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

Sioni and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2987 (28 July 2023)
Division:GENERAL DIVISION
File Number(s): 2023/3074
Re:Malcolm Daniel Aisi Sioni
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member Lee Benjamin
Date:28 July 2023
Date of written reasons: 18 September 2023
Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 5 May 2023 to not revoke the cancellation of the Applicant’s visa.
..............................[SGD]..........................................
Member Lee Benjamin
Catchwords
MIGRATION – Mandatory visa cancellation – PNG citizen - Class BB Subclass 155 Five Year Resident Return visa – section 501CA of the Migration Act 1958 (Cth) – failure to pass good character test – substantial criminal record – where offending includes sexual offences, “revenge porn” offences and domestic violence offences - whether “another reason” exists for Tribunal to revoke mandatory cancellation of visa under section 501CA of the Migration Act 1958 (Cth) – Ministerial Direction No. 99 applied – Respondent’s delegate’s decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Migration Act 1953 (Cth)
Cases
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Plaintiff M1-2021 v Minister for Home Affairs [2022] HCA 17
Minister for Home Affairs v HSKJ (2018) 266 FCR 591
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
REASONS FOR DECISION
Member Lee Benjamin
18 September 2023

The Applicant arrived in Australia in June 2009 (aged around 12 years). He commenced committing crimes in February 2017 (aged around 20 years).[1] Since then, he has been found guilty of nine offences, including assault occasioning bodily harm of his former girlfriend, distributing prohibited visual recordings (otherwise known as “revenge porn”) involving another former girlfriend, and domestic violence order contraventions, among other offending.[2] His visa[3] was mandatorily cancelled in June 2022 because he has a substantial criminal record.[4] He requested revocation of the decision[5] and it was refused.[6] In May 2023, the Applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the Respondent’s decision[7] not to revoke his visa cancellation.[8] It is common ground between the parties that the Applicant fails the statutory character test for revocation.[9] Accordingly, the only question for the Tribunal to determine is whether there is “another reason” why the decision to cancel the Applicant’s visa should be revoked.[10] On balance, I find that the answer to this question is, no.
[1] Exhibit Tr1, G4, p 163-166. The Tribunal notes that the G-Documents indicate the offence of Contravene Direction or Requirement, dealt with at the Holland Park Magistrates Court in 2018, occurred on 24 February 2017.
[2] Exhibit Tr1, G2, p 27-28.
[3] Class BB Subclass 155 Five Year Resident Return visa.
[4] Subsection 501(3A) of the Migration Act 1953 (Cth) (Act) requires the Respondent to cancel a visa if the person does not pass the character test because they have a substantial criminal record. The Applicant does not pass the character test (see below).
[5] Exhibit Tr1, G2, p 54.
[6] Subsection 501CA(4) the Act; Exhibit Tr1, G2, p 6.
[7] The Tribunal has jurisdiction to review the decision under subsection 500(1)(BA) of the Act.
[8] Exhibit Tr1, G1, p 1.
[9] Subsection 501CA(4)(b)(i) of the Act; Exhibit R1, p2, para 3; Transcript, p 65, lines 16-22.
[10] Subsection 501CA(4)(b)(ii) of the Act.
The hearing in this matter took place on 10 and 11 July 2023. The Tribunal received oral evidence from the Applicant and one other witness, Mr Mitchell Sioni. The Tribunal also received the written submissions and evidence that appears in the Exhibit List, in Annexure A.
LEGAL FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by subsection 501CA(4) of the Act. Relevantly, this provides that:
The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant was invited to, and did, make the representations in support of the revocation of the visa cancellation required by subsection 501CA(4)(a) of the Act.[11]
[11] Exhibit Tr1, G2, p 53-76.
Does the Applicant Pass the Character Test?
The character test is defined in subsection 501(6) of the Act. Under subsection 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in subsection 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more.”
On 10 February 2022, the Applicant was convicted in the Holland Park Magistrates Court of assault occasioning bodily harm and sentenced to 18 months imprisonment.[12]
[12] Exhibit Tr1, G2, p 27-28.
The Respondent contends,[13] and the Applicant concedes,[14] that the Applicant does not pass the character test as defined by subsection 501(6). I am satisfied (and find) that the Applicant does not pass the character test because the Applicant has a “substantial criminal record”. He cannot rely on subsection 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[13] Exhibit R1, p 2, para 3.
[14] Transcript, p 65, lines 16-22.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
The central question in this review is whether the Tribunal, standing in the Respondent’s shoes, is satisfied that there is “another reason” why the cancellation decision should be revoked under subsection 501CA(4). I must “do over again” the task of the primary decision maker, making my own findings of fact, based on the material before me, undertaking my own assessment against the statutory criteria. This requires me to review the Applicant’s representations and the evidence put forward in support of them. Overall, I am required to examine the factors for and against revoking the cancellation.
In considering whether to exercise the discretion in subsection 501CA(4), the Tribunal is bound by section 499 to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 99 or the Direction) applies.[15]
[15] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains principles that must guide a decision-maker’s application of Part 2 of the Direction:
(a) Australia has a sovereign right to determine whether non-citizens who are of character concern have a right to enter or remain in Australia. Being able to come 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 (paragraph 5.2(1)).
(b) 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 (paragraph 5.2(2)).
(c) The Australian community expects that the Australian Government can and should refuse entry to non-citizens or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (paragraph 5.2(3)).
(d) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding 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(paragraph 5.2(4).
(e) 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 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 (paragraph 5.2(5)).
(f) 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 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community (paragraph 5.2(6)).
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.[16]
[16] Direction, paragraph 6. See also Direction, paragraph 4(1) which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account. They are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia; and
(5) expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account, where relevant. They are:
(a) legal consequences of the decision;
(b) extent of impediments if removed;
(c) impact on victims; and
(d) impact on Australian business interests.
I may also take into account other matters that are relevant to whether there is another reason to revoke the cancellation of the Applicant’s visa, such as the prospect of indefinite detention.
Paragraph 7(2) of the Direction provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations. However, it is accepted that other considerations should not necessarily be seen as "secondary" and, in certain circumstances, it may be that other considerations may outweigh primary considerations.[17]
[17] See also: Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23] - [32]. Cf. Minister for Home Affairs v HSKJ (2018) 266 FCR 591, 601 - 602.
If the Tribunal is satisfied that another reason exists to revoke the cancellation decision, it must proceed to do so. There is no second step to the test where the Tribunal considers whether it ought to revoke the cancellation, following a decision that another reason to do so exists.[18]
[18] Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, [38].
BACKGROUND AND OFFENDING
The Applicant’s offending history in Australia is summarised in the table below:

Court Conviction date Offence Outcome

Holland Park Magistrates Court 24.07.2018 Contravene Direction or Requirement
Fined: $200.00

No conviction recorded

Contravention of Domestic Violence Order
Probation Period: 2 years

Community Service Time: 240 hours (to be completed within 12 months)

No conviction recorded

Distribute Prohibited Visual Recordings Domestic Violence Offence

Brisbane Magistrates Court 28.07.2020 Failure to Appear in Accordance with Undertaking Fined $300.00, conviction recorded

Breach of Probation Order
[For Breach of Probation Order]:

Conviction Recorded

Not further punished

Order(s) revoked

[Resentenced for Original Offences]:

Distribute Prohibited Visual Recordings Domestic Violence Offence – 3 months imprisonment, suspended for 18 months, conviction recorded

Contravention of Domestic Violence Order – Fined $200.00, conviction recorded.

Holland Park Magistrates Court 10.02.2022 Contravention of Domestic Violence Order (Aggravated Offence) Conviction recorded, not further punished

Breach of Bail Condition

Assaults Occasioning Bodily Harm 18 months imprisonment, conviction recorded

Brisbane Magistrates Court 23.06.2022 Contravention of Domestic Violence Order (Aggravated Offence) 3 months imprisonment, conviction recorded

Based on the Applicant’s criminal history, I consider that his offending may be divided into several phases as set out below.
Offending against Victim 1 - the Applicant’s former girlfriend
The Applicant was found guilty on 24 July 2018 in the Holland Park Magistrates Court of the offence of Distribute prohibited visual recordings domestic violence offence. This offence related to an incident in 2018 where the Applicant threatened Ex-girlfriend Victim 1 that if she did not talk to him, he would distribute nude photos of her to her family and friends. Ex-girlfriend Victim 1 ignored the Applicant's messages. The Applicant proceeded to distribute the nude photos of Ex-girlfriend Victim 1 to her family and friends.
The Queensland Police Service (QPS) Court Brief described the facts of the offending as follows:
[Ex-girlfriend Victim 1] and SIONI were in a relationship for approximately 18 months, however have since ended that relationship on the 9th of February 2018.
The complainant reported to Police that her ex-boyfriend Malcolm SIONI had posted naked photos of her on Instagram and sent those same photos and sexually explicit videos to [Ex-girlfriend Victim 1]’s family and friends via Facebook messenger. Police obtained a formal statement from the complainant at the Holland Park Police Station. This statement was obtained on the 16th of February 2018.
The statement outlined during the 18-month relationship, SIONI displayed extremely controlling and jealous behaviour towards [Ex-girlfriend Victim 1]. She further stated that throughout their relationship, there was times that SIONI had become physical and verbally abusive towards her. [Ex-girlfriend Victim 1] attempted to end this relationship several times. [Ex-girlfriend Victim 1] provided SIONI with her Facebook log in details during their relationship, which allowed SIONI access to [Ex-girlfriend Victim 1]’s Facebook account.
On the 10th of February 2018, [Ex-girlfriend Victim 1] was with her Uncle at the shopping centre in Toombul. During this time, SIONI had sent her multiple text messages in attempt to speak with [Ex-girlfriend Victim 1], however she ignored the messages as she no longer wanted a relationship with SIONI. SIONI continued to message her countless times, and became increasingly agitated and upset. The content of the texts from SIONI stated “if you don’t talk to me, I will send nude photos and videos of you to your friends and family” [Ex-girlfriend Victim 1] ignored those messages.
[Ex-girlfriend Victim 1] attended her Uncles address, where she was met by her Aunty. Her Aunty showed [Ex-girlfriend Victim 1] a Facebook conversation on her phone between [Ex-girlfriend Victim 1] and her Aunty. This conversation showed [Ex-girlfriend Victim 1] had sent several naked images to her aunty. [Ex-girlfriend Victim 1] stated to her Aunty that the images were not sent by herself but were sent by SIONI, as he was signed into her Facebook. Moments later, [Ex-girlfriend Victim 1] received messages from several friends and family who had also received these same images. [Ex-girlfriend Victim 1] opened the conversations and seen there was images and videos sent by herself to her aunty. However she realised they were not sent by herself and suspected [Ex-girlfriend Victim 1] had sent them due to the fact of the previous texts messages she had received.
[Ex-girlfriend Victim 1] recognised the photos as they are images she has only sent to SIONI and no one else. [Ex-girlfriend Victim 1] and her Aunty attended a Police station on the same day and reported the matter.
Five days later, on the 15th of February 2018 at approximately 10:50pm, [Ex-girlfriend Victim 1] received a message on Facebook messenger from a fake account “[Redacted]”. [Ex-girlfriend Victim 1] recognised this name to be a fake account. On this same conversation, she then received images of screenshots of an Instagram page called “[Redacted]”. This Instagram page displayed 12 sexually explicit images, all of [Ex-girlfriend Victim 1]. There were also 2 videos of sexual explicit material of [Ex-girlfriend Victim 1]’s vagina. These images and videos only displayed [Ex-girlfriend Victim 1] and no one else. [Ex-girlfriend Victim 1] recognised this conversation to be from SIONI as she then received messages stating “Very own Facebook and IG account. I’m going to add everyone in Philippines and Brisbane. You just made it worse and now it won’t stop”
Approximately 2 hours later [Ex-girlfriend Victim 1] received a large email from SIONI’s email account stating how sorry he was for what he had done and also that he wanted to continue with their relationship.
On the 16th of February 2018 [Ex-girlfriend Victim 1] attended the Holland Park Police Station and provided a formal statement in relation to what had occurred.
At approximately 2:30pm on the same day, Police conducted a search warrant on the residence of Malcolm SIONI at [Redacted]. During this search police located SIONI’s mobile phone which was seized for examination.
SIONI accepted the offer to take part in a formal record of interview at the Holland Park Police Station. During this interview SIONI made full admissions to sending the sexually explicit images and videos via [Ex-girlfriend Victim 1]’s Facebook. These were sent via Facebook messenger, to multiple group conversations which included her mother, aunty and friends. Further to that, SIONI also stated he created a fake Instagram account named “[Redacted]”
On this account, SIONI has posted 12 images and 2 videos of sexually explicit material of [Ex-girlfriend Victim 1].
When asked the reason why he sent the images and video on Facebook messenger and created the Instagram account he stated he was very frustrated and upset that [Ex-girlfriend Victim 1] wasn’t returning his texts. He stated [Ex-girlfriend Victim 1] “made him do it” by not responding.
SIONI showed no remorse for his actions and appeared to be unaware of the severity of his behaviour towards [Ex-girlfriend Victim 1].
SIONI was issued with a Notice to Appear for Holland Park Magistrates Court.[19]
[19] Exhibit Tr1, G5, p 164-165.
The Applicant was also found guilty on 24 July 2018 in the Holland Park Magistrates Court for Contravention of domestic violence order. This offence related to the above incident whereby the Applicant contacted Ex-girlfriend Victim 1 in contravention of a temporary protection order.

The QPS Court Brief described the facts of the offending as follows:
On the 21st of February 2018 in the Magistrates Court of Holland Park a Temporary Domestic Violence Protection order was issued naming the aggrieved as [Ex-girlfriend Victim 1] and the respondent as Malcolm Daniel SIONI.
The Domestic Violence Order consisted of 4 Conditions. Two of these conditions were:
(2) the respondent is prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved.
And
(4) the respondent is prohibited from using the internet or any other communication device (including social networking sites) to communicate with, publish pictures of or make comments concerning the aggrieved.
The respondent was present in court when the order was made.
1. Contravene Domestic Violence order
Approximately 2:22am on the 25th of February 2018 the Respondent had contacted the aggrieved via a mobile phone chatting application named “Wechat.” The respondent had contacted the aggrieved stating “I love you so much.” The aggrieved subsequently reported the matter to Police and provided a Screenshot of the message.
Approximately 9:59am on the 12th of March 2018 Police from Upper Mount Gravatt Station attended [redacted] to speak with the respondent in relation to this matter.
Police introduced themselves and asked the respondent his name and he stated Malcolm Daniel SIONI. The respondent provided his passport which confirmed his identity via photograph and name.
The respondent admitted that he knew there was a current Temporary Domestic Violence order in place and that he made aware of the conditions in court. When questioned the respondent told Police that he consumed a lot of alcohol and was feeling very upset and vulnerable when he decided to contact the aggrieved. The respondent admitted that he knew it was wrong and told Police that he immediately blocked the aggrieved and deleted her as a contact. The respondent told Police that he did not have an emergent or lawful reason for contacting the aggrieved even though two of the conditions on the order state that he cannot do so. There was no permission from the aggrieved to received contact from the respondent.
The respondent has therefore Contravened condition 2 and 4 of the Temporary Domestic Violence Protection Order.[20]
[20] Exhibit Tr1, G5, p 168.
No conviction was recorded for the Distribute prohibited visual recordings domestic violence offence and Contravention of domestic violence order offences. The Applicant was placed on two years of probation and ordered to do community service of 240 hours.[21]
[21] Exhibit Tr1, G2, p 27-28.
However, the Applicant breached the probation order in relation to the Distribute prohibited visual recordings domestic violence offence.[22] He was convicted on 28 July 2020 in the Brisbane Magistrates Court and sentenced to three months imprisonment, suspended for 18 months. For the contravention of domestic violence order, the Applicant was fined $200.[23]
[22] Transcript p 35, lines 15-47; p 36, lines 1-20.
[23] Exhibit Tr1, G2, p 27-28.
Offending against Victim 2 - the Applicant’s former girlfriend
The Applicant was convicted on 10 February 2022 for Assault occasioning bodily harm, Contravention of domestic violence order (aggravated offence) and Breach of bail conditions. This offending relates to an incident on 5 June 2021 in which the Applicant physically attacked Ex-girlfriend Victim 2 after an argument, and pushed her. This caused her to fall backwards and hit a wall, creating a hole in the wall. Ex-girlfriend Victim 2 fell to the ground and the Applicant stamped on her head. The Applicant then took Ex-girlfriend Victim 2's mobile phone and struck her head with it. Ex-girlfriend Victim 2 was left with a significant gash above her left eyebrow which required hospital treatment. She also reported psychological harm.
In his sentencing remarks, his Honour Magistrate Young set out the background facts to, and nature of, the Applicant’s offending:
HIS HONOUR: …Mr Sioni here today, there are a number of matters to be taken into account here today both for and against him. I have already identified that of the three charges, the assault occasioning bodily harm, a domestic violence offence, is clearly the most serious. It is not to say that the other charges might not be serious in their own context, but the assault clearly is, and in the circumstances of what occurred on the 5th of June 2021, Mr Sioni and [Ex-girlfriend Victim 2] had earlier plans to go out. Mr Sioni now says that he had consumed excessive alcohol and marijuana. [Ex-girlfriend Victim 2] had decided, according to the facts, that because of Mr Sioni’s conduct towards her, she had changed her mind about going out and had gone to another person’s unit in this complex where they both resided.
She saw Mr Sioni let himself into her premises. She goes into the premises. He treats her in a very rough, verbal fashion about the Uber having arrived. She informs him that she no longer wishes to go out, and he attacks her. Mr Sioni has pushed [Ex-girlfriend Victim 2] backwards into a wall. She has fallen backwards, hitting the wall, creating a hole in the wall. She has fallen to the ground. Mr Sioni has then stamped on her head. All the while, [Ex-girlfriend Victim 2] pleading and querying what she has done to deserve such action and how could he be doing this to her if he loves her. Mr Sioni then ultimately takes [Ex-girlfriend Victim 2]’s mobile phone off her, throws it at her, striking her head just above her left eyebrow creating a significant gash, and the photographs attached to exhibit 5 show the significance of that injury.
[Ex-girlfriend Victim 2] ultimately admitted to hospital. The consequences experienced by [Ex-girlfriend Victim 2] that she explains in her victim impact statement is less so from the physical perspective, and I can only presume, there being no other information to the contrary, that the physical injuries have resolved cleanly and without further incident, but the mental and psychological harm that Mr Sioni has visited upon her troubles her to this day. There is no supporting medical information to take that any further, but she expresses very clearly the distress and ongoing feelings of self-doubt as a result of how Mr Sioni has treated her not just in these incidents but overall, including when they had an attempted reconciliation which then leads to the later offending.
Mr Sioni in this whole sequence of events has acted in a completely self-absorbed and self-interested way and, apparently, without any regard for [Ex-girlfriend Victim 2]’s wellbeing or feelings, and it is, I should say at that point, with respect to the assault occasioning bodily harm, a serious example of the charge. Not the most serious, but certainly serious enough. As a matter of law, section 9 of the Penalties and Sentences Act makes it clear that a Court does not have to regard a sentence of imprisonment as a last resort. I also [indistinct] the writer, it does not have to be a first response either. There is no mandate about the time to be spent in prison for such an offence, if any. It is the sentencing discretion of the Court, not fettered. I do have a number of cases to which I will return to assist the exercise of the Court’s sentencing discretion.
Suffice to say that I do think a period of imprisonment of some description is appropriate. Mr Sioni, 24 years of age, is still a relatively young man. He does have a limited but somewhat relevant history. It is of limited aggravation, but it still has to be taken into account, but I do not consider it to be a substantial feature in the sentencing in and of itself. Mr Sioni is educated, continues his education. He does have reasonable prospects. A lot of his offending behaviour, he says, he identifies as a result of his own personal struggles with feelings of self-worth, loneliness, depression and anxiety, and there is some medical evidence in support of that. Unfortunately, there is no updated information to assist the Court, but I do accept that those were factors relevant to his conduct at the time. Of course, the self- intoxication by both alcohol and illicit and drugs is no mitigation at all.
The further offending – I will touch upon very briefly – involves some further emotional abuse of [Ex-girlfriend Victim 2] in the form of text message threatening self-harm and other threats. They are by themselves significant breaches of a domestic violence order, but I do intend to adopt the approach of a head sentence. Pre-sentence custody is available to be declared, and given the current state of the legislation, section 157A, I believe it is, the 57 days: whilst that only applies to the latest offences, can actually be applied also the assault occasioning bodily harm which I intend to do. It is Mr Sioni’s first experience of imprisonment. He is still a relatively young man. Not a youthful first offender in that sense, but still with prospects of rehabilitation that must be given priority by the Court.[24]
[24] Exhibit Tr1, G2, p 33, lines 1-47; p 34, lines 1-19.
The Applicant was sentenced to 18 months imprisonment for the Assault occasioning bodily harm offence. He was released on parole.[25]
[25] Exhibit Tr1, G2, p 27-28.
Separately, the Applicant was also convicted on 23 June 2022 for Contravention of domestic violence order (aggravated offence), also in relation to Ex-girlfriend Victim 2. In his sentencing remarks, his Honour Magistrate Saggers set out the background facts to, and nature of, the Applicant’s offending:
HIS HONOUR: Your relationships with women are bad, very bad.
DEFENDANT: Yes. I understand that, your Honour, and I am committed it to getting the help that I need to help me and help others.
HIS HONOUR: You have to, because if you do not, the affect that you are having on other people is significant. I am told that there was a different lady for the offences that you first got in trouble for, that is, distributing the images and breaching the domestic violence order. You got two years’ probation for that and as well as some community service. But you breached that and then you were sentenced to three months jail, suspended for 18 months, and that was for a different lady, as I said. Then, for this lady, there was as serious incident, obviously, on the 5th of June ’21, you went to Court on the 10th of February 2022 where you received 18 months.
You…received parole that day. You had been in jail for about 57 days. This occurs while you are on parole and also in circumstances where the protection order that had been changed – so you went to Court on the 10th of February. You got a big sentence. You got 18 months and they changed the domestic violence order, said you are not to have any contact with [Redacted] at all. You are not to go within 50 metres of her.
DEFENDANT: Yeah.
HIS HONOUR: But you breached that order and you breached it in a way where what you said is very serious. You have been in jail again now. You have been in jail since the 6th of April and I take that into account. The way I am going to structure the sentence would be like if it was originally from the 10th of February and you got 21 months and you are eligible for parole after serving six months. So the way I am going to structure the sentence is this: you are going to get another three months on top and you are eligible to apply for parole on the 6th of August.
DEFENDANT: Understand, your Honour.
HIS HONOUR: All right? So you need to get all those things together so you can apply for parole. If you have got family willing to assist you, you need to let them know. But you need to get yourself sorted.
DEFENDANT: Yeah.[26]
[26] Exhibit Tr1, G2, p 30, line 19-47, p 31, lines 1-10.
The Applicant was sentenced to three months imprisonment (cumulative) for the Contravention of domestic violence order (aggravated offence) offence.[27]
[27] Exhibit Tr1, G2, p 27-28.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. I should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires me to give consideration to:
(a)The nature and seriousness of the Applicant’s conduct to date; and
(b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
I will now consider each in turn.
The Nature and Seriousness of the Applicant’s Conduct
When assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I must have regard to the following relevant matters in paragraph 8.1.1 of the Direction:
(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) ....:;
(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;
…
I have already set out the Applicant’s offending history and do not propose to recite it here.
The Respondent contends[28] and the Applicant readily concedes[29] that the Applicant’s offending is of a “very serious” nature. In my view, these submissions can be easily accepted. The Applicant has been found guilty of offending that has been violent and sexual in nature and have been against two different female intimate partners. In relation to the same, the Respondent says:
The Applicant's offending therefore meets all three descriptions set out in paragraph 8.1.1(1)(a) for offending that is considered very serious by the Australian government and community. In particular, sexual offences rank amongst the most serious in the hierarchy of criminal offences. They are repugnant to ordinary members of the Australian community and are fundamentally contrary to Australian values. Consistently with that societal expectation, Direction 99 makes it clear that the Australian community has no tolerance for those who would sexually offend against any other person. Any sexual offending ought to be seen as especially serious and ought to weigh heavily on the Tribunal in the application of Direction 99.
The seriousness of the crimes is further reflected in the sentences imposed by the courts, which have included imprisonment ranging from 3 to 18 months. However, the Respondent notes that as per paragraph 8.1.1(1)(a) of Direction 99, violent/sexual crimes, crimes of a violent nature against women, and acts of family violence, are considered to be very serious by the Australian government and community, regardless of the sentence imposed.
The Applicant also has a history of repeated offending from 2018 to 2022, despite formal warnings and reprimands of his behaviour through court appearances and convictions. The repeated offending includes breaches of protection orders and domestic violence orders and offences committed whilst he was on parole. In the most recent sentencing remarks on 23 June 2022, Magistrate Saggers highlights that the Applicant had breached the domestic violence order and breached it in a way that was "very serious."[30]
[28] Exhibit R1, p 8, para 18.
[29] Transcript, p 85, lines 31-34.
[30] Exhibit R1, p 8-9, para 18-20.
The Respondent’s submissions are well and truly not contested by the Applicant. Accordingly, my finding is that the Applicant’s acts of violence engage sub-paragraph 8.1.1(1)(a)(i) in favour of a finding that the nature of the Applicant’s conduct is “very serious”.
Separately, the following sub-paragraphs are also relevant in the instant case, reflecting that the Applicant’s offending has been of a “serious” nature.
Paragraphs 8.1.1(1)(d) and (e) look to the frequency of the Applicant's offending and any trend of increasing seriousness, and the cumulative effect of the Applicant’s repeated offending, respectively. In considering these two issues, it is important to note the following:
·the Applicant has been found guilty of nine offences over a five-year period, that is offending in February 2017, February 2018, April 2019, June 2021, December 2021, and April 2022.[31] In my view, this is frequent offending over the relevant period;
[31] Exhibit Tr1, G2, p 27-28.
·the nature of the Applicant's offending has obviously increased in seriousness over his offending career:
ofrom constructive violence in the case of the Distribute prohibited visual recordings domestic violence offence (in 2018) to actual physical violence in the case of the Assault occasioning bodily harm offence (2021);
ofrom a Contravention of domestic violence order (in 2018) to multiple Contravention of domestic violence order (aggravated offence) offences (2021 and 2022); and
ofrom Failure to appear in accordance with an undertaking offence (in 2020) to more serious Breach of probation order and Breach of bail offences (in 2022);
·the increasing seriousness of the Applicant’s offending is also reflected in the Courts’ progressively more severe sentencing regime imposed on the Applicant for his offending, ranging from fines and community service orders (in 2018) to terms of imprisonment (in 2020 and 2022). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy,[32] reflecting the objective seriousness of the offences involved;
·the Applicant’s offending career demonstrates several cumulative effects:
othe Applicant has demonstrated a general contempt for, and failure to comply with, the requirements of lawful Australian authority, including committing very serious offences while on bail or on parole, failing to appear in accordance with an undertaking, and repeatedly breaching domestic violence orders;
othe Applicant appears to have taken advantage of the leniency of Australian Courts by committing crimes while on conditional liberty;
othe progressive evolution of the sentencing regime imposed upon the Applicant demonstrates that the Applicant failed to experience any deterrent or dissuading effect of the progressively more severe sentences (including imprisonment) that have been imposed on him. The Applicant has received a wide ambit of sentences. He appears to have taken nothing from the non-custodial and custodial nature of the sentences imposed during the abovementioned offending. And in as much as the Applicant was not deterred by a prison sentence, that enhances the seriousness of his offending.
othe Applicant’s offending must, on any reasonable analysis, be found to have caused psychological distress and/or physical injury for his ex-girlfriend victims, and in the case of Ex-girlfriend Victim 1’s family and friends, caused emotional distress; and
othe Applicant’s domestic violence against multiple women demonstrates a clear lack of respect for women and the broader community.
·Overall, I find that although the Applicant's offending is serious when viewed in isolation, it should be viewed as very serious when viewed cumulatively.
[32] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
Conclusion about the nature and seriousness of the Applicant’s offending

I have applied each of the relevant sub-paragraphs in paragraph 8.1.1(1) of the Direction. With reference to the same, I am of the view that the totality of this Applicant’s unlawful conduct in Australia can be readily characterised as “very serious”.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that, in considering the risk to the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that, in considering the risk to the Australian community, I must have regard to the following relevant factors on a cumulative basis:
(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the non-citizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence…
Paragraph 8.1.2(1) & (2)(a) - The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Sub-paragraph 8.1.2(2)(a) requires an assessment of the nature of harm to an individual or the Australian community were the Applicant to engage in further criminal or other serious conduct. The Respondent contends that the harm that would be caused to the Australian community, including physical and psychological harm, should the Applicant continue to offend in the manner in which he has to date, would be substantial:
The Tribunal is entitled to have regard to the damage already caused by the Applicant's offending in assessing what future harm may be occasioned by the repetition of that conduct. Much of this has been detailed above. However, there is nothing in the Direction or in any authority that suggests the Tribunal is limited, in its assessment of the potential magnitude of future harm, to assessing the harm that has been caused previously.
The Applicant's offending has been of a violent and/or sexual nature, towards women, and constitutes family violence. To date, the Applicant's offending has caused significant physical and psychological harm to his victims. The sentencing remarks of Magistrate Young on 10 February 2022 in relation to the assault state that in addition to [ex-girlfriend victim 2] physical injuries, which required hospital treatment, "the mental and psychological harm that [the Applicant] has visited upon her troubles her to this day".[33]
[33] Exhibit R1, p 10, para 27-28.
The Respondent’s submits (and I find) that the nature of the harm inflicted, if the Applicant were to reoffended in a similar manner to his past offending, would be unacceptable.
In my view (and I find) that the type of the harm posed, and the type of the harm already visited, is so serious that any material risk that the Applicant may again commit similar offending is one which is completely unacceptable.
Paragraph 8.1.2(2)(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 Applicant reoffending
The Applicant contends that he has a low risk of reoffending:
MEMBER: And in terms of … the risk of your reoffending, would you say that there is a low risk, a medium risk, or high risk of you engaging in the same conduct for which you were… found guilty and went to prison for….
APPLICANT: I’m confident that with the counselling, with the therapy that I’ve gotten, without having to worry or having to try and fix the issues myself and get the proper guidance I’ve got, and the counselling and therapy, I believe that and I’m 100 per cent confident I’m a low risk. [34]
[34] Transcript, p 65, lines 40-43, 45-46; p 66, lines 1-2.
In the Applicant’s personal circumstances form (PCF), the Applicant states that his offending has mainly been caused by alcoholism:
where I am highly intoxicated and blacks [sic] out. This mixed with my mental health put me in a compromising situation where I am unaware of my emotions and thoughts, and how my behaviour may be misunderstood as violent.[35]
[35] Exhibit, Tr1, G2, p 72.
In response to the question on the PCF “provide information on what you believe to be the risk of you offending in the future, and supporting reasons”, the Applicant said the following:
I acknowledge that my mental health has affected not only me but my previous relationships. I am aware that alcohol is a trigger due to my compromising [sic] mental health, and how it affects my relationships. This is supported in my statements in court and overall situation in my offending. Mental health and alcoholism are personal issues and are risks, however, it is a process I am tackling to seek the help and support by a professional.[36]
[36] Exhibit Tr1, G2, p 72.
The Applicant’s written statement unpacks the underlaying causes of the Applicant’s alcoholism, as encompassing depression, anxiety, and PTSD:
I…acknowledge that my unhealthy consumption of alcohol was due to the mismanagement of my diagnosed mental health disorders of depression, anxiety, and PTSD, and I was engaged in a cycle of alcohol abuse as I was unable to cope with my emotions in a healthy manner. I was unaware that I had a substance abuse addiction before my incarceration as my social circle all consumed alcohol regularly, however I was unable to abstain from alcohol even when it was causing significant issues in my relationship and life.
…
The addition of the excessive consumption of alcohol to my mental health disorders and my inability to cope with my emotions led to the escalation of my behaviour from problematic, to abusive.
…
Throughout therapy I have also recognised how my experiences throughout my childhood in Papua New Guinea had significantly shaped by life script and my perception of what constitutes acceptable behaviour.
My childhood in Papua New Guinea consisted of constant exposure to domestic violence and physical violence within my family home and the community. Throughout my formative years, I witnessed extreme physical violence between my parents, which significantly shaped my conception of how a romantic relationship should function. My mother also utilised severe physical violence and verbal abuse to discipline me and my brother as children, her constant verbal beratement led to me developing a low level of self-worth from a very young age. I was also exposed to heavy alcohol abuse at a young age from members within my family, which shaped my attitude surrounding the consumption of alcohol throughout my childhood. I was also physically disciplined at school as a young child and witnessing children being abused by adults was a daily occurrence throughout my childhood. I did not realise the affect that these experiences had upon the development of my brain, my perception of societal norms or the affect it had upon my behaviour until I began attending therapy. I now understand it is my responsibility to address my trauma and PTSD, it is my responsibility to reshape my conception of what constitutes a healthy relationship, and it is my responsibility to end the cycle of abuse.[37]
[37] Exhibit A1, p32-33.
The Applicant has been engaging with a psychologist, Mr Greg Hutcheon, since December 2022, while in immigration detention, attending six sessions over a three-month period. The Applicant has filed a “brief psychological report” from Mr Hutcheon, which is described as having been compiled by the treating psychologist as a summary of assessment findings and treatment offered to the Applicant:
1. Orientation
…
Malcolm Sioni was a 25-year-old male, referred…on 12th December 2022 for the assessment and treatment of anxiety and low mood. The information contained in this report is based upon the client’s self report, psychological assessment scores and clinical observation.
2. Presenting Problem
…
Malcolm states that he has been experiencing symptoms of anxiety and depression since he was 20 but did not seek any help initially. In 2021 he saw a GP who diagnosed depression and anxiety and he started on an anti-depressant, but it did not help. He saw a psychiatrist in November 2021 who diagnosed, anxiety, depression, and PTSD. He was referred to the psychiatrist via PAH after having jumped (while intoxicated) into the Brisbane River to complete suicide. He was commenced on Fluoxetine 20mg but self-ceased as he felt it made him a zombie. He had an episode of self-harm by cutting his wrist superficially at around the same time.
He first tried alcohol at age 15 and drank heavily as an adult on weekends which was increasing in frequency until his suicide attempt. He first tried Cannabis at 18 and smoked once a month before increasing in frequency (once a week) during the period of covid isolation. He feels that this helped him manage his anxiety and he never used other substances.
…
Currently reporting that his sleep is ok (melatonin once a week), and he is coping ok but continues to have underlying anxiety. He denies pervasive low mood or intrusive memories.
3. Brief Assessment Results
DASS 21 (Depression, Anxiety & Stress Scale)
Depression: 5 – mild
Anxiety: 7 – mild
Stress: 12 – moderate
4. Treatment Plan and Progress
Malcolm presented as strongly motivated to engage in therapy and stated that he wanted to better understand how anxiety, mood and stress impacted him and had contributed to his forensic and substance use issues.
He agreed to utlise a narrative approach as well as focussing on strategies to manage mood and anxiety with a focus on relapse prevention and values. He was particularly interested in examining his life experiences and how this has affected his life, relationships, and depression and substance use issues.
…
Malcolm engaged very well in therapy and demonstrated considerable gains in processing and understanding his style of communication and interpersonal relationships and utilising this to set realistic goals for continued improvement in his life once released from detention.
While initially he found his domestic violence charges very difficult to open around due to shame, he was able to start addressing these events and hopes to continue to address this in group DV programs he is engaging with.
He has lined up ongoing supports post eventual release and is highly motivated to remain engaged in treatment and supportive programs and activities.
5. Recommendations for Future Management
Malcom engaged well in appointments in discussing his values and future goals. He has indicated that he wishes to continue with psychology in the future… [38]
[38] Exhibit A1, p 67-71.
At the hearing, the Applicant explained his rationale for engaging with Mr Hutcheon while in immigration detention, as being mostly for [his] mental wellbeing and …mental health:[39]
I believe the reason why I’ve engaged with Greg Hutchin was because I’ve never really engaged in proper mental health. I’ve always noticed that it was there and that’s why I have a drug and alcohol abuse, because I have all these things that stem down to one thing, which is from my mental health which stems down from my trauma growing up. So being 26 now and being in jail and reflecting, reconnecting with God and coming into detention and having the opportunity to actually engage with these counsellors and therapy, is benefit for me and also towards the Australian community. For me to understand my behaviour and reflect with the time that I have and use every resources that I have in the detention centre to seek the help that I can get. That is why I have engaged with Greg because he offers a mental health support while I’m in detention, so that I can keep that ongoing mental health wellbeing while I’m in detention.[40]
[39] Transcript, p 16, line 7.
[40] Transcript, p 15, lines 9-21.
Also while in immigration detention, the Applicant engaged with Ms Linda Washburn, a drug and alcohol abuse councillor over eight sessions.[41] The Applicant admitted to alcohol, smoking cigarettes, marijuana, MDMA and cocaine use:[42]
So growing up in my early 20s and being surrounded by the environment that I was in, partying and drinking was acceptable. So when we had gone out, gone to the clubs, we would be surrounded by that type of environment and people doing that. And being drunk and around that environment made me engage in that type of behaviour.[43]
[41] Transcript, p 17, lines 1-2
[42] Transcript, p 16, lines 11-12, 17-32.
[43] Transcript, p 16, lines 17-22.
Based on the materials before the Tribunal, the Applicant appears to have sought out a range of community organisations for counselling and education across drug and alcohol abuse, domestic violence, healthy relationships and related matters, among other topics while incarcerated or in immigration detention:

Date Organisation Engagement type Course title Course type Completed/ Outcome

04.02.2023 – 04.03.2023 Metro North Health Telephone conference sessions Your CALL program Time-limited telephone program of 3 sessions focused on supporting individuals regarding drug and alcohol recovery Final session: 04.03.2023

29.05.2023 Better Man Initial contact / outreach Better Man Client outreach on course site and completion of “Action Plan” Completion of “Action Plan” 29.05.2023

12.12.2022 – 29.04.2023 International Health and Medical Services Individual counselling session - Treatment sessions with treating psychologist which culminated in a psychological report 17.04.2023 (final session)

03.04.2023 - 05.06.2023 Universal Class Online course - Self-paced online modules covering mental health issues, drug and alcohol rehabilitation and domestic violence Final (and most recent) module on 05.06.2023

07.06.2023 Interrelate Initial contact / outreach Respectful Man program Applicant initial outreach and correspondence with program manager Not commenced / completed

27.06.2023 Safe & Equal Online course Family Violence Foundations Self-paced online modules covering the prevalence of domestic violence, defining domestic violence, and the impacts of domestic violence Completed on 27.06.2023

03.07.2023 Anglicare Initial contact / outreach Living Without Violence 18-week program, comprised of course that address safety and accountability with respect to domestic violence-related behaviour
Not commenced / completed.

Placed on waiting list: 3 July 2023.

14.06.2023- 03.07.2023 Wiser Ways (Life Supports) Interactive course Anger Management Domestic Violence Program Course that consists of five modules, containing psychoeducational material about moving to safer and respectful relationships Final module: 03.07.2023

20.06.2023 – 04.07.2023 The Link Foundation AOD Community Programs Online modules + Individual counselling session Alcohol and Other Drugs Recovery Program Missing Links
Series of Zoom “SMART recovery meetings” attended by Applicant and conducted by therapist, covering drug rehabilitation and involving interactive participant involvement

Applicant also attended an individual counselling session that canvassed progress made and the therapeutic journey

Final online SMART meeting completed on 04.07.2023

Individual counselling session completed on 29.06.2023

15.05.2023-26.06.2023 Drug ARM Initial contact / outreach Community and Family Support Services treatment program Applicant received confirmation that is on the waiting list for Drug ARM support Last confirmation 26.06.2023

05.07.2023 Serco Individual counselling session - Discussion of completed courses and current support regime, as well as future plans and prospects 05.07.2023

05.07.2023 Lives Lived Well Applicant outreach, intake process and first session - Session with counsellor to explore mental health issues related to trauma and abuse Applicant noted that first session was completed on 07.07.2023

Overall, the Applicant says that throughout his incarceration and detention, he has engaged professional mental health support and counselling to address the issues underlying his mental health challenges:
Through therapy and education, I have been able to learn healthy mechanisms to cope with my mental health disorders that do not include the consumption of alcohol. I have implemented significant lifestyle changes to my daily routine while I have been detained such as exercising daily, consuming a healthy diet, and maintaining a healthy sleeping schedule. I have also been attending regular appointments with professional mental health support and drug and alcohol counselling, which I will continue upon my release from detention to maintain my mental wellbeing. I have put significant effort into improving my emotional intelligence, intrapersonal intelligence, and interpersonal intelligence to understand the impact my emotions have upon my mental wellbeing, my behaviour, and the affect my behaviour has upon the emotions of others. I have also learned anger management techniques such as exercises in self-awareness to identify my emotional triggers before they manifest into a physical reaction that may cause harm to others. The ability to self-regulate my emotions and communicate them effectively will significantly improve my intimate relationships in the future.[44]
[44] Exhibit A1, p 32.
The Respondent contends that the Applicant has a moderate to high risk of reoffending. The Respondent’s SFIC frames their position on the Applicant’s recidivist risk as follows:
The Applicant has identified that alcohol abuse and his mental health led to his previous offending. The Respondent acknowledges that the Applicant has provided some evidence regarding his completed rehabilitation efforts such as engaging in counselling and courses to address his alcohol and mental health issues. This includes:
(a) Brief Psychological Report by Greg Hutcheon (29 April 2023);
(b) Certificates of Completion from Universal Class for courses including Anger Management 101, Drug and Alcohol Abuse 101, Conflict Resolution 101, and Healthy Relationships and Problem Solving Strategies (4-5 April 2023); and
(c) Letter from Metro North Mental Health - Alcohol and Drug Service confirming that the Applicant attended three appointments (the maximum number of appointments) in the YOUR CALL program on 4 February 2023 to 4 March 2023.
However, the Respondent submits that minimal weight can be given to the Applicant's rehabilitative activities when considering his risk of reoffending. Most of the activities have been engaged in very recently (in the past few months), have not been sustained for a very long period of time, and the Applicant's progress has been untested in the community.
The Applicant has not provided any expert evidence from a psychologist or other health practitioner that directly speaks to his risk of reoffending. Although the Brief Psychological Report indicates that the Applicant engaged well in the psychology sessions and presents as highly motivated to remain engaged in treatment and supportive programs and activities, it does not provide any direct opinions in relation to the Applicant's risk of reoffending. Further, the report was prepared only recently on 29 April 2023 and so the effects of the Applicant's willingness to engage with rehabilitation mentioned in the Brief Psychological Report remains untested in the community.[45]
[45] Exhibit R1, p 11, para 32-33; p 12, para 34.
The Respondent also submits that this much of the Applicant’s evidence[46] around his enrolment (or prospective enrolment) in rehabilitative counselling and related programs is simply just that; evidence of enrolment or prospective enrolment, rather than evidence of progress or completion of the same. While the Respondent concedes that this evidence shows the Applicant's willingness to engage in rehabilitative activities, the Respondent says the evidence should be afforded minimal weight insofar as it does not evidence progress or completion of the courses.[47]
[46] Including contained in Exhibit A1.
[47] Exhibit R1, p 12, para 35.

The Respondent furthermore contends that the Applicant has demonstrated a predisposition for offending which has survived any rehabilitative intervention that has been offered by society to help get the Applicant back on track. In the Respondent's submission, this pattern indicates an increased risk that the Applicant will reoffend in the future. The Respondent points to the absence of tested evidence of rehabilitative progress and in the context of his repeated offending, the Respondent contends that the Applicant has a moderate to high risk of reoffending.[48]
[48] Exhibit R1, p 12, para 36-37.
During the Applicant’s cross-examination, the Respondent sought to impugn the Applicant’s evidence as to recidivist risk and substantiate the Respondent’s submissions about the same as set out in their SFIC.
First, although the Applicant has undertaken education across drug and alcohol abuse, domestic violence, healthy relationships and related matters, the quality of some courses was called into question, with the admission that a number were video-based and involved the Applicant simply watching videos and reading materials,[49] rather than being face-to-face or otherwise live online.
[49] Transcript, p 14, lines 13-26.
Second, where the Applicant has participated in live online counselling sessions, such as with psychologist Mr Andrew De Ambrosis for an anger management program, the engagement was limited in duration and completed over a compressed time period (e.g., several one hour sessions over a two-week period, as in the case of Mr De Ambrosis).[50] The same limited duration sessions over a compressed time period was also a feature of the Applicant’s participation in SMART Recovery – substance abuse counselling sessions.[51]
[50] Transcript, p 18, lines 2-46, p 19, lines 1-23.
[51] Transcript, p 19, lines 34-47, p 20, lines 1-26.
Third, while the Applicant has engaged with a range of community organisations for counselling, much of the material filed by the Applicant about the same evidences attempts to seek out services only, such as being placed on a waiting list, rather than actually attending courses or sessions.[52]
[52] Transcript, p 17, lines 21-44.
Fourth: the Applicant has a history of representing to a decision-maker that he will engage in drug and alcohol rehabilitation and receiving leniency as a result, only to fail to do what he promised:
MR KIM: For [the assault occasioning bodily harm] offence you were sentenced to an imprisonment of 18 months. Is that correct?
APPLICANT: That is correct.
…
MR KIM: But you were released immediately on parole; is that correct?
APPLICANT: That is correct.
MR KIM: And why were you released on parole immediately, in your understanding?
APPLICANT: In my understanding, I was released on parole because it was like 57 days or a third of your sentence you can be eligible for parole, and I was given court-ordered parole on my hearing date.
MR KIM: Yes, and you were also released, I understand, because of your intention to rehabilitate.
…
MR KIM: Line 5…I’ll read that out:
I’m going to err on the side of leniency given his insight, given that he’s not going to be able to advance his rehabilitation in particularly meaningful ways whilst remaining in custody. He has intentions to do so and has evinced those intentions by taking some actions to the extent that he can.
MR KIM: So you were given a lenient sentence once again because of your circumstances and your intention to seek treatment; is that right? Would you agree?
APPICANT: Yes, I did suggest to the court and to my lawyer that I was going through my mental health and my drug and alcohol abuse, and that I was - as I’ve said, I was going to engage with rehab.
…
MR KIM: …Did you engage in rehabilitation after that?
APPLICANT: No.
MR KIM: Why not?
APPLICANT: Because when I was released I had no proper support system in place. I didn’t seek a support system or my friends or family to provide for me…
…
MR KIM: But at the time you had expressed an intention to do some rehabilitation?
APPLICANT: That is correct[53]
[53] Transcript, p 41, lines 40-47; p 42, lines 1-5, 11-23; p 43, lines 24-28, 46-47.
Fifth: the Applicant has a history of representing to a decision maker that he will engage in rehabilitation and receiving leniency as a result, only to reoffend:
MR KIM: Just after the assault, you were - there was a domestic violence order made against you in relation to [Ex-girlfriend Victim 2], wasn’t there?
APPLICANT: There was a domestic violence order in place, yes.
…
MR KIM: Yes and do you recall what that required you to do?
APPLICANT: I can recall that there was a no contact as well.
MR KIM: Did you breach that order?
APPLICANT: Yes, I did.
MR KIM: How did you breach that? Well, I might just say this, on page 34 the court has said at line 10, starting with the words, ‘The further offending’:
The further offending I will touch upon very briefly. It involved some further emotional abuse of [Ex-girlfriend Victim 2] in the form of a text message threatening self-harm and other threats. They are, by themselves, significant breaches of a domestic violence order.
MR KIM: I’ll just stop there. What threats did you make?
APPLICANT: I cannot recall what threats I did send, however, I was going through depression, and I attempted suicide. Once in 2018 and the second one in 2021. This was because of the guilt and shame and the stress and mental health that has affected me, and my use of drug and alcohol to suppress as a coping mechanism. So I may have messaged and said that I was going to kill myself.
MEMBER: Sorry, ‘may have’ or ‘did’?
APPLICANT: I did.[54]
[54] Transcript, p 44, lines 12-36.
Mr Mitchell Sioni, the Applicant’s brother, gave evidence before the Tribunal. I found Mr Sioni to be a credible and compelling witness. His evidence was that he was aware of the Applicant’s offending, was willing (and had the capacity) to provide accommodation, and financial support to the Applicant, as well as encourage his rehabilitation and recovery journey, including introducing him to mental health counselling services.[55]
[55] Transcript, p 73, lines 12-33, p 75, lines 44-46, p 76, lines 1-18.
The Tribunal received some limited written lay evidence from the Applicant’s friends, including support letters from Abhay Singh,[56] Courtney Saeed,[57] Julie Joshua,[58] Kyle Trajcevski[59] and Tristan Bray.[60] These letters, generally, address some background to the Applicant’s offending (without specifically setting out the nature of the offending) and speak to his good nature and character but provided little to no insight into the Applicant’s reoffending risk – I give these letters some weight in relation to the Applicant’s character.
[56] Exhibit A1, p 28.
[57] Exhibit A1, p 29.
[58] Exhibit A1, p 24.
[59] Exhibit A1, p 27.
[60] Exhibit A1, p 25-26.
The Tribunal also received support letters from the Applicant’s family, including his brother, Mitchell Sioni,[61] and his father’s former partner, Sharon Tanaka.[62] Mr Sioni has pledged future support to the Applicant. He indicates that the Applicant is a person of good model character and integrity and that his recent actions were completely out of character. He also states that the Applicant is now on a path of self-improvement and growth.[63] Ms Tanaka says that the Applicant may have had a fall from grace, but he is not a bad character at all. He is no threat to the community…[and] has learnt a very hard and strong lesson.[64] I give these letters some weight in relation to the Applicant’s character and recidivist risk.
[61] Exhibit A1, p 30; Exhibit A2 p 2.
[62] Exhibit A1, p 22-23.
[63] Exhibit A1, p 30.
[64] Exhibit A1, p 22-23.
The Respondent submits that the Applicant's offending is so serious that any material risk of reoffending ought to be considered unacceptable.[65] In circumstances where the evidence indicates that the Applicant is at least a moderate risk of reoffending, the Respondent contends that a proper application of the calculus of risk suggested by Mortimer J in Tanielu ought to result in the Tribunal finding that the risk posed by the Applicant is one which is unacceptable.[66] I agree with these submissions.
[65] R1, p 10, para 29.
[66] R1, p 11, para 30; Tanielu v Minister for Immigration and Border Protection [2014] FCA 673, [89]-[104].
Conclusions about risk
Based on the relevant information before me, I draw the following conclusions:
·the type of the harm posed by the Applicant, and the type of the harm already visited, is so serious that any material risk that the Applicant may again commit similar offending is one which is completely unacceptable;
·while I accept that the Applicant genuinely believes that he poses a low risk of reoffending based on what he sees as considerable efforts to engage in (and seek to engage in) therapy, counselling and education about, or in relation to, the causes underlying his offending, there is limited credible independent evidence of his reoffending risk;
·given the seriousness of the Applicant’s offending over a number of years, I do not accept that undertaking limited duration therapy, counselling and education about the causes underlying his offending, over a compressed time period while in a controlled environment, constitutes sufficient and durable evidence of rehabilitation by the time of this decision;
·the Applicant’s rehabilitation has not been tested in the uncontrolled environment within the community with the added daily pressures of living, or in a new relationship; and
·overall, in the absence of tested evidence of rehabilitative progress and in the context of his repeated offending, I find that the Applicant has a moderate risk of reoffending.
Conclusion: Primary Consideration 1
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found that the nature and seriousness of the Applicant’s conduct to date has been, very serious;
(b)I repeat my finding that were the Applicant to reoffend, the nature of the harm to individuals or the Australian community would be substantial and would involve physical and psychological harm to the victim; and
(c)I have assessed the Applicant’s recidivist risk of engaging in further criminal or other serious conduct (upon return to the community) as moderate by taking into account (1) available information and evidence before me informative of such risk and (2) the dearth of any expert and independent clinical written evidence speaking to the levels of rehabilitation achieved by this Applicant by the time of this decision.
My analysis of the material before the Tribunal leads me to the finding that this Primary Consideration 1 carries a heavy level of weight against revocation of the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3) In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a) the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
the extent to which the person accepts responsibility for their family violence related conduct;
the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status, should the non-citizen engage in further acts of family violence.
Paragraph 4(1) of Direction 99 defines family violence to mean violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Paragraph 4(1)(b) of Direction 99 provides examples of family violence relevantly including sexual assault or other sexually abusive behaviour.
It was common ground between the parties that the Applicant's offending constitutes family violence as per paragraph 4(1) of Direction 99, as it was committed against women with whom the Applicant was in a relationship - Ex-girlfriend Victim 1 and Ex-girlfriend Victim 2.[67] I accept the parties’ submissions and find that this Primary Consideration 2 is relevant to the determination of the instant application because the Applicant has been convicted of (or otherwise found guilty of) offences that involve family violence:
·Distribute prohibited visual recordings domestic violence offence, Contravention of domestic violence order, Breach of Probation Order against Ex-girlfriend Victim 1;[68] and
·Assault occasioning bodily harm and Contravention of domestic violence order (aggravated offence) against Ex-girlfriend Victim 2.[69]
[67] Exhibit R1, p14, para 46; transcript, p 86, lines 36-45; p 87, lines 1-6.
[68] Exhibit Tr1, G2, p 26.
[69] Exhibit Tr1, G2, p 26.
I will address each of the factors in the relevant sub-paragraphs in paragraph 8.2(3) in turn.
Paragraph 8.2(3)(a) requires me to consider the frequency of the Applicant’s family violence conduct and/or whether there is any trend of increasing seriousness to it. I readily find that the Applicant’s conduct was frequent and there was a trend of increasing seriousness. The Applicant’s criminal record indicates repeated offending, despite prior formal rebukes. Most pointedly, his offending includes several breaches of domestic violence orders and protection orders. The Applicant committed crimes against two women whom he was in a relationship. As the Respondent points out, the Applicant had already been convicted of crimes against the first woman before he engaged in the offences against the second woman.[70] The Applicant’s history of domestic and family violence demonstrates an obvious increase in seriousness - starting with the offence of distributing prohibited visual recordings and increasing to assault occasioning bodily harm.
[70] Exhibit R1, p 15, para 49.
Paragraph 8.2(3)(b) requires me to address the cumulative effect of repeated acts of family violence. The Applicant committed family violence over the period of 2018 to 2022. I agree with the Respondent’s contention that any one of these offences would be considered serious if in isolation. However, such offending must be considered especially serious when viewed together.[71] In my view, this offending heavily weighs in the context of this Primary Consideration 2.
[71] Exhibit R1, p 15, para 51.
Paragraph 8.2(3)(c) requires me to consider the nature and extent of rehabilitation achieved by the time of my decision since the Applicant’s last known act of family violence. In particular, I must consider (1) the extent to which the Applicant accepts responsibility for his family violence related conduct; (2) the extent to which the Applicant understands the impact of his behaviour on the abused, and the witnesses of that abuse (particularly children); and (3) efforts to address factors which contributed to his conduct.
Although the Applicant has expressed remorse and has recently engaged in rehabilitative activities, his progress remains untested outside a controlled environment. The Respondent says that the Applicant has shown a history of reoffending after expressions of remorse.[72] The Respondent cites the Applicant’s expressions of remorse having been accepted by Magistrate Young in the sentencing remarks of 10 February 2022, with the Applicant subsequently breaching a domestic violence order a few months afterwards.[73] The Respondent further says that such reoffending makes it difficult to accept expressions of remorse or statements taking responsibility at the present time.[74]
[72] Exhibit R1, p 15, para 52.
[73] Exhibit R1, p 15, para 52.
[74] Exhibit R1, p 15, para 52.
The Applicant’s evidence before the Tribunal was that he accepted responsibility for this family violence offending against both Ex-girlfriend Victim 1 and Ex-girlfriend Victim 2. The Applicant was also able to articulate the impact of his offending on his victims. [75] I am satisfied that the Applicant both accepts responsibility for, and understands the impact of, his family violence offending.
[75] Transcript, p 40, lines 37-46; p 41, lines 1-38.
Based on the materials before me:
·I find that, for the purposes of this Primary Consideration 2, the Applicant has perpetrated family violence, against Ex-girlfriend Victim 1 and Ex-girlfriend Victim 2;
·I consider (and find) that the Applicant’s family violence offending must be characterised as “very serious” family violence conduct, noting that even the Applicant acknowledges the same;[76]
·I do not agree with the Respondent’s submission that the Applicant’s history of reoffending reduces the credibility of his claims of remorse for his conduct; and
·I do, however, accept (and find) that it remains to be seen whether the Applicant’s recent rehabilitative activities (as set out above) will be effective in an uncontrolled environment and/or in a new relationship. To this end, I repeat what I have already said, given the seriousness of the Applicant’s offending over a number of years, I do not accept that his undertaking of limited duration therapy, counselling and education about the causes underlying his offending, over a compressed time period while in a controlled environment, constitutes sufficient and durable evidence of rehabilitation by the time of this decision.
[76] Transcript, p 86, lines 36-45, p 87, lines 1-6.
Conclusion: Primary Consideration 2
I find that this Primary Consideration 2 weighs heavily against revocation of the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
The Direction requires decision-makers to have regard to the strength, nature and duration of an Applicant’s links to the Australian community. The requisite considerations to be addressed are contained in paragraph 8.3:
(1) Decision-makers must consider any impact of the decision on the non-citizen’s
immediate family members in Australia, where those family members are
Australian citizens, Australian permanent residents, or people who have a right
to remain in Australia indefinitely.
(2) 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.
(3) The strength, duration and nature of any family or social links generally with
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.

The Applicant arrived in Australia at around 12 years old. There is no dispute between the parties that the Applicant has spent a portion of his formative years in Australia.[77] After taking up residence in Australia, he undertook schooling here from years 7 to 11 but completed year 12 in Singapore at the Australian International School. He then completed two years of tertiary education in Queensland, pursuing studies in Information Technology. The Applicant has also worked in various jobs in Australia from 2017 until his incarceration in December 2021,[78] including across the customer service, sales, and web design sectors.[79]
[77] Exhibit R1, p 17, para 56.
[78] Exhibit Tr1, G2, p 57; Transcript, p 87, lines 11-18.
[79] Exhibit Tr1, G2, p 73.
The Applicant says that his ties to Australia include his younger brother, Mitchell Sioni, cousins, aunties, and close family friends. He also says that his paternal grandfather was born in Australia.[80] Separately, the Applicant suggests that he and his father may be entitled to Australian citizenship by decent.[81]
[80] Transcript, p 87, lines 22-26.
[81] Exhibit Tr1, G2, p 60.
The evidence of the Applicant’s brother, Mitchell Sioni, indicated that the Applicant is Mr Sioni’s only direct family in Australia. Accordingly, Mr Sioni said that it would be very hard on him if the Applicant was deported, and that it would adversely affect his mental health. [82] I found Mr Sioni’s evidence to be heart-felt and sincere.
[82] Transcript, p 72, lines 45-46; p 72, lines 1-10.
Separately, the Tribunal has before it:
·support letters[83] from the Applicant’s family and friends in Australia, which generally attest to the Applicant’s relationships with family members and friends in Australia, and his ties to the Australian community (including his voluntary work); and
·other materials evidencing volunteering in the community,[84] and being a blood donor,[85] among other community activities.
[83] Exhibit A1, p 21-30.
[84] Exhibit A1, p 72-82.
[85] Exhibit A1, p 82.
The Respondent acknowledges that the Applicant's relationships with family members and friends in Australia represent ties to the Australian community. The Respondent also concedes that the Applicant has spent time contributing positively to the Australian community. In all of the above circumstances, the Respondent accepts that this Primary Consideration 3 weighs in favour of the Applicant’s case for revocation.[86]
[86] Exhibit R1, p 17-18, paras 59-61; Transcript, p 95, lines 5-7.
Overall, there is no dispute between the parties that the Applicant has strong ties to Australia. In my view, the materials before the Tribunal point to the following findings:
·the Applicant has ties to Australia due to the fact that he has family and friends who reside in Australia. In this regard, the Applicant’s closest family member, his brother Mitchell, would be adversely impacted if the Applicant were removed from Australia – this is a factor that weighs heavily in the Applicant’s favour;
·the Applicant has been ordinarily resident in Australia for most of his formative years and that obviously must carry some considerable weight; and
·the Applicant has demonstrated engagement with the Australian community (evidenced by employment and non-family social and community links).
Conclusion: Primary Consideration 3
In weighing the applicable factors, I find that Primary Consideration 3 weighs heavily, but not determinatively, in favour of revoking the decision to mandatorily cancel the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
The Direction requires decision-makers to make a determination about whether a non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision. The obligatory considerations to be addressed are contained in paragraph 8.4:
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3) If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4) In considering the best interests of the child, the following factors must be considered where relevant:
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child)
...
The Applicant does not have his own children.[87] The Applicant says that he is an uncle to minor children but [does not see those children] regularly…[and is] not regularly in their life...[88] He concedes that he does not have a lot of connection with them and they are not that close.[89] In his PCF, the Applicant said that he does not have detailed info about the minor children, including their sex, date of birth, nationality, parents’ names and address of the children.[90] The Applicant’s evidence at the hearing was that no child is dependent on him for their care, and there is no child for whom he is a father figure or plays a parental role.[91]
[87] Exhibit Tr1, G2, p 67.
[88] Exhibit Tr1, G2, p 70.
[89] Transcript, p 87, lines 43-47; p 88, lines 1-10.
[90] Exhibit Tr1, G2, p 69.
[91] Transcript, p 61, lines 8-13.
At the hearing, the Applicant initially claimed that one child, a five-year-old girl, would be adversely impacted if he left Australia. However, under cross-examination, the Applicant conceded differently:
MEMBER: So would it be fair to say that there aren’t any minor children in Australia who would be adversely effected by the decision that we have to make in this review application?
MR SIONI: There is one.
MEMBER: Who [is the child]?
MR SIONI: From my character reference. From Courtney.
MEMBER: Courtney?
MR SIONI: Yes.
MEMBER: And what is Courtney’s relationship to you?
MR SIONI: So we are friends from school – in university.
MEMBER: Yes?
MR SIONI: She has a kid.
…
MEMBER: You’re not sure of the kid’s name?
MR SIONI: No.
…
MEMBER: You don’t know the child’s name. You say that she’s five years old. And you say – how would she be adversely effected if you were to leave Australia? Would she be adversely affected if you left Australia?
MR SIONI: Sorry, could you explain what that means?
MEMBER: Sure. One of the things that we need to consider is the interests of minor children when we review your application. So what I’m seeking to do is to understand whether there are any minor children that would be negatively impacted if you were to leave Australia?
MR SIONI: …Sorry, no.
…
MEMBER: You’ve answered the question, no, there aren’t any minor children who would be adversely effected. I appreciate your… candour…[92]
[92] Transcript, p 61, lines 15-46, p 62, lines 1-23.
In closing submissions, the Applicant clarified his contentions about this Primary Consideration 4 in the following terms:
MR SIONI: Section 8.4: ‘The best interests of minor children in Australia.’ I do not have any minor children in Australia….
MEMBER: And just on that, Mr Sioni, primary consideration for the best interests of minor children, you say that you do not have any biological children in Australia. Just for my understanding, it is also the case, is it not, that there are no non-biological minor children with whom their best interests would be served by your continuing in Australia. In other words, there are no children whose interests we need to consider when we think about [under] this primary consideration?
MR SIONI: No.[93]
…
MEMBER: And primary consideration 4, the best interests of minor children – your contention is that it doesn’t apply – it’s not relevant here because there are no minor children.
MR SIONI: That’s correct.[94]
[93] Transcript, p 87, lines 28-47, p 88, lines 1-10.
[94] Transcript, p 91, lines 21-25.
The Respondent contends that this Primary Consideration 4 is not relevant to this application.[95]
[95] Exhibit R1, p 18, para 62; Transcript, p 95, lines 7-8.
Overall, I find that no child is dependent on the Applicant for their care, and there is no child for whom the Applicant is a father figure or plays a parental role. To the extent that the Applicant has limited and distant relationships with minor children in Australia, the Applicant contends that the Tribunal does not need to consider their interests for the purposes of this Primary Consideration 4, and that this consideration is otherwise not relevant in the present application.
Conclusion: Primary Consideration 4
I find that this Primary Consideration 4 has neutral weight in the instant case.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.[96]
[96] Paragraph 8.5(1) of the Direction.
The Direction makes clear that the Australian community’s expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Direction further explains:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.[97]
[97] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With reference to the propositions in paragraph 8.5(1) of the Direction, the sub-paragraph’s architecture, to my mind, can be expressed thus:
(a)the Australian community expects non-citizens to obey Australian laws while in Australia; and
(b)as a norm, where a non-citizen has either:
·breached the expectation in the immediately preceding sub-paragraph (a); or
·there is an unacceptable risk that the non-citizen will breach the expectation in the immediately preceding sub-paragraph (a);
then, the Australian community expects that the Australian Government will not allow such a non-citizen to enter or remain in Australia.
In addition to the guidance provided by paragraph 8.5(1) of the Direction, paragraph 8.5(2) of the Direction directs that a non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following relevant kind:
(a) acts of family violence; or
…
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
…
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[98] This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.[99]
[98] Paragraph 8.5(3) of the Direction.
[99] Paragraph 8.5(4) of the Direction.
The Respondent contends that the Applicant has engaged in serious conduct in breach of the general normative expectation that non-citizens will obey Australian law. Having regard to the expectations as expressed in the Direction, and in particular subparagraph 8.5(2), the Australian community would expect that the Applicant not hold a visa to remain in Australia:[100]
The Applicant has committed multiple very serious acts of family violence and offending of a sexual nature against women resulting in convictions. In the circumstances of this case, given the gravity of the Applicant's offending and his pattern of reoffending despite formal warnings, that expectation ought to be given significant weight against revoking the cancellation of the Applicant's visa.[101]
[100] Exhibit R1, p 19, para 66.
[101] Exhibit R1, p 19, para 67.
The Applicant readily concedes that his conduct did not meet the expectations of the Australian community.[102] He also willingly accepted that the Australian community expects the government to cancel his visa.[103]
[102] Transcript, p 88, lines 12-14.
[103] Transcript, p 88, lines 43-47; p 89, lines 1-10.
I accept and agree with the parties’ submissions on this Primary Consideration 5. Accordingly, I am of the view (and I find):
·the Applicant has breached the Australian community’s expectations by his criminal record, evidencing repeated breaches of Australian laws. Therefore, the Australian community, “as a norm” expects the Australian government not to allow him to remain in Australia;[104] and
·the Applicant’s conduct engages the principle in paragraph 8.5(2), because he has committed acts of family violence and serious violent crimes against women. The Australian community expects that the Australian government can and should cancel the Applicant’s visa.
[104] I have considered the guidance provided by Principles 5.2(2), (3) and (4) of Direction 99 in reaching this conclusion.
Conclusion: Primary Consideration 5
In weighing the applicable factors, I find that Primary Consideration 5 weighs heavily against revoking the decision to mandatorily cancel the Applicant’s visa.
OTHER CONSIDERATIONS
In making a decision under subsection 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; and
(d)impact on Australian business interests.
Other Consideration (a): Legal consequences of decision under section 501 or 501CA
Direction 99 provides that decision-makers must “be mindful” that unlawful non-citizens are liable to removal from Australia as soon as practicable, and in the meantime, detention.[105] Accordingly, the Tribunal is required to have regard to these legal consequences in reviewing an application.
[105] Paragraph 9.1(1) of Direction.
If the reviewable decision is affirmed, the legal consequence for this Applicant is that he would be removed from Australia and deported to Papua New Guinea.
Australia owes certain non-refoulement obligations under international treaties and covenants. Paragraph 9.1(3) of Direction 99 provides that international non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim, as is the case in the instant application.
The Applicant has made no non-refoulement claims in this application.[106] In any case, as the Respondent contends, no non-refoulement obligations appear to apply to the Applicant, nor does the information before the Tribunal indicate that non-refoulement obligations arise in relation to the Applicant.[107] It follows that this consideration is not relevant to the instant case.
[106] Transcript, p 89, lines 20-23.
[107] Exhibit R1, p 19-20, para 70.
Direction 99 provides that, where it is open to a non-citizen to apply for a protection visa, it is not necessary to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application, and the decision-maker is not required to determine whether non-refoulement obligations are engaged in respect of the Applicant.[108] This view aligns with the position of the High Court in Plaintiff M1-2021 v Minister for Home Affairs,[109] which affirmed that the Tribunal is not required to make an assessment of Australia's non-refoulement obligations if an applicant in a subsection 501CA(4) matter remains capable of seeking a protection visa.[110] In this case, the Applicant may apply for a protection visa if he wishes to do so.
[108] Paragraph 9.1.2(2) of Direction 99.
[109] [2022] HCA 17.
[110] Exhibit R1, p 20, para 71.
In my view (and I find), it follows that Other Consideration (a) carries neutral weight in the instant case.
Other Consideration (b): Extent of impediments if removed
Paragraph 9.2 of the Direction guides a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant says that this Other Consideration (b) weighs heavily in favour of revoking the cancellation decision.[111]
[111] Transcript, p 91, lines 38-41.
In the Applicant’s PCF, in response to the question asking whether he has any concerns about what would happen to him if he were returned to Papua New Guinea, the Applicant explained that there is nothing positive waiting for [him] if [he] were to return, and this includes the opportunity of job security and education:
Mr SIONI: [PNG] is still in poverty and under developed in most regions, due to political corruption and security, which causes lack of basic health resources, jobs and education. I will not only feel unsafe from everyday crime, but won’t finish my education and find a job.[112]
[112] Exhibit Tr1, G2, p 75.
In submissions to the Respondent as a part of the visa cancellation revocation process, the Applicant highlights that there is a lack of proper medical support in Papua New Guinea, especially for mental health, including rehabilitation services.[113] The Applicant otherwise contends that he would face very significant impediments if removed to Papua New Guinea:
MR SIONI: If I were to be removed to Papua New Guinea, I fear that I would not survive due to my disconnection from the country, the culture and the language barrier. The only connection I have is my younger sister and brother who I plan to move to Australia to receive the same opportunities of education and work as I had.
I also do not have any connection to my parents due to my upbringing and my childhood trauma. I would have no access to counselling or adequate health care for my mental health conditions if I were to be removed. I would not have housing, and I would be living on the streets where I would be subject to violence and other crime. I would not be able to find employment with my skill set or be able to complete my university education. I would not have the same opportunities Australia has given me as I have assimilated into the Australian way of life and consider Australia to be my home.[114]
[113] Exhibit Tr1, G2, p 57.
[114] Transcript, p 89, lines 23-36.

The Respondent does not appear to contest the Applicant’s characterisation of the state of Papua New Guinea’s health services, and acknowledges that his claim is consistent with the Department of Foreign Affairs Country Information Report for Papua New Guinea (Country Information Report).[115] The Respondent similarly acknowledges the Applicant’s contentions about lack of job security, career growth opportunities, economic support, and education, as well as political corruption and poverty in Papua New Guinea.[116]
[115] Exhibit R1, p 21, para 74.
[116] Exhibit R1, p 21, para 75.
However, the Respondent notes that the assessment of the degree of impediments is not a comparative exercise (i.e., not to be assessed in comparison to the standards in Australia). Rather, it is to be evaluated in the framework of what is generally accessible to other citizens in Papua New Guinea. In light of this, the Respondent contends then that the extent of impediments to the Applicant's health is minor:[117]
MR KIM: …we accept that there are certain disadvantages that Mr Sioni would experience in PNG when compared to Australia, for example, but ultimately the respondent’s contention is that these impediments, as it were, are not any different and do not particularly affect - would not particularly affect Mr Sioni but apply to everyone in PNG.[118]
[117] Exhibit R1, p 21, para 75.
[118] Transcript, p 10, lines 5-10.
In reply to the Respondent’s submissions, the Applicant challenged the proposition that the extent of the Applicant's impediments, if removed, as prescribed by Direction 99, is not significant. In particular, the Applicant sought to distinguish the resources and supports available to Papua New Guinea citizens living in Papua New Guinea and himself:
MR SIONI: I understand why the respondent would say that me going back would be similar to everyone that is staying there. However, me going back is not the same as me staying in the country and growing up in the country.
For people who have lived in the country, they have been accustomed to that way of life. Where if I have been accustomed to the Australian way of life, Australia is now my home. Being homeless is also a problem. I wouldn’t be able to have a home. I wouldn’t be able to communicate effectively, because of the language and cultural barrier, since moving at a younger age. Also, the people that the respondent have said that – people who live in PNG are able to have that way of life – that is because they have that family support. They have a home to go to, whereas I don’t. When I go back, I don’t have a home to go back to.
I’ll be going straight to the streets, and I’ll just be another cause of just rubbish on the street, pretty much. And that being said, I wouldn’t be able to access the mental health. I wouldn’t access housing, job security. Not having a family support in connection to the country makes it ten times, a hundred times harder for me. Whereas everyone else back in the country, they are all accustomed to that, they are all used to that. They didn’t have to leave the country at a young age to go to a different country for the opportunities and assimilate to that country and then have to come back on a short notice and try and assimilate back into that community. That is why, …Member, the extent of impediments if I removed would seriously weigh in my favour…[119]
[119] Transcript, p 97, lines 30-47, p 98, lines 1-8.
Based on the parties’ submissions, I am of the view that:
·Sub-paragraph 9.2(1)(a): The Applicant is 26 years old. I do not consider his age to be an impediment to him re-establishing his life in Papua New Guinea. The evidence before the Tribunal indicates that the Applicant suffers from mental (including substance abuse, mild anxiety, mild depression and PTSD) and other health issues. These are obviously obstacles for the Applicant in re-establishing and maintaining basic living standards in Papua New Guinea in the short term. I do not consider that the Applicant’s mental and health conditions can be adequately managed over time in Papua New Guinea (noting the Applicant’s contention that the resources and supports available to Papua New Guinea citizens living in Papua New Guinea and himself are different because he lacks local family connection and resources). I consider (and find) that not insubstantial health-related resettlement impediments will likely persist for this Applicant in the medium to long-term in Papua New Guinea.
·Sub-paragraph 9.2(1)(b): The Applicant was born in Papua New Guinea and lived there for the first 11 years of his life. I consider that his claims that he will face language and cultural barries, which will adversely impact his capacity to communicate effectively in Papua New Guinea, to be overstated. The Applicant has spent around forty per cent of his life in Papua New Guinea. Even if I was to accept (and I do not) that language and cultural barries exist, it cannot be credibly argued that these would be insurmountable were he returned to that country. Evidently, the Applicant maintains a sound English language capacity. English is an official language in Papua New Guinea. More generally, the Applicant’s claims of cultural barriers are at odds with the evidence in at least one of the Applicant’s support letters.[120] Accordingly, I am not persuaded that the purported language and cultural barriers will impede his return and re-settlement to Papua New Guinea.
·Sub-paragraph 9.2(1)(c): I have earlier found that the Applicant’s state of health will present not insignificant impediments upon return and resettlement in Papua New Guinea. I have also earlier indicated that I do not consider that the Applicant’s mental and health conditions can be adequately managed over time in Papua New Guinea (noting the Applicant’s contention that the resources and supports available to Papua New Guinea citizens living in Papua New Guinea and himself are different because he lacks local family connection and resources). A similar finding can be made with reference to social, medical and/or economic support available to the Applicant in Papua New Guinea. This will obviously impede his short and medium-term re-settlement.
[120] Tristan Bray’s letter of support for the Applicant says, “[the Applicant] has shown his pride for our great [PNG] culture by…volunteering his time to numerous PNG events and associations.” (Exhibit A1, p 25).
Overall, I am of the view (and find) that Other Consideration (b) confers heavy, but not determinative, weight in favour of revocation of the decision under review.
Other Consideration (c): Impact on victims
There is no evidence from any victims of the Applicant’s offending as to the impact the decision would have on them. Overall, I find that this consideration is of neutral weight.
Other Consideration (d): Impact on Australian business interests
The parties did not propound anything of substance in relation to Other Consideration (d).[121] Overall, I find that this consideration is of neutral weight.
[121] The Applicant says that his experience and knowledge is of asset to the web technology sector in Australia, as small and large businesses are becoming increasingly digitalised. That being said, the Applicant also conceded that the Tribunal’s decision does not have a significant impact on Australian business interests (Transcript, p 89, lines 39-43).
Findings: Other Considerations
I now summarise the respective weights I have allocated to each of the Other Considerations relevant to the present matter:
(a)legal consequences of the decision: neutral weight;
(b)extent of impediments if removed: heavy, but not determinative, weight in favour of revocation;
(c)impact on victims: neutral weight; and
(d)impact on Australian business interests: neutral weight.
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa?
Under subsection 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion afforded by subsection 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: carries a heavy weight against revocation;
·Primary Consideration 2: carries a heavy weight against revocation;
·Primary Consideration 3: carries a heavy, but not determinative, weight in favour of revocation;
·Primary Consideration 4: carries neutral weight;
·Primary Consideration 5: carries a heavy weight against revocation;
·I have outlined the weight attributable to the Other Considerations above. I am of the view (and I find) that the combined weights I have allocated to each of Primary Considerations 1, 2 and 5 are sufficient to determinatively outweigh the combined weight I have allocated to Primary Consideration 3, and Other Consideration (b), respectively; and
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 5 May 2023 to not revoke the cancellation of the Applicant’s visa.
I certify that the preceding 127 (one hundred and twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Member Lee Benjamin.
..............[SGD].....................
Associate
Dated: 18 September 2023

EXHIBIT DESCRIPTION OF EVIDENCE DATE OF DOCUMENT DATE RECEIVED

TR1 G-Documents (G1-G9; 1-174) Various 17 May 2023

R1 Respondent’s Statement of Facts, Issues and Contentions 23 June 2023 23 June 2023

A1 Respondent’s Bundle of Applicant’s Materials – Further Documents Received from the Applicant on 7 June 2023 N/A 23 June 2023

A2 Respondent’s Bundle of Applicant’s Materials – Applicant’s Further Additional Material N/A 6 July 2023
ANNEXURE A

[2023] AATA 2987

28 July 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Court	Conviction date	Offence	Outcome
Holland Park Magistrates Court	24.07.2018	Contravene Direction or Requirement	Fined: $200.00 No conviction recorded
		Contravention of Domestic Violence Order	Probation Period: 2 years Community Service Time: 240 hours (to be completed within 12 months) No conviction recorded
		Distribute Prohibited Visual Recordings Domestic Violence Offence
Brisbane Magistrates Court	28.07.2020	Failure to Appear in Accordance with Undertaking	Fined $300.00, conviction recorded
Brisbane Magistrates Court	28.07.2020	Breach of Probation Order	[For Breach of Probation Order]: Conviction Recorded Not further punished Order(s) revoked [Resentenced for Original Offences]: Distribute Prohibited Visual Recordings Domestic Violence Offence – 3 months imprisonment, suspended for 18 months, conviction recorded Contravention of Domestic Violence Order – Fined $200.00, conviction recorded.
Holland Park Magistrates Court	10.02.2022	Contravention of Domestic Violence Order (Aggravated Offence)	Conviction recorded, not further punished
		Breach of Bail Condition	Conviction recorded, not further punished
		Assaults Occasioning Bodily Harm	18 months imprisonment, conviction recorded
Brisbane Magistrates Court	23.06.2022	Contravention of Domestic Violence Order (Aggravated Offence)	3 months imprisonment, conviction recorded

Date	Organisation	Engagement type	Course title	Course type	Completed/ Outcome
04.02.2023 – 04.03.2023	Metro North Health	Telephone conference sessions	Your CALL program	Time-limited telephone program of 3 sessions focused on supporting individuals regarding drug and alcohol recovery	Final session: 04.03.2023
29.05.2023	Better Man	Initial contact / outreach	Better Man	Client outreach on course site and completion of “Action Plan”	Completion of “Action Plan” 29.05.2023
12.12.2022 – 29.04.2023	International Health and Medical Services	Individual counselling session	-	Treatment sessions with treating psychologist which culminated in a psychological report	17.04.2023 (final session)
03.04.2023 - 05.06.2023	Universal Class	Online course	-	Self-paced online modules covering mental health issues, drug and alcohol rehabilitation and domestic violence	Final (and most recent) module on 05.06.2023
07.06.2023	Interrelate	Initial contact / outreach	Respectful Man program	Applicant initial outreach and correspondence with program manager	Not commenced / completed
27.06.2023	Safe & Equal	Online course	Family Violence Foundations	Self-paced online modules covering the prevalence of domestic violence, defining domestic violence, and the impacts of domestic violence	Completed on 27.06.2023
03.07.2023	Anglicare	Initial contact / outreach	Living Without Violence	18-week program, comprised of course that address safety and accountability with respect to domestic violence-related behaviour	Not commenced / completed. Placed on waiting list: 3 July 2023.
14.06.2023- 03.07.2023	Wiser Ways (Life Supports)	Interactive course	Anger Management Domestic Violence Program	Course that consists of five modules, containing psychoeducational material about moving to safer and respectful relationships	Final module: 03.07.2023
20.06.2023 – 04.07.2023	The Link Foundation AOD Community Programs	Online modules + Individual counselling session	Alcohol and Other Drugs Recovery Program Missing Links	Series of Zoom “SMART recovery meetings” attended by Applicant and conducted by therapist, covering drug rehabilitation and involving interactive participant involvement Applicant also attended an individual counselling session that canvassed progress made and the therapeutic journey	Final online SMART meeting completed on 04.07.2023 Individual counselling session completed on 29.06.2023
15.05.2023-26.06.2023	Drug ARM	Initial contact / outreach	Community and Family Support Services treatment program	Applicant received confirmation that is on the waiting list for Drug ARM support	Last confirmation 26.06.2023
05.07.2023	Serco	Individual counselling session	-	Discussion of completed courses and current support regime, as well as future plans and prospects	05.07.2023
05.07.2023	Lives Lived Well	Applicant outreach, intake process and first session	-	Session with counsellor to explore mental health issues related to trauma and abuse	Applicant noted that first session was completed on 07.07.2023

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
TR1	G-Documents (G1-G9; 1-174)	Various	17 May 2023
R1	Respondent’s Statement of Facts, Issues and Contentions	23 June 2023	23 June 2023
A1	Respondent’s Bundle of Applicant’s Materials – Further Documents Received from the Applicant on 7 June 2023	N/A	23 June 2023
A2	Respondent’s Bundle of Applicant’s Materials – Applicant’s Further Additional Material	N/A	6 July 2023