT: Well, this is all I know. I mean, this is home; this is 25 where my friends are.
SENIOR MEMBER: Yes.
APPLICANT: So, you know, it’s – you know, if you’re going to take me 30 – send me away, then, as I said, I don't want to go. I want to stay here with my children, but, you know, it’s totally up to you. I mean, I just ask for your forgiveness and let me stay.
SENIOR MEMBER: So your friends and your connection to Australia is 35 something that would be taken into account in that consideration of your ties, the strength and nature of your ties to Australia.
APPLICANT: Yes, for that, like, my friends here, I’ve only got the ones from high school 20 years ago – sorry, I went to school 40 years ago. Didn’t 40 do too well, apparently. You know, and my sister and her kids and that’s it; like, Cherie and the kids here. That’s my group. That’s my inner circle.
SENIOR MEMBER: All right. Is there anything else that you want me to take into account or anything else you want me to have regard to?
APPLICANT: There’s not much else I could – you know, like, I said I want to stay for my children. That’s the reason I want to stay. Hopefully, it’s acceptable. If it’s not, well then, I’ll just have to tell the children I’ll never see them again, but knowing it wasn’t my fault – well, I didn’t abandon them as such. That’s my fear that they’re going to feel abandoned.
[225] Transcript, page 102.
As those matters where issues considered under the primary considerations of the strength, nature and duration of his ties to Australia and the best interests of him children, the Tribunal considered this did not raise additional ‘other considerations’ and notes its findings above with respect to those representations. The Applicant accepted those matters were raised and would be considered under the primary considerations.
Legal consequences of decision under section 501 or 501CA
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[226]
[226] Direction No 99 para 9.1.
In the personal circumstances form accompanying his request for revocation, in answer to the question of whether he had any fears or concerns about what would happen if he were to return to Canada, he ticked ‘no’.[227]
[227] R1, G12, page 100.
Later, in response to the question of whether there were any other problems he would face in returning to Canada, he stated ‘the loss of my children’. [228] This was consistent with his responses in evidence and submissions to the Tribunal. When asked by the Tribunal at the hearing what his concerns were about returning to Canada, he stated:[229]
My children. They mean the world to me. As bad as I’ve been – I never meant to be as bad, but I – my kids mean the world to me. And that includes [Mr M] and that because I’ve raised them since they were little. I don’t believe in the half-brothers and half-sisters. You’re family or you’re not family.
[228] R1, G12, page 100.
[229] Transcript, page 65.
While the Applicant raised some concerns about returning to Canada, he did not raise any claims to be owed protection either under refugee or complementary protection grounds. The Tribunal confirmed with him at the hearing that he had no such concerns and that it did not appear on the evidence that any ‘non refoulement’ issues arose with respect to his return. In the Tribunal’s view, on the information before it, the Applicant’s circumstances are not such as would suggest a non-refoulement claim arises.[230]
[230] Direction No 99 para 9.1(3).
In any event, the Tribunal notes that on the information before it, the Applicant has never held a protection visa or had a protection visa refused in Australia. He is not an unauthorised maritime arrival. Accordingly, he would not be the subject of the bar preventing him from making a protection visa application in the future, if the Cancellation Decision is not revoked, and he fears serious or significant harm on return to Canada. Should the Applicant have claims for protection arising from his return to Canada, they would be able to be made and considered in a protection visa application process.[231] He would not be liable for removal while any such application is determined.[232] For these reasons, the Tribunal does not consider non-refoulment obligations carry weight in the Applicant’s circumstances.
[231] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Keifel CJ, Keane, Gordon and Steward JJ (with whom Gageler J agreed)) at [9]; Direction No 99 para 9.1.2(2).
[232] Direction No 99 para 9.1.2(3).
While this consideration in Direction No 99 refers to non-refoulment obligations, it also makes reference to detention and removal, highlighting that there are a range of legal consequences of a decision not to revoke the cancellation of the Applicant’s visa. The consequences of a visa refusal or cancellation under s 501 or related provisions include:
·Unlawful status;
·The likelihood of becoming subject to detention and/or removal;[233]
·Refusal of other visa applications and cancellation of other visas;[234]
·A prohibition on applying for other visas;[235] and
·Periods of exclusion and special return criteria may apply.[236]
[233] Migration Act ss 189, 196, 197C, 198.
[234] Migration Act s 501F.
[235] Migration Act s 501E.
[236] Migration Act s 503, special return criteria (SRC) 5001.
Where a visa application is refused or a visa is cancelled under s 501, any other non-protection visa held by that person is taken to have been cancelled.[237] Generally, if a visa is cancelled, its former holder becomes an unlawful non-citizen immediately after cancellation.[238] Under s 189 of the Migration Act, the Applicant must be detained and removed as soon as reasonably practicable.[239] As no protection finding has been made with respect to the Applicant, there is no information to suggest he would be detained for any prolonged period.
[237] Migration Act s 501F.
[238] Migration Act s 15.
[239] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful: at [112]-[122].
Under s 501E of the Migration Act, a person cannot apply for another visa while they remain in Australia if:
·They have been subject to a visa refusal or cancellation under s 501; and
·The decision has not been set aside or revoked prior to their making the visa application.
Such an application is not a valid application for a visa.[240] The only exceptions are an application for a protection visa or a visa specified in the Regulations (i.e. reg 2.12AA).[241] There are limited visas specified under those Regulations.
[240] Migration Act s 46(1)(d).
[241] Migration Act s 501E(2).
As the legal consequence of a decision not to revoke the cancellation of the Applicant’s visa under s 501 of the Act is that he would be liable for removal from Australia, a further consequence of that removal would face a number of legal bars to obtaining a further visa to re-enter Australia if removed and would have limited options for visas enabling him to remain here.
The Respondent accepted that the legal consequence of the decision would be that the Applicant would likely be removed and would be unlikely to be able to obtain a further visa to remain in or re-enter Australia. The Respondent contended this was an intended consequence of the operation of s 501 and as such should afforded neutral weight.[242]
[242] RSFIC, page 17; Transcript, page 87.
The Tribunal accepts the removal and visa limitations which result from a decision not to revoke the cancellation of the visa are an intended consequence of the operation of s 501. However, the Tribunal considers that the impact these consequences would have on the Applicant weigh slightly in favour of revoking the cancellation of the Applicant’s visa.
Extent of impediments if removed
Paragraph 9.2 of Direction No 99 provides that taking into account the matters identified in sub-paragraphs 9.2(1)(a), (b) and (c) of Direction No 99, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of the basic living standards available to other citizens of Canada. The matters identified under sub-paragraphs 9.2(1)(a), (b) and (c) are:
·The Applicant’s age and health;
·Whether there are substantial language or cultural barriers; and
·Any social, medical and/or economic support available to the Applicant in their country.
The Applicant did not suggest that he faced substantial impediments if removed to Canada. However, he submitted that he does not have support in Canada and has limited contact with his son and a limited relationship with his newly located family members on his mother’s side which is currently limited to contact with his grandmother. He submitted that he would be able to maintain basic living standards in Canada, as he contended, he would be able to live anywhere, but that the separation from his family would cause him and them emotional hardship.[243]
[243] Transcript, pages 101-102.
The Respondent submitted that the Applicant does not face any substantial impediments if removed to Canada, noting that he lived in Canada between around 20 and 30 years of age and is not unfamiliar with the country. He would not suffer any cultural or language barriers on return there. He is in good physical and mental health and there was no evidence he would not have access to the same services available to other citizens. There is nothing to suggest he would be unable to re-establish himself and maintain basic living standards in Canada. Further the Respondent submitted that the Tribunal could infer that he would have access to similar government supports and medical and other services to those enjoyed in Australia noting Canada was country with a similar economic and governance profile to Australia.[244]
[244] RSFIC, page 18; Transcript, page 87.
The Applicant does have some family links to Canada including through his son and grandmother. As he is contact with both the Tribunal considers he will have some limited contacts there which could provide some emotional support or assistance as he resettles. However, the Tribunal accepts his evidence that his contact with his grandmother is new and the future of that relationship is uncertain, noting his grandmother is of advanced age at 94. The Tribunal also accepts the Applicant’s contact with his son has been quite limited, noting that they last had in person contact in 2009. As such the support provided by those contacts is likely to be limited. However, the Applicant testified that in the 10 years he lived in Canada he worked in construction and lived in several cities in that country. He is not unfamiliar with Canada and does not face language or cultural barriers there, noting English is a national language of Canada.
The Applicant gave evidence that he has recently had surgery for a melanoma on his nose and has liver and kidney issues arising from his use of alcohol. Those conditions are managed by medication and his skin cancer has been treated. He accepted he would be able have access to health and other supports in Canada and noting that he maintains he will refrain from consuming alcohol for health reasons, the Tribunal finds he would have access to services to meet his medical needs. Noting the Tribunal’s findings earlier with respect to the Applicant’s lack of treatment for longstanding alcohol misuse, the Tribunal has considered whether a resumption of the use of alcohol would amount to an impediment if removed. While the Tribunal considers it likely the Applicant may resume the use of alcohol, there was no information that he would not have access to support services to deal with issues arising from alcohol consumption. The Tribunal finds he would have access to similar supports to those available in Australia which would enable him to maintain basic living standards if removed to Canada even in the event he resumes past practices of alcohol consumption.
The Tribunal accepts the Applicant would suffer significant emotion distress if separated from his family. While he suggested he would take his youngest son with him to relocate, the prospects for such an arrangement eventuating were not clear on the evidence. The Tribunal accepts Mstr E or one of the other children may relocate with him. For the same reasons the Applicant would be able to maintain basic living standards for himself, the Tribunal finds he would be able to provide for any children living with him, who would also be able to access services available to descendants of Canadian citizens.
Overall, the Tribunal finds that the extent of impediments if removed, weighs in favour of revocation of the Cancellation Decision but that only slight weight be afforded this consideration in the Applicant’s circumstances.
Impact on victims
Paragraph 9.3 of Direction No 99 states:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
Neither the Applicant nor the Respondent submitted that this consideration was relevant to the decision in the Applicant’s case.
There is no information before the Tribunal regarding the effect of a decision under s 501 with respect to the Applicant’s visa application on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations). The Applicant’s former partner and his son were victims of his offending and submissions were made with respect to the impact of a decision on them in the context of ties to Australia and in the consideration of the best interests of children, however, there was no evidence directly from either of the victims. In this regard the Tribunal notes the evidence establishes that the Applicant’s son is protected by a VRO until 16 February 2028.[245] The evidence was that he lives with his mother. While the Applicant suggested he would seek to vary that order to allow him to contact and potentially to have custody of his son in the longer term, the outcome of any such application is at this stage a matter of speculation. The Applicant also suggested that his ex-partner would be negatively impacted by a decision not to revoke the cancellation of the visa as she would be without his support in raising the children and had mental health issues of her own.
[245] R2, page 289.
As a VRO is currently in place which would limit the Applicant’s contact with his son and there was no evidence from his ex-partner regarding the impact of the decision on her, the Tribunal consider that neutral weight should be afforded this consideration noting that the interests of both have been assessed under other considerations (above) which are not related to their status as victims of the Applicant’s offending.
Impact on Australian business

Paragraph 9.4 of Direction No 99 states:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant did not suggest that his removal from Australia would adversely impact on Australian business interests.
The Tribunal considers this consideration is not relevant in the Applicant’s case.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has therefore considered whether there is ‘another reason’ why the Cancellation Decision should be revoked, having regard to the primary and relevant other considerations in Direction No 99.
Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account and weighed.
There has been extensive judicial consideration of how the exercise of balancing and weighing the considerations contained in the relevant Ministerial Directions is to be undertaken (considering a number of Ministerial Directions preceding Direction No 99). Recently, the Full Court of the Federal Court considered the operation of Direction 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs. While the Court was considering Direction No 90, it’s observations would apply to Direction No 99. The Court found that the Tribunal must weigh the various primary and other relevant considerations outlined in the Direction (in this case Direction No 99) against each other and undertake an evaluation of whether there was ‘another reason’ why the cancellation should be revoked.
In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction No 99. The Tribunal has ascribed weight to each of the primary and other relevant considerations under Direction No 99 and explained the basis upon which it has assessed the weight to be given to each consideration.
The Tribunal has gone on to compare and balance all of the considerations to determine whether the Cancellation Decision should be revoked.
The Tribunal has considered the primary considerations, including the protection of the Australian community. The Tribunal found that the Applicant’s offending involving repeated family violence related offences against a former partner and a dependent child were very serious. The Tribunal also found that there is a medium/ moderate risk to the Australian community that the Applicant will reoffend and that if he does so, the harm which would be caused is serious. Having regard to all the circumstances of the Applicant’s offending and other serious conduct the Tribunal considers the protection of the Australian community weighs against revocation of the Cancellation Decision and that strong weight should be afforded that consideration in the Applicant’s case.
The Applicant has engaged in acts of family violence against his former partner and his son. While he has abstained from alcohol, he does not appear to have undertaken any rehabilitation for misuse of alcohol or family violence issues. He has minimised the seriousness of his offending. The consideration of family violence weighs very strongly against revocation of the Cancellation Decision in the Applicant’s circumstances.
The Applicant has strong ties to the community noting he came to Australia as a young child and spent his formative years here and has significant family ties to this country through his 10 children and their extended families and through his stepmother and sister. Those ties are strengthened by the fact his children identify as Indigenous Australians. While the Applicant’s positive contributions to the community were limited, he has raised a family here and cared for his children, a number of whom have special needs. The Tribunal considers the strength, nature and duration of the Applicant’s ties to Australia weighs in favour of revoking the Cancellation Decision and that this consideration carries strong weight in the Applicant’s case.
The best interests of the three minor children who were identified as being impacted by the decision, Mstr E, A and K, presented a complex challenge to the Tribunal to assess noting the limited information regarding their circumstances, uncertainty about prospective care arrangements and their complex personal profiles. The Tribunal considered the Mstr K, the victim of the Applicant’s most recent offending, is protected by a VRO in place until he reaches maturity and has the care of his mother and contact with his adult siblings. While contact with his father may not currently be in his interest, weighing in favour of non-revocation, allowing him the choice of future contact once the VRO is no longer in place may be important to his longer-term interests. On balance, the Tribunal considered that his best interests weighed neither for no against revocation, and that his interests should be afforded neutral weight. Mstr A has been the subject of a VRO in the past, however, there was evidence the Applicant’s detention had caused him emotional hardship and on balance the Tribunal considered his best interest lay in the Cancellation Decision being revoked though his interests only carried moderate weight. Mstr E is the youngest of the children and has complex mental health needs which have caused him to be recently hospitalised. Notwithstanding he is currently in the care of his brother and sister-in-law and the findings above regarding the ongoing risk of the Applicant reoffending, given his age and complex needs the Tribunal finds it is in his best interests that the Applicant remain in Australia to provide support to him. Therefore, his best interests weigh in favour of revocation of the Cancellation Decision and the Tribunal considers Mstr E’s interests carry very strong weight having regard to all the circumstances and considerations.
The Applicant has committed acts of violence against a female partner and his child. Such offending raises serious character concerns and the expectations of the Australian community would be that the Applicant’s visa would remain cancelled. The weight to be afforded this consideration is tempered by the added tolerance the community would afford the Applicant as a result of his having spent his formative years here. The Tribunal considers this consideration weighs moderately against revocation in the Applicant’s case.
In relation to the relevant ‘other considerations’ identified in Direction No 99, the Tribunal finds that the legal consequences of the decision weigh slightly in favour of revocation. The extent of impediments if removed are not insurmountable noting the Applicant has some ties there and has lived in Canada during his adult years. This consideration weighs slightly in favour of revoking the cancellation of the Applicant’s visa. The impact on the victims and weighs neutrally in the Applicant’s circumstances. The impact on Australian businesses is not relevant in the Applicant’s circumstances.
The Applicant’s case presents a significant challenge. There are no ideal outcomes given the concerns regarding his ability to abstain from alcohol in the community and avoid further offending against his family members, including when living with the stressors presented by his children’s behavioural needs and his own trauma history which has been left largely untreated. However, the Applicant’s removal would place his remaining minor children, in particular Mstr E, at ongoing risk of deterioration of their mental health in a situation where their care needs are complex and their care arrangements lack stability.
In weighing these considerations against one another, the Tribunal considers that although there are strong countervailing considerations weighing against revoking the Cancellation Decision, including the protection of the Australian community, family violence and the expectations of the Australian community, these are outweighed in the Applicant’s case by the primary and other relevant considerations weighing in favour of revoking the Cancellation Decision, namely the best interests of minor children impacted by the decision, the strength nature and duration of the Applicant’s ties to the Australian community, and to a lesser extent the impediments if removed and legal consequences of the decision.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction No 99, the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked. The correct or preferable decision is to set aside the Non-Revocation Decision and substitute with a decision that the Cancellation Decision be revoked.
DECISION
The decision of the delegate of the Respondent dated 13 December 2023 not to revoke the mandatory cancellation of the Applicant’s Five Year Resident Return (Class BB) (Subclass 155) visa is set aside and substituted with a decision that the cancellation of the Applicant’s visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 292 (Two-hundred and ninety-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member S Burford

..................[Sgd]......................
Associate
Dated: 11 March 2024

Date of hearing: 27 February 2024

Applicant: In person

Solicitors for the Respondent: Mr A Chan, Sparke Helmore Lawyers
ANNEXURE A – TABLE OF THE APPLICANT’S CRIMINAL HISTORY IN AUSTRALIA
Offending table details drawn from the RSFIC summary checked against the Australian Criminal Intelligence Commission ‘Check Results Report,’ run on 17 May 2023 and the NSW Police Force Criminal History – Bail Report created 21 January 2024.[246]
[246] R1, G4; R2 pages 70-83.

Court Outcome Date Date of offence Court Offence Court outcomes

14 April 2023

17 February 2023 (Conviction)
17 February 2023 Campbelltown District Court
Stalk/intimidate intend fear physical etc harm (domestic)

Imprisonment (aggregate) 20 months

Non Parole Period 10 Months

(reduced sentence on appeal)

14 April 2023 16 February 2023 Campbelltown District Court Stalk/intimidate intend fear physical etc harm (domestic)
Imprisonment (aggregate) 20 months; Non Parole Period 10 Months

(reduced sentence on appeal)

14 April 2023 16 May 2022 Campbelltown District Court Common Assault (DV)
Imprisonment (aggregate) 20 months; Non Parole Period 10 Months

(reduced sentence on appeal)

14 April 2023 13 August 2022 Campbelltown District Court Contravene prohibition/restriction in AVO (Domestic)
Imprisonment (aggregate) 20 months; Non Parole Period 10 Months

(reduced sentence on appeal)

14 April 2023 13 August 2022 Campbelltown District Court Assault occasioning actual bodily harm (DV)
Imprisonment (aggregate) 20 months; Non Parole Period 10 Months

(reduced sentence on appeal)

14 April 2023 16 May 2022 Campbelltown District Court Contravene prohibition/restriction in AVO (Domestic)
Imprisonment (aggregate) 20 months; Non Parole Period 10 Months

(reduced sentence on appeal)

17 February 2023

(Conviction)
16 February 2022 Campbelltown Local Court Common Assault (DV) Conviction with no other penalty ( s 10a)

11 January 2016 13 September 2015 Albion Park Local Court Drive with middle Range PCA – 1^st off
Disqualification 6 months

Fine $600

11 January 2016 17 February 2015 Albion Park Local Court Stalk/intimidate fear physical etc harm (personal) Bond 12 Months

11 January 2016 17 February 2015 Albion Park Local Court Destroy or damage property Imprisonment 10 Weeks

11 January 2016 17 February 2015 Albion Park Local Court Common Assault (DV) Imprisonment 10 Weeks

14 December 2015 22 October 2015 Port Kembla Local Court Contravene prohibition/restriction in AVO (domestic) Imprisonment 2 months

3 March 2010 31 January 2010 Port Kembla Local Court Assault officer in execution of duty 2 Years probative service

3 March 2010 31 January 2010 Port Kembla Local Court Assault officer in execution of duty 2 Years probative service

3 March 2010 31 January 2010 Port Kembla Local Court Resist officer in execution of duty
Fine $500

Costs – Court: $76

18 September 2008 29 August 2008 Port Kembla Local Court Contravene prohibition/restriction in AVO
Bond: 2 years

Costs – Court: $73

24 January 2001 21 December 2000 Port Kembla Local Court Shoplifting value <+$2000
Fine: $200

Costs – Court: $56

ANNEXURE C: VIOLENCE RESTRAINING ORDERS

Court Outcome Date	Date of offence	Court	Offence	Court outcomes
14 April 2023 17 February 2023 (Conviction)	17 February 2023	Campbelltown District Court	Stalk/intimidate intend fear physical etc harm (domestic)	Imprisonment (aggregate) 20 months Non Parole Period 10 Months (reduced sentence on appeal)
14 April 2023	16 February 2023	Campbelltown District Court	Stalk/intimidate intend fear physical etc harm (domestic)	Imprisonment (aggregate) 20 months; Non Parole Period 10 Months (reduced sentence on appeal)
14 April 2023	16 May 2022	Campbelltown District Court	Common Assault (DV)	Imprisonment (aggregate) 20 months; Non Parole Period 10 Months (reduced sentence on appeal)
14 April 2023	13 August 2022	Campbelltown District Court	Contravene prohibition/restriction in AVO (Domestic)	Imprisonment (aggregate) 20 months; Non Parole Period 10 Months (reduced sentence on appeal)
14 April 2023	13 August 2022	Campbelltown District Court	Assault occasioning actual bodily harm (DV)	Imprisonment (aggregate) 20 months; Non Parole Period 10 Months (reduced sentence on appeal)
14 April 2023	16 May 2022	Campbelltown District Court	Contravene prohibition/restriction in AVO (Domestic)	Imprisonment (aggregate) 20 months; Non Parole Period 10 Months (reduced sentence on appeal)
17 February 2023 (Conviction)	16 February 2022	Campbelltown Local Court	Common Assault (DV)	Conviction with no other penalty ( s 10a)
11 January 2016	13 September 2015	Albion Park Local Court	Drive with middle Range PCA – 1^st off	Disqualification 6 months Fine $600
11 January 2016	17 February 2015	Albion Park Local Court	Stalk/intimidate fear physical etc harm (personal)	Bond 12 Months
11 January 2016	17 February 2015	Albion Park Local Court	Destroy or damage property	Imprisonment 10 Weeks
11 January 2016	17 February 2015	Albion Park Local Court	Common Assault (DV)	Imprisonment 10 Weeks
14 December 2015	22 October 2015	Port Kembla Local Court	Contravene prohibition/restriction in AVO (domestic)	Imprisonment 2 months
3 March 2010	31 January 2010	Port Kembla Local Court	Assault officer in execution of duty	2 Years probative service
3 March 2010	31 January 2010	Port Kembla Local Court	Assault officer in execution of duty	2 Years probative service
3 March 2010	31 January 2010	Port Kembla Local Court	Resist officer in execution of duty	Fine $500 Costs – Court: $76
18 September 2008	29 August 2008	Port Kembla Local Court	Contravene prohibition/restriction in AVO	Bond: 2 years Costs – Court: $73
24 January 2001	21 December 2000	Port Kembla Local Court	Shoplifting value <+$2000	Fine: $200 Costs – Court: $56

Date of order	Period of order	Type (interim or Final)	Order in name of	For protection of
1	9 February 2011[247]	28 Days (requests 2 years)	Provisional AVO	Jason A	Samuel Saunders Cherrie Brooks
2	12 August 2015[248]	Request 1 year	Provisional AVO	Samuel Saunders	Cherrie Brooks
3	16 July 2015[249]	12 Months	Final Order	Samuel Saunders	Cherrie Brooks
4	18 October 2019[250]	Provisional Order	Brock Saunders	Samuel Saunders
5	28 October 2019[251]	Until revoked or a further order made	Interim	Brock Saunders	Samuel Saunders
6	18 February 2022[252]	Provisional Order	Samuel Saunders	Mstr K
7	8 March 2022[253]	Until revoked or a further order made	Interim order	Samuel Saunders	Mstr K
8	3 May 2022[254]	Provisional Order	Mstr K	Samuel Saunders
9	23 May 2022[255]	Until revoked or a further order made	Interim order	Mstr K	Samuel Saunders
10	31 May 2022[256]	Until revoked or a further order made	Interim order	Samuel Saunders	Mstr K
11	16 August 2022[257]	Until revoked or a further order made	Interim order	Samuel Saunders	Mstr K Mstr A
12	17 February 2023[258]	5 Years	Final order	Samuel Saunders	Mstr K
13	08 August 2023[259]	Provisional Order	Samuel Saunders	Unrelated Minor JF
14	7 November 2023[260]	2 Years	Final Order	Samuel Saunders	Unrelated Minor JF

[247] R2, pages 85-90. For the protection of the Applicant and Ms Brooks from a third party (neighbour).

[248] R2, pages 91-97.

[249] R2, pages 98-100

[250] R2, pages 104-109.

[251] Pages 101-103.

[252] R2, pages 118-121; 300-302.

[253] R2, page 136.

[254] R2, pages 128-131.

[255] R2, pages 137-139.

[256] R2, pages 125-127.

[257] R2, pages 147-149.

[258] R2, pages 289-292.

[259] R2, pages 110-117.

[260] R2, pages 144-146.

Date of hearing:	27 February 2024
Applicant:	In person
Solicitors for the Respondent:	Mr A Chan, Sparke Helmore Lawyers