Steel and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 175

Steel and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 175 (4 March 2025)
Applicant:Ryan James Lee Steel
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/10641

Tribunal:General Member K. Thornton
Place:Melbourne
Date:4 March 2025

Decision:The Tribunal affirms the decision under review.

................................[SGD]........................................
General Member K. Thornton
Catchwords
MIGRATION – Visa refusal under s 501(1) of the Migration Act 1958 (Cth) – citizen of United Kingdom – Temporary Activity (Class GG) visa – family violence offending – failure to pass character test under s 501(6)(d)(i) – whether discretion to refuse to grant visa should be exercised – Ministerial Direction 110 applied – reviewable decision affirmed.
Legislation
Migration Act 1958 (Cth)
Cases
Ali and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5232
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
Bennett and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1462
BTZ19 v Minister for Home Affairs [2019] FCA 1301
FYBR v Minister for Home Affairs (2019) 272 FCR 454
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v CPJ16 [2019] FCA 2033
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Secondary Materials
Australian Government, Australian Institute of Health and Welfare, ‘Family, domestic and sexual violence’ Intimate partner violence’ website updated 24 November 2023 no. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation under section 501CA (dated 7 June 2024)
Statement of Reasons
INTRODUCTION

The Applicant is a 33-year-old citizen of the United Kingdom.[1] He seeks review of the Respondent’s decision to refuse his application for a Temporary Activity (Class GG) visa under s 501(1) of the Migration Act 1958 (Cth) (the Act).[2] The decision was made on the basis that the Applicant does not pass the character test according to s 501(6)(d)(i) of the Act.[3]
[1] Exhibit R1, 189.
[2] Ibid, 29.
[3] Ibid.
The Tribunal hearing was conducted by video on 24 February 2025. The Applicant represented himself in the proceedings and appeared via telephone. The Respondent was represented by Mr Matthew Gauci, Partner, from Hunt & Hunt Lawyers.
For the following reasons, the Tribunal affirms the reviewable decision.
LEGISLATIVE FRAMEWORK
Section 501(1) provides that the Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
The character test is defined by s 501(6). Relevantly, s 501(6)(d)(i) provides that a person does not pass the character test if, in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would engage in criminal conduct in Australia.
If a person does not pass the character test, the Tribunal must determine whether to exercise the discretion under s 501(1) to refuse to grant a visa.
The Direction
Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act. Section 499(2A) provides that a person or body must comply with a direction under s 499(1).
Such a direction has been given under s 499 of the Act, being Ministerial Direction 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).
Paragraph 5.1 of the Direction contains the Objectives. Paragraph 5.1(1) provides that the objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test is liable for refusal of a visa or cancellation of their visa.
Section 1 of Annex A of the Direction provides an overview of the character test insofar as it relates to discretionary visa cancellation or refusal. Paragraphs (2) and (3) of Section 1 of Annex A relevantly provide:
(2) Persons who are being considered under section 501 of the Act must satisfy the decision-maker that they pass the character test set out in section 501(6) of the Act. In practice, this requires the decision-maker to determine, on the basis of all relevant information including information provided by the person, that the person does not pass the character test by reference to section 501(6) of the Act.
(3) Section 501(6) of the Act prescribes the circumstances in which a person does not pass the character test. A person need only be found to not pass one ground, in order to not pass the character test.
Section 2 of Annex A of the Direction provides guidance in relation to the application of the character test. In regard to s 501(6)(d) of the Act, it provides as follows:
6. Risk in regards to future conduct (section 501(6)(d))
(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person would engage in any of the conduct specified in section 501(6)(d) of the Act. The types of conduct specified are discussed below.
(2) The grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person, if allowed to enter or to remain in Australia, would engage in conduct specified in section 501(6)(d) of the Act.
(3) It is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) of the Act in the past. There must be a risk that the person would engage in the future in the specified conduct set out in section 501(6)(d) of the Act.
6.1 Risk of engaging in criminal conduct in Australia (section 501(6)(d)(i))
(1) A person does not pass the character test if, in the event that the person were allowed to enter or remain in Australia, there is a risk that the person will engage in criminal conduct in Australia.
(2) The reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded.
Paragraph 5.1(2) provides that under s 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.
Paragraph 5.2 of the Direction contains principles which provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under s 501. The factors (to the extent they are relevant in a particular case) that must be considered in making a decision under s 501 of the Act are identified in Part 2 of the Direction.
The principles as set out under paragraph 5.2 are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) 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.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) 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.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
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.
Paragraph 7 of the Direction deals with taking the relevant considerations into account. It provides as follows:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of the Direction states that the following are primary considerations:
(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;
(5) expectations of the Australian community.
Paragraph 9(1) of the Direction provides that in making a decision under ss 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with their provisions. Those considerations include (but are not limited to):
a)    legal consequences of the decision;
b)    extent of impediments if removed;
c)    impact on Australian business interests.
It is now convenient to set out some of the background that led to the refusal of the Applicant’s application for a visa by the delegate of the Respondent.
BACKGROUND
Arrival into Australia
The Applicant first arrived in Australia on 28 September 2014.[4] Thereafter he departed Australia three times as follows:[5]
·Departed on 8 October 2014 and returned on 16 October 2014;
·Departed on 18 October 2014 and returned on 3 September 2018;
·Departed on 13 August 2019 and returned on 2 September 2019.
[4] Ibid 259.
[5] Ibid.
The Applicant has remained in Australia since 2 September 2019.[6]
[6] Ibid.
On 17 August 2021 he applied for a Temporary Activity (subclass 408) visa.[7] He was issued with a Bridging A (Class WA) visa the same day.[8]
[7] Ibid 288-99.
[8] Ibid 26.
Offending
Between 18 March 2022 and 22 July 2022, the Applicant engaged in family violence offending against the same victim, being his former partner (Ms A).
On 11 August 2022 the Applicant was convicted and sentenced in the Waverley Local Court of New South Wales for this offending.[9]
[9] Ibid 38.
A summary of the Applicant’s offending and the sentence he received is below:
(a)Incident on 18 March 2022:[10]
[10] Ibid 44-8.
(i)The Applicant returned to his residence after drinking at a local licensed premises. The Applicant met with Ms A and engaged in a verbal argument. The argument escalated which resulted in the Applicant grabbing Ms A and pushing her to the ground. The Applicant then punched Ms A with a closed fist and kicked her.
(ii)The force of both assaults caused cuts and bleeding. Ms A crawled towards her roommate for help. The roommate applied first aid to the victim.
(iii)The Applicant went into his bedroom and returned with Ms A’s phone and held it towards her whilst shouting before returning to his bedroom. The roommate followed the Applicant and retrieved the phone for the victim. The back of the phone was shattered and not working.
(iv)Police were called and the Applicant was arrested and charged. The Applicant was placed on an Apprehended Domestic Violence Order (ADVO) due to this offending.[11]
[11] Ibid 52. The ADVO was made enforceable on 24 March 2022 when the Applicant first attended court in relation to these charges.
(v)In regard to the assault on Ms A, the Applicant was convicted of ‘Assault occasioning actual bodily harm (DV) – T2’ and sentenced to an Intensive Correction Order for 10 months commencing 11 August 2022.[12]
[12] Ibid 80.
(vi)In regard to the damage to Ms A’s phone, the Applicant was convicted of ‘Destroy or damage property <$2,000 (DV) – T2’ and sentenced to a Community Correction Order for 2 years commencing on 11 August 2022.[13]
[13] Ibid.
(b)Incident on 21 May 2022:[14]
[14] Ibid 49-54.
(i)Ms A attended a local hotel with friends. Whilst she was at the venue with her friends, she noticed the Applicant (who was also at the venue) staring at her from a few metres away.
(ii)Ms A and a friend when to the bar where the Applicant approached her from behind and used an open hand to grab her arm. At this point the Applicant yelled obscenities at the complainant.
(iii)Police were alerted to the incident by a friend of the victim. Police attended and spoke to the Applicant and Ms A. The Applicant had left the location immediately prior to their attendance. Ms A made a statement to police.
(iv)Police viewed the CCTV footage of the incident which appeared to corroborate the victim’s version of events. Police then arrested the Applicant.
(v)In relation to this incident, the Applicant was convicted of ‘Contravene prohibition/restriction in AVO (Domestic)’ and fined $800.[15]
[15] Ibid 80.
(c)Incident on 16 July 2022:[16]
[16] Ibid 55-9.
(i)On 16 July 2022, police were conducting ADVO checks on the Applicant and Ms A. Through a phone call made by police, Ms A disclosed that the Applicant had been conversing with a mutual friend of the Applicant and Ms A through social media. The Applicant had sent the mutual friend a message stating that he would rather speak with the victim through the mutual friend.
(ii)Police spoke to the Applicant about this potential breach, and he said he was aware that he was not to make contact with the complainant except through a lawyer. The Applicant was then arrested.
(iii)In relation to this incident, the Applicant was convicted of ‘Contravene prohibition/restriction in AVO (Domestic)’ and fined $800.[17]
(d)Incident on 22 July 2022:[18]
(i)On 22 July 2022, the Applicant attended a licensed premises with friends. On the same day, Ms A arrived at the same premises with her friends.
(ii)Later that evening the Applicant recognised Ms A at the bar and positioned himself so he could see her from across the room. The Applicant stared at her and walked past her on two occasions throughout the night. When Ms A and her friends left the premises the Applicant approached her and her friends outside the venue and engaged them in a heated verbal exchange.
(iii)On 27 July 2022, police conducted an ADVO compliance check on the Applicant. When the police contacted Ms A, she reported the incident to them. That same day when the Applicant presented to the police station to report as per his bail conditions, he was arrested and charged with ‘Contravene prohibition/restriction in AVO (Domestic)’.
(iv)In relation to this incident the Applicant was fined $800.[19]
[17] Ibid 80.
[18] Ibid 60-4.
[19] Ibid 80.
Therefore, the total sentence the Applicant received on 11 August 2022 was an Intensive Corrections Order for 10 months, a Community Corrections Order for 2 years, and a total fine of $2,400.[20]
[20] Ibid 80.
Visa refusal
On 17 July 2024 a delegate of the Respondent issued the Applicant with a Notice of intention to consider refusal of your visa application under s 501(1) of the Act.[21]
[21] Ibid 82-6.
The notice stated that the Department of Home Affairs (‘the Department’) held information that suggested the Applicant may not pass the character test by virtue of s 501(6)(d)(i) of the Act and invited him to comment.[22]
[22] Ibid 82.
On 14 August 2024, the Applicant provided a written response to the Notice by way of submissions written by a representative of the Applicant, Mr Blake Lamont.[23] The written response also attached various items including character references and a letter from a psychologist.
[23] Ibid 282-7.
On 4 December 2024 a delegate of the Respondent refused to grant the Applicant’s visa.[24] The delegate was not satisfied that the Applicant passed the character test according to s 501(6)(d)(i) of the Act.[25] The delegate further considered that the discretion under s 501(1) should be exercised to refuse to grant the Applicant’s visa.[26]
[24] Ibid 160-73.
[25] Ibid 165.
[26] Ibid 173.
On 11 December 2024 the Applicant was notified of the visa refusal decision via email.
Tribunal proceedings
On 18 December 2024 the Applicant lodged an Application for Review of Decision with the Tribunal.[27]
[27] Ibid 8-20.
A Directions Hearing was held on 6 January 2025 and Directions were issued for the management of the matter including listing it for a two-day video hearing on 24 and 25 February 2025 to commence at 10.00am. The Applicant was self-represented at this hearing. The Applicant was advised of the statutory timeframes in relation to the filing of materials.[28] The Applicant failed to file any material in response to the Directions.
[28] Pursuant to ss 500(6H) and 500(6J) of the Act.
A further Directions Hearing was held on 13 February 2025 for the purpose of enquiring with the Applicant whether he was intending to file any materials in support of his application including a Statement of Facts, Issues and Contentions. The Applicant, appearing self-represented, was again reminded of the statutory timeframes in relation to the filing of materials. The Applicant indicated that he was content to rely on materials that he had previously provided the Department.
The Tribunal hearing was scheduled to commence on 24 February 2025 at 10.00am. The hearing however commenced at 12.00pm that day. On 21 February 2025 at 4.59pm, the Applicant emailed the Tribunal and the Respondent and advised that he wanted a hearing ‘on the papers’. The Tribunal contacted the Applicant via email on the morning of the hearing and advised that he would be required to attend the hearing as planned. When the hearing commenced at 10.00am, the Applicant was uncontactable. The Respondent submitted to the Tribunal that this was not an appropriate matter to be dealt with on the papers. Given the Applicant’s character was in question, and that the Applicant had failed to file any material for the Tribunal hearing, the Tribunal agreed. The matter was stood down until 12pm. The Applicant appeared via telephone at 12pm and the hearing commenced. At the hearing, the Applicant gave evidence and was cross-examined. The Applicant was advised of his privilege against self-incrimination and stated that he understood that privilege.

The Tribunal also received into evidence the following materials:
(a)Exhibit R1: G-documents lodged 20 January 2025 comprising 404 pages;
(b)Exhibit R2: Respondent’s Statement of Facts, Issues and Contentions (‘SOFIC’) dated 12 February 2025;
(c)Exhibit R3: Summonsed material from the New South Wales Department of Communities and Justice comprising 184 pages; and
(d)Exhibit R4: Summonsed material from the New South Wales Police Force comprising 86 pages.
The Applicant did not call any witnesses.
After closing submissions had commenced, the Applicant’s phone line dropped out and the Applicant was uncontactable. After a short adjournment during which the Tribunal again tried to contact the Applicant to no avail, the Tribunal granted leave for the parties to provide closing submissions on the papers. Those closing submissions were received from both parties on 25 February 2025 as per the Tribunal’s Directions.
ISSUES TO BE DETERMINED BY THE TRIBUNAL
There are two primary issues that need to be determined by the Tribunal. They are:
(a)Whether the Applicant passes the character test as defined by s 501(6)(d)(i) of the Act; and
(b)If the Tribunal is satisfied that the Applicant does not pass the character test, whether the discretion to refuse to grant the visa be exercised, after applying the relevant primary and other considerations in the Direction to the specific circumstances of the Applicant’s case.
CONSIDERATION
Does the Applicant pass the character test?
The Tribunal needs to determine whether the Applicant passes the character test as set out in s 501(6)(d)(i) of the Act. The section provides that a person does not pass the character test if, in the event that the person were allowed to remain in Australia, there is a risk that the person would engage in criminal conduct in Australia.
Respondent’s position
The Respondent’s SOFIC has referred the Tribunal to a number of authorities which provide assistance in regard to answering this question.[29]
[29] Exhibit R2 [13]-[16], namely Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs v CPJ16 [2019] FCA 2033, and
One of those authorities is the Full Court of the Federal Court’s decision in Minister for Immigration and Border Protection v Sabharwal, in which the Court held:[30]
Section 501(1) of the Act provides that the Minister “may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test”. Section 501(6)(d)(i) provides that a person does not pass the character test if “in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would…engage in criminal conduct in Australia”. The section requires an evaluative judgment by the decision-maker, in the present case the Minister personally, as to whether the decision-maker is satisfied that there is such “a risk”. Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person.
[30] [2018] FCAFC 160 [2].
The Respondent also contended that an assessment of risk of the person engaging in any criminal conduct in Australia in the future ‘… involves identifying the factors pointing to an ascertainable risk’ that the Applicant would do so.[31]
[31] Exhibit R2 [16] citing BTZ19 v Minister for Home Affairs [2019] FCA 1301 [20].
The Respondent considers that there is a risk that the Applicant would engage in criminal conduct and therefore does not pass the character test according to s 501(6)(d)(i) of the Act.[32] The Respondent contends that this is due to a combination of factors including:
(a)The Applicant’s prior convictions for domestic violence offending;[33]
(b)The minimal rehabilitation engaged in by the Applicant, including his failure to voluntarily engage in rehabilitative treatment (although it was not a condition of his Intensive Correction Order that he do so).[34] The Respondent does however acknowledge that the Applicant provided screenshots with his Application for Review to the Tribunal which state he is on the waitlist for the Men’s Behaviour Change Program;[35]
(c)Lack of genuine remorse as he has failed to demonstrate sufficient insight into the harm caused by his behaviour on the mental and physical health of his victim.[36]
[32] Exhibit R2 [29].
[33] Ibid [25].
[34] Ibid [27(b)].
[35] Ibid [27(b)(2)].
[36] Ibid [28].
Applicant’s position
The Applicant’s position is that the visa refusal decision is incorrect and is not reflective of his true character or intentions.[37] He seeks review of his case and submits that there is an error in the initial decision.[38]
[37] Exhibit R1, 15.
[38] Ibid.
Analysis of Applicant’s evidence and materials
The Applicant has provided three undated statements to the Minister regarding his visa application.[39] He also filed written submissions through a representative which are dated 14 August 2024.[40]
[39] Ibid 267-81.
[40] Ibid 282-7 (Submissions authored by Mr Blake Lamont).
In the first of these written statements to the Minister (marked as Attachment H.1 to the delegate’s Decision Record), the Applicant noted that he sought therapy following the death of his father in December 2021.[41] He states that although financial constraints prevented him from continuing this therapy, he states he has consistently sought support from his family and friends.[42] He states that since these charges, he has not committed any further offences.[43]
[41] Ibid 267.
[42] Ibid.
[43] Ibid.
The second written statement (marked as Attachment H.2 to the delegate’s Decision Record) appears to be his explanation of his offending conduct for which he was convicted.[44] The Applicant set out each of the offences for which he was convicted and then included a section called ‘My version of events’. The Tribunal notes with concern that the Applicant’s ‘version of events’ in relation to each of the offences for which he was convicted is at odds with the versions contained in the Police Fact Sheets for which he pleaded guilty. The Applicant also maintained during cross-examination that he denied the facts as put in the Fact Sheets, but wanted to plead guilty so he could leave gaol (having been on remand for the last offence).
[44] Ibid 269-70.
For example, in relation to the primary offending that took place at the apartment, the Applicant denied in his written statement, and during cross-examination, that he ever struck the victim with a closed fist or kicked her. In his written statement he stated that he and the victim had gotten into a verbal altercation, and that, in an attempt to calm the victim down, he walked over to her, and in his ‘self-defence’, grabbed hold of the victim by the top of her arms and pushed her out the door which resulted in the victim falling to the floor which he believed ‘was from the stuff she had on the floor’.[45] During cross-examination, he denied ever striking the victim and said he would never do anything like that.
[45] Ibid 269.
The Applicant also provided an explanation for each of the three Contravene AVO offences for which he was convicted. To this end, the Tribunal accepts the Respondent’s submissions that although the Applicant has demonstrated remorse (through his plea of guilty), he has failed to demonstrate sufficient insight into the harm caused by his behaviour. The Tribunal acknowledges the Applicant’s intent in enrolling in a Men’s Behaviour Change program, as evidenced by screenshots attached to his Application for Review,[46] but notes that there has been no further evidence provided by the Applicant in regard to efforts made towards rehabilitation.
[46] Ibid 16-7.
The Tribunal has considered the Applicant’s explanation for the offending and his version of events. However, the Tribunal is unable to go behind a conviction or finding of guilt and cannot impugn the findings of facts of the sentencing court.[47] As noted by the Respondent, the Applicant failed to provide any evidence to substantiate his version of events as contended before the Tribunal.[48]
[47] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 [77]-[79].
[48] Respondent’s closing submissions dated 25 February 2025 [8].
The Applicant’s third written (undated) statement refers to his efforts in trying to get a police clearance certificate from the UK.[49]
[49] Exhibit R2, 279-80.
The Applicant also filed written submissions dated 14 August 2024, through a representative (Mr Blake Lamont).[50] Those submissions acknowledge that the Applicant’s offending conduct ‘raises questions of character’.[51] The submissions state that the Applicant is deeply apologetic for the offences and maintains that the offences are ‘isolated’ and are not a reflection of his true character.[52] The submissions then go on to address the primary considerations.
[50] Ibid 282-7.
[51] Ibid 283 [8].
[52] Ibid 283 [10].
The Applicant also relied on correspondence from his treating psychologist (Mr Ben Caunt) dated 30 July 2024 and dated 9 August 2024.[53] The correspondence is brief (one page each) and states that the Applicant was suffering from a Major Depressive Episode at the time of the Applicant’s attendance at his practice between 17 February 2022 and 20 April 2022. Mr Caunt states that the grief surrounding the death of the Applicant’s father in December 2021 ‘was definitely one clear contributing factor’ of his Major Depressive Episode. He also said that whilst not willing to comment on direct causality, the Applicant’s ‘depression symptoms could have influenced or contributed to actions that were not consistent with his normal behaviour’.[54]
[53] Ibid 248, 258.
[54] Ibid 258.
The Applicant also relied on the following letters of support from:
(a)Ms Steel (Applicant’s sister) dated 1 March 2024:[55]
[55] Ibid 247.
(i)Ms Steel resides in the United Kingdom. She stated that the Applicant’s conviction came as a complete shock to the family. She stated that his conviction was out of character and that she believed her brother was struggling with the recent passing of their father.
(ii)She stated that despite facing challenges and setbacks, he has consistently demonstrated integrity, resilience, and a genuine desire to improve himself which included attending counselling sessions.
(iii)She urged the decision-maker to consider his application with an open mind, focusing on his present character and future potential rather than his ‘one conviction’.
(b)Ms B (Applicant’s partner) undated:[56]
[56] Ibid 254-5.
(i)In this undated letter of support, Ms B writes that she is providing a character reference for the Applicant who is her current partner. She notes they have been in a relationship since April 2014. She said she is aware of the Applicant’s criminal history and the offences he committed.
(ii)She appreciates his willingness to seek help and make positive changes in his life. She reports that she and the Applicant are committed to their relationship and have plans to establish a life together.
(The Tribunal notes that the Applicant’s evidence to the Tribunal is that the relationship is now more ‘casual’ following an incident which is described further below).
(c)Mr Blake (friend of the Applicant) dated 12 February 2024:[57]
[57] Ibid 246.
(i)Mr Blake resides in New Zealand and has known the Applicant for around 14 years. Mr Blake is aware of the Applicant’s ‘criminal record’. He says the Applicant is of good character, a dependable friend, loyal and honest.
(d)Mr Williams (manager of the Applicant’s soccer team) dated 9 August 2024:[58]
[58] Ibid 249.
(i)He has coached the Applicant in his soccer team for the last three and a half years. Mr Williams reports he is aware of the ‘offence’ the Applicant committed and has spoken to him about it. He states that this is out of character for him as he knows the Applicant to be a man of great aspirations and admirable character. He described the Applicant as a positive and well-liked member of the team.
(e)Ms McKay (friend of the Applicant) dated 12 August 2024:[59]
[59] Ibid 250.
(i)Ms McKay has known the Applicant for about a year. She considers him a close friend, and a kind and caring person.
(ii)She is aware of the Applicant’s criminal ‘offence’ which she says is completely out of character for him.
(f)Ms Moore (friend of the Applicant) dated 29 February (year not stated):[60]
[60] Ibid 251.
(i)Ms Moore reports knowing the Applicant since April 2023. They have travelled together and during this time she got to know the Applicant on a deeper level which allowed her to see his true morals and values.
(ii)She wanted to emphasise the positive attributes of his personality, and notes that the Applicant has actively sought ways to improve and move forward.
(g)Mr Howles (friend of the Applicant) (undated):[61]
(i)Mr Howles reports knowing the Applicant for approximately five years. He describes him as a close friend. He states he is aware of the ‘offence’ committed by the Applicant and the facts leading to the offence and his criminal record.
(ii)He is also aware of the Applicant’s father passing and that he sought psychological support. He described the Applicant as honest and truthful and someone that he goes to for advice. Mr Howles states that the offence the Applicant committed is out of character for him. He has spoken to the Applicant about it and he reports that the Applicant deeply regrets his behaviours.
(iii)He states that this incident was out of character and shouldn’t determine the rest of his life. He states that the Applicant has his full support.
(h)Mr O’Gorman (Applicant’s previous employer in the United Kingdom) (undated):[62]
(i)Mr O’Gorman reports that the Applicant was employed by him as a labourer for approximately two years before the Applicant relocated to Australia in September 2018.
(ii)He states that the Applicant consistently demonstrated a strong work ethic, reliability, and a commendable level of skill in his role. Mr O’Gorman states he is aware of the offence (described by him as ‘AVO and breach of AVO orders’) but can attest to his good character and trustworthiness.
[61] Ibid 252-3.
[62] Ibid 256.
The Applicant also provided a Letter of Engagement from his previous employer in Australia (Mr Wilcockson) dated 26 June 2023 which confirmed the Applicant was employed as a trade assistant on a casual basis.[63] The Applicant’s duties in this role were to assist trades with various carpentry work, commercial fit outs, and medical fit outs.[64]
[63] Ibid 245.
[64] Ibid.
During cross-examination it was put to the Applicant that the letters of support from Mr Howles, Ms McKay and Mr Williams only refer to a single offence, rather than offences. The Applicant conceded during cross-examination that he did not disclose the full particulars of his offending to them. He admitted giving these witnesses the ‘shortened version’ of his offending. His evidence was that it was ‘very uncomfortable’ to speak to someone about this. It was not clear to the Tribunal which offence or conviction he informed them of. Further, it was not clear whether the Applicant told these witnesses his version of the main incident (that he pushed the victim and she fell over) or the version alleged in the police Fact Sheets (which alleged he punched the victim in the face with a closed fist and kicked her). Likewise, the Applicant’s sister refers to a ‘conviction’. Again, it is unclear whether she has been fully informed of the circumstances of the Applicant’s offending.
The fact that the Applicant admitted to failing to provide a full and frank account of the facts as alleged against him is concerning. In the Tribunal’s view it demonstrates a lack of remorse and insight into his offending behaviour.
The Tribunal notes Section 2 of Annex A to the Direction provides at paragraph 6(3) that it is not sufficient to find that the person has engaged in conduct specified in paragraph 501(6)(d) in the past. It further provides that there must be a risk that the person would engage in the future in specified conduct set out in s 501(6)(d) (being, criminal conduct in Australia). The Direction states specifically in regard to s 501(6)(d)(i), that ‘[t]he reference to criminal conduct must be read as requiring that there is a risk of the person engaging in conduct for which a criminal conviction could be recorded’.[65]
[65] The Direction, Annex A, Section 2 para 6.1(2).
As noted by the Respondent in its SOFIC, the Applicant is alleged to have engaged in an incident subsequent to his conviction and sentence for the current offences. The allegation was made to police by the Applicant’s current partner (Ms B). The incident was said to have taken place on 29 September 2024, which is two years after he was sentenced for the first incidents of family violence. The incident is summarised in the NSW Police Force summonsed material and in the Respondent’s SOFIC. The incident occurred after the Applicant and Ms B had consumed several alcoholic drinks at a venue. Ms B allegedly told the Applicant that she wanted to end the relationship. Once outside the venue, Ms B remembers her phone being on the ground and she alleged that the Applicant had kicked it away from her before he picked it up. Ms B believed that the Applicant had thrown her mobile phone over the fence and began screaming and yelling at him. She then couldn’t locate her bag and believed that the Applicant had taken it and hidden it from her.
Two witnesses approached Ms B who was emotional and crying. Ms B advised the witnesses that the Applicant had stolen her property and refused to give it back. The witnesses asked the Applicant about her property, but he denied any knowledge of it. One of the witnesses began recording the interaction with the Applicant on her phone. Shortly after, the Applicant handed the bag to the witness and walked away. Ms B and the witnesses then attended a police station to report the matter.
When spoken to by police, Ms B stated she did not want to provide a formal statement and she was not scared of the Applicant. She advised that she wanted to end her relationship with the Applicant. Police attended the Applicant’s premises the next day and he gave an account of what had occurred, that is that the pair had been drinking, and the Applicant had located Ms B’s bag and handed it to her. He then walked off to cease the argument. Whilst police were speaking to the Applicant, Ms B arrived home and apologised to police for the inconvenience as she realised she was highly intoxicated, that she started the argument and did not mean to escalate it by going to police. She said she did not hold any fears for her safety.
There are two further incidents that are alleged to have occurred against Ms A prior to the Applicant being sentenced for his current offences. The first of these incidents involved an allegation that the Applicant attended Ms A’s premises and took some of her personal property. The second incident involved Ms A receiving a total of 10 missed calls which she believed were from the Applicant. Both these incidents were reported to police. Those incidents (which were said to take place in April and May 2022) were not the subject of police charges.
Each of these three incidents was put to the Applicant by the Respondent during cross-examination (after being reminded of his privilege against self-incrimination). The Applicant offered an explanation consistent with innocence for all three incidents. He denied making the phone calls to Ms A and attending her premises to take her property. He also regarded the later incident with Ms B as a misunderstanding and that she had subsequently told police that she was intoxicated and was mistaken about the events that occurred that night.

The Tribunal has attributed more weight to the subsequent incident against the Applicant’s current partner, despite that incident not resulting in charges being laid. In the Tribunal’s view, the Applicant has demonstrated a repeated pattern of alcohol intoxication which resulted in episodes of physical and/or verbal altercations with his current and former partner. Despite the deterrent effect of previous convictions for family violence, all of which (except one) took place after the Applicant had been drinking, in the Tribunal’s view the Applicant has demonstrated that there is more than a minimal or remote chance that he would engage in criminal conduct. The incidents have a pattern of occurring following the breakdown of a relationship and after the Applicant has consumed alcohol. The Tribunal accepts that the Applicant may have been grieving the death of his father at the time of the earlier incidents, but there was no such life event reported for the subsequent incident. The Tribunal finds that there is a risk that the Applicant would engage in criminal conduct in Australia.
Tribunal’s conclusion on character
The Tribunal is therefore satisfied that the Applicant does not pass the character test as set out under s 501(6)(d)(i) of the Act.
Should the discretion be exercised to refuse to grant a visa to the Applicant?
Having been satisfied that the Applicant does not pass the character test, the Tribunal now needs to consider whether the discretion in s 501(1) should be exercised to refuse to grant the Applicant’s visa. In making a decision under s 501(1), the Tribunal must comply with the Direction and apply it to the specific circumstances of the case. The primary and other considerations contained in the Direction are considered below.
Primary consideration 1 – protection of the Australian community from criminal or other serious conduct
Paragraph 8.1 of the Direction provides:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen's conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
In accordance with paragraph 8.1(1), the Tribunal has kept in mind that the safety of the Australian community is the highest priority of the Australian Government. The Tribunal has also had regard to the principle that remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been law abiding, respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
In this respect, the Tribunal notes that the Applicant has not been law abiding whilst in Australia and has offended against his former partner in a family violence context. Further, the Applicant failed to respect the various ADVOs that were in place to protect the victim and breached them on three separate occasions. The Applicant was also on strict bail conditions which mirrored the conditions of the ADVO. This behaviour does not demonstrate respect for the laws of Australia and the Tribunal has taken this into account.
The Tribunal has also given consideration to the matters raised at paragraph 8.1(2) as follows.
The nature and seriousness of the conduct
This part of the Direction directs decision-makers to have regard to the nature and seriousness of the non-citizen’s criminal offending and other conduct to date. Paragraph 8.1.1(1)(a) of the Direction identifies types of conduct that are viewed as very serious by the Australian Government and the Australian community.
These crimes or conduct include:
i.violent and/or sexual crimes;
ii.crimes of a violent and/or sexual 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.
The Respondent submits that the Applicant’s offending is objectively very serious because it involves violence against a woman, and that the offending occurred in the context of an intimate relationship.[66]
[66] Exhibit R2 [34a].
The Respondent also referred to the remarks of the sentencing court which described the Applicant’s conduct in ‘kicking and punching this woman was just absolutely deplorable, just deplorable’.[67] In regard to the breaches of the ADVO, the court said ‘this stupid staring at her…I know that it does appear that you came across each other in this hotel by accident on at least two occasions, but the fact of the matter – your behaviour then was just stupid, absolutely stupid’.[68]
[67] Ibid [34g(2)].
[68] Ibid [34g(3)].
The Respondent also contended that the Applicant’s repeated contraventions of the ADVO indicate his clear disregard for Australian law and authorities.[69] The Respondent has also addressed the factors identified in paragraph 8.1.1(1) of the Direction in regard to the impact of the offending on the victim, the frequency of his offending and the cumulative negative effect that the repeated offending must have caused the victim.[70]
[69] Ibid [35b].
[70] Ibid [36].
The Respondent contends that the nature and seriousness of the Applicant’s offending weighs heavily in favour of visa refusal.[71]
[71] Ibid [37].
The Applicant has addressed his offending in various statements and submissions to the Tribunal. There is an acknowledgment in the written submissions dated 14 August 2024 that he understands that it is a privilege to remain in Australia, and that ‘his historical actions put this privilege at risk’.[72]
[72] Exhibit R1, 283 [16].
The Applicant did not appear to take full responsibility for his actions or truly reflect on the seriousness of the offending conduct during his evidence or in his written statements and written closing address to the Tribunal. In his closing submissions he states:[73]
I have provided my version of events and stand by what I have said. I have acknowledged my actions, including admitting to pushing the victim, an act that I deeply regret. If this caused any harm or distress to the victim, I can only offer my sincere apology. I want to make it clear that I am not a violent person, nor do I wish to be perceived as one.
I take full responsibility for my actions and have reflected on the situation to ensure that nothing like this ever happens again.
I acknowledge that I initially entered pleas of not guilty before Waverley Local Court but later changed my pleas to guilty. I take full responsibility for my actions and have been honest in providing my version of events.
[73] Applicant’s closing submissions dated 25 February 2025.
Tribunal’s consideration of the nature and seriousness of the conduct
The Tribunal has considered the written material and submissions by both parties. The Tribunal makes a finding that the Applicant’s conduct can be properly described as very serious within the definition of paragraph 8.1.1(1)(a) of the Direction as it involved a crime of a violent nature against a woman. The offending also occurred in the context of an intimate relationship which therefore also places the conduct (and repeated breaches of the ADVO) within the definition of paragraph 8.1.1(a)(iii) of the Direction (being acts of family violence). The Tribunal notes that the definition of ‘family violence’ in paragraph 4(1) of the Direction is defined as violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Examples of behaviour that may constitute family violence include an assault, stalking, repeated derogatory taunts or intentionally damaging or destroying property. For the purposes of the definition of family violence, a ‘member of the person’s family’ includes a person who has, or has had, an intimate personal relationship with the relevant person (paragraph 4(1) of the Direction. In this case, the Applicant and the victim were in an intimate personal relationship for approximately two years prior to the offending. They were residing together at the time. There is no doubt that the actions of the Applicant on the evening of 18 March 2022 were acts of family violence, as were his repeated breaches of his ADVO between May and July of that year.
The Tribunal has had regard to the factors listed in paragraph 8.1.1(1) of the Direction, including the impact on the victim, the frequency of the Applicant’s offending, and the cumulative effect of repeated offending.
For the reasons set out above, the Tribunal considers that the nature and seriousness of the Applicant’s conduct weighs heavily in favour of exercising the discretion to refuse to grant the Applicant’s visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
c)where consideration is being given to whether to refuse to grant a visa to the non-citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
This paragraph requires decision-makers to consider the risk to the Australian community should a non-citizen engage in further offending or other serious conduct. Paragraph 4(2) of the Direction provides that, in this Direction, ‘serious conduct’ includes behaviour or conduct of concern that does not constitute any criminal offence.
In assessing risk, decision-makers are to have cumulative regard to the nature of the harm should the non-citizen engage in further criminal or other serious conduct and the likelihood of that occurring, taking into account information and evidence on risk, and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence.
The Respondent contends that, having regard to the nature of the Applicant’s offending, any future offending by the Applicant of a similar nature would have the potential to cause physical and/or psychological injury to the Australian community.[74] The Respondent also referred to Tanielu v Minister for Immigration and Border Protection in which her Honour Justice Mortimer (as her Honour then was) stated:[75]
It is well established that, where the harm which might be caused by future conduct is particularly serious, a lesser likelihood of the conduct occurring may be required for the risk to be identified at a level requiring a particular decision to be made. It is also well established that the likelihood of a person engaging in conduct in the future is affected by both static and dynamic factors: that is, factors which can be assessed objectively against statistical models to predict the risk category a person falls into, and dynamic factors personal to an individual which may moderate or exacerbate the risk the person otherwise could be said to pose. Those factors might include family support, alcohol and drug abuse patterns, employment and the like.
[74] Exhibit R2 [43].
[75] Ibid [41] citing Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 [103].
The Respondent also drew upon her Honour’s comments in Assistant Minister for Immigration and Border Protection v Splendido which found that present circumstances of an individual might also bear on the risk of whether past offending might or might not be repeated.[76]
[76] Exhibit R2 [42] citing Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132 [78].
The Respondent notes that the death of the Applicant’s father in December 2021 had a significant and adverse impact on his mental health.[77] The Applicant sought assistance from a psychologist whom he saw for a number of sessions. As the Respondent notes, the Applicant has since ceased therapy due to financial constraints.[78] Although the Respondent accepts that the Applicant would have experienced some mental health challenges at the time of the offending due to his father’s passing, the Respondent contends that this does not diminish the very serious nature of the offending conduct, remove or reduce his responsibility for the offending, or lessen the significant impact his offending would have had on the victim.[79]
[77] Exhibit R2 [44].
[78] Ibid.
[79] Ibid [45].
The Respondent also contends that, despite it not being a condition of his Intensive Correction Order, the Applicant has not engaged in any voluntary rehabilitation programs aimed at addressing his behaviour.[80] The Applicant did provide screenshots which state that he is on the waitlist for a Men’s Behaviour Change program, however the Applicant’s evidence to the Tribunal was that he is still on the waitlist for that program.
[80] Ibid [54].
The Respondent further contends that the Applicant will likely face similar circumstances of ‘emotional turbulence, pressure, or grief’ in the future, being circumstances which the Applicant contended contributed to his offending behaviour. The Respondent acknowledges the Applicant’s remorse but submits that he has failed to demonstrate sufficient insight into the harm caused by his behaviour. The Respondent contends that having regard to the nature and seriousness of the Applicant’s offending and conduct, and risk to the Australian community should he reoffend, this primary consideration weighs very heavily in favour of visa refusal.[81]
[81] Ibid [58].
In his written submissions dated 14 August 2024, the Applicant notes that ‘there is no risk of future harm’ and that his actions were in the context of deteriorating mental health following the death of his father and the breakdown of his relationship with the victim.[82]
[82] Exhibit R1, 283, [18].
The Applicant notes that he has not committed any further offences, and is in a stable and committed relationship (as at 14 August 2024 being the date of these submissions).[83] The Applicant submits that his offending behaviour is out of character and that there is no risk to the Australian community.[84] In his undated written statement he notes he undertook therapy and has consistently sought support from his family and friends.[85] He also points to his commitment to maintaining ‘a positive and upstanding character’ through his local football sporting club, and has consistently demonstrated sportsmanship, teamwork, and respect for others.[86] During his evidence to the Tribunal, the Applicant did not consider himself a risk to the Australian community, and again reiterated that he does not consider himself a violent person.
[83] Ibid 283 [19]-[20].
[84] Ibid 284 [22].
[85] Ibid 267.
[86] Ibid.
In his written closing submissions, the Applicant points to his consistent work history and contribution to Australian society. He states he has ‘worked hard to become a better person, despite ongoing challenges with depression and anxiety’.[87]
[87] Applicant’s closing submissions dated 25 February 2025.
Tribunal’s consideration of risk
The Tribunal has considered the matter identified in paragraph 8.1.2 of the Direction against the specific circumstances of the Applicant’s case. The Tribunal has had regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the potential for serious harm increases. The Tribunal considers that the conduct and harm that would be caused, if it were to be repeated, is serious. The Tribunal does not consider that risk to be an unacceptable risk, having had regard to the factors that were operating in the Applicant’s life at the time of the offending, primarily the death of the Applicant’s father. This is not to excuse the Applicant’s offending in any way, but it is a factor that was relevant to the Applicant’s circumstances at the time.
In terms of assessing risk the Tribunal has considered the nature of the harm should the Applicant engage in further criminal or other serious conduct, and the likelihood of him engaging in that conduct. There is limited material before the Tribunal regarding evidence of rehabilitation apart from a one-page letter from the Applicant’s psychologist, which described the condition the Applicant was suffering (being a Major Depressive Episode) and the cause of that condition which stated that the ‘grief surrounding the death of [the Applicant’s] father in December 2021 was definitely one clear contributing factor’.[88] Further, the letter advises (that as of 9 August 2024) the Applicant ceased sessions in April 2022. The Tribunal accepts the Applicant’s evidence that he was under financial constraints and could not continue with the sessions. However, the Tribunal considers that the Applicant could have been more proactive in seeking other options to address his rehabilitation, such as seeing his GP or seeking other sources of counselling.
[88] Exhibit R1, 258.
The Tribunal acknowledges that the Applicant has made efforts to enrol in a Men’s Behaviour Change Program, but also notes that those screenshots are dated 9 December, and state that they are experiencing extensive wait times for this program and are not able to provide an expected start date for 2025.[89] The Tribunal notes that the Applicant was sentenced for his offending in August 2022 and could have made efforts to enrol in this program sooner.
[89] Ibid 16-7.
The Tribunal also notes with concern the further incident with the Applicant’s current partner in September 2024. Although that incident did not result in criminal charges, the Applicant again was faced with the breakdown of a relationship, and again after drinking at a licensed premises, had an altercation with his partner, which resulted in witnesses intervening and the victim speaking to police.
The Tribunal considers that there is a risk that the Applicant could reoffend in the future. The nature of the harm to individuals and the Australian community would be significant. The Tribunal does not consider that the Applicant has taken appropriate steps to avail himself of rehabilitative programs or courses to address his offending behaviour in the almost two and a half years since he was convicted. The Applicant has attempted to minimise his behaviour and has consistently maintained that the more serious aspects of his offending (such as striking the victim with a closed fist and kicking her) did not occur. The Tribunal is unable to make favourable findings in respect of the Applicant’s rehabilitative efforts when he has failed to undertake any voluntary courses and continues to downplay his conduct. The Tribunal finds that the factors at paragraph 8.1.2 of the Direction weigh heavily in favour of exercising the discretion to refuse to grant the Applicant a visa.
Tribunal’s conclusion on primary consideration 1

The Tribunal therefore concludes that this primary consideration as a whole weighs very heavily in favour of exercising the discretion to refuse to grant the Applicant a visa.
The Tribunal gives this primary consideration greater weight than the other primary considerations due to the nature and seriousness of the offences and risk to the Australian community should the Applicant engage in further offences or other serious conduct.[90]
[90] As permitted by paragraph 7(2) of Direction 110.
Primary consideration 2 – whether the conduct engaged in constituted family violence
Paragraph 8.2(1) of the Direction states that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Direction states that the Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in.
Paragraph 8.2(2) provides that this consideration is relevant 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.
Paragraph 8.2(3) provides that in considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered where relevant:
a)    the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b)    the cumulative effect of repeated acts of family violence;
c)    rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour        on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)    Whether the non-citizen has re-offended since being formally warned, or since Otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.
As previously mentioned, the terms ‘family violence’ and ‘member of the person’s family’ are defined in paragraph 4 of the Direction. There is no question that the Applicant’s criminal offending can be categorised as family violence which was committed against the victim with whom he had an intimate personal relationship.
The incidents of family violence, including incidents where there were no charges, are detailed at paragraphs [25] and [60] through to [63] above. The Respondent contends that the family violence perpetrated by the Applicant in this case should be regarded as very serious and be attributed significant weight in favour of the refusal of the Applicant’s visa.[91]
[91] Exhibit R2 [67].
The Applicant acknowledges in his written submissions dated 14 August 2024 that the Applicant’s offending constituted family violence.[92] It is submitted however that there is no increasing trend of seriousness, and that there are no further instances of conduct of this nature.[93] The Applicant submits that he has continued to address the factors which contributed to his conduct, by engaging with a psychologist and seeking enrolment in the Men’s Behaviour Change program.[94]
[92] Exhibit R1, 284 [27].
[93] Ibid 284 [30].
[94] Ibid 284 [32].
Tribunal’s consideration
In considering the seriousness of the family violence engaged in by Applicant, the Tribunal has had regard to the factors identified at paragraph 8.2(3) of the Direction.
In regard to the frequency of the Applicant’s conduct, and whether there is any trend of increasing seriousness, the Tribunal notes that the Applicant’s conduct can be described as frequent in that the incident occurred within a period of months (commencing on 18 March 2022 and ceasing on 27 July 2022). The offending in March 2022 was objectively more serious but the Tribunal has nonetheless had regard to the frequency of the conduct.[95]
[95] The Direction para 8.2(3)(a).
The Tribunal has also had regard to the cumulative effect of the Applicant’s repeated acts of family violence. The family violence commenced with physical violence committed against the victim and continued with repeated breaches of the ADVO on three separate occasions. The cumulative effect of the Applicant’s offending would no doubt have a significant impact on the victim. The Australian Institute of Health and Welfare has published material which states that intimate partner violence can have long-lasting impacts on an individual’s physical and mental health as well as their economic and social wellbeing.[96] The Tribunal has taken the nature of this impact into account when considering the cumulative effect of the Applicant’s repeated acts of family violence.[97]
[96] Australian Government, Australian Institute of Health and Welfare, ‘Family, domestic and sexual violence’ Intimate partner violence’ website updated 24 November 2023 < The Direction para 8.2(3)(b).
In regard to the Applicant’s rehabilitation achieved at the time of the Tribunal’s decision, the Tribunal acknowledges that the Applicant had engaged in some psychological counselling and sought enrolment in a Men’s Behaviour Change Program. However, it is clear from the Applicant’s own statements that he still disputes the salient facts of the offending as provided for in the NSW Police Fact Sheets. He admits to pushing the victim but denies striking her with a closed fist or kicking her. He does state that he takes full responsibility for his actions, but still disputes the facts as presented. He states he fully accepts responsibility for placing himself in those situations ‘in the first place’. In this regard, although the Applicant did plead guilty to the offences, the Tribunal cannot be satisfied that the Applicant has accepted responsibility for his conduct as he continues to maintain he did not commit the objectively more serious incidents of punching and kicking the victim.[98]
[98] The Direction 8.2(3)(c)(i).
The Tribunal also has concerns with regard to the extent to which the Applicant understands the impact of his behaviour on the victim. The Applicant states in his written closing submissions ‘I have provided my version of events and stand by what I have said. I have acknowledged my actions, including admitting to pushing the victim, an act that I deeply regret. If this caused any harm or distress to the victim, I can only offer my sincere apology’. The Tribunal is of the view that without a full acknowledgement of the facts and circumstances of the incident for which he pleaded guilty, his apology to the victim for ‘pushing’ impacts to a degree the level of rehabilitation that can be achieved as there is not a full acknowledgement of the conduct.[99] The Tribunal has taken this consideration into account.
[99] Ibid 8.2(3)(c)(iii).
As detailed above, the Tribunal does acknowledge the efforts the Applicant has taken to address the factors which contributed to his conduct.[100] The Tribunal is concerned however that the Applicant was involved in a recent subsequent incident with his current partner in September 2024. Like the previous incidents, it occurred in the context of a breakdown of the relationship and after the Applicant had frequented a licensed venue and consumed alcohol. Although that incident did not result in police charges, police were involved. This subsequent incident does not give the Tribunal confidence that the Applicant has adequately addressed the factors which contributed to the more serious family violence conduct in the first instance.
[100] Ibid
Paragraph 8.2(3)(d) addresses situations where the non-citizen has re-offended since being formally warned, or being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence. This is applicable in the Applicant’s case. Here, the Applicant has continued to offend and breach his ADVO on three occasions, not only breaching conditions of those Orders, but also breaching the conditions of his bail which mirrored the conditions of his ADVOs. Even putting to one side the subsequent incident in September 2024, the Tribunal has taken note of the extent of the Applicant’s re-offending since his most serious offence in March 2022.
Tribunal’s conclusion on primary consideration 2
Having taken all of the above into account, the Tribunal concludes that this primary consideration ought to weigh heavily in favour of exercising the discretion to refuse to grant the Applicant a visa.
Primary consideration 3 – the strength, nature and duration of ties to Australia
Paragraph 8.3 of the Direction provides that decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia. This primary consideration also provides that where consideration is being given to cancel a visa or whether to revoke the mandatory cancellation of the visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community.
With regard to this primary consideration, the Respondent notes the following:[101]
(a)that the Applicant has resided in Australia since September 2019, and therefore has not spent his formative years in Australia;
(b)the Applicant does not have any immediate or extended family in Australia;
(c)the Applicant’s current partner is an Australian citizen (although the extent of this relationship is unknown, as this is the partner who reportedly tried to end the relationship in September 2024, as per her report to police). The Applicant’s evidence to the Tribunal was that they are not ‘partners’ but they are ‘seeing each other’;
(d)the Applicant has provided letters of support which illustrate his ties to Australia, including from friends of the Applicant, the manager of his local soccer team, and a reference from his former employer in the UK. The Respondent contends that these individuals would not suffer more than minor emotional hardship as a result of the Applicant’s visa refusal.
[101] Exhibit R2 [69].
The Respondent does accept that the Applicant has ties to Australia and that there will be a negative effect if there is a decision to refuse the Applicant’s visa application. The Respondent contends in their written closing submissions that this consideration weighs only slightly in the Applicant’s favour.[102]
[102] Respondent’s closing submissions dated 15 February 2025 [13a].
The Applicant contends in his written submissions dated 14 August 2024 that he and his current partner have a strong bond and are dedicated to supporting each other through life’s challenges.[103] The Applicant also relies upon his additional ties with his friends in Australia and his membership and contribution to his local soccer team.[104]
[103] Exhibit R1, 285 [40].
[104] Ibid, 285 [42]-[43], [45]-[46].
The Applicant submits he has ‘strong, deep and extended ties to Australia’ that should be strongly considered in the Applicant’s favour.[105]
[105] Ibid 286 [48].
Tribunal’s consideration
The Tribunal has considered the various letters of support and acknowledges the Applicant’s ties to Australia. The Tribunal notes that the Applicant has been resident in Australia since 2019 and has been employed in various jobs since that time. The Tribunal acknowledges the nature of his ties to Australia through friendship groups and his local soccer team. The Applicant commenced offending after being resident in Australia for approximately three years. The Tribunal accepts that the Applicant has made positive contributions to Australia through his work in the construction field.
The Tribunal notes with concern however, as discussed at paragraph [57] above, that according to the Applicant, they were not fully informed of his offending behaviour. The Applicant did not call any character witnesses so the extent of their knowledge of the offending could not be fully tested.
Tribunal’s conclusion on primary consideration 3
On balance the Tribunal considers that this primary consideration does weigh in the Applicant’s favour, but only slightly.
Primary consideration 4 – the best interests of minor children in Australia
Paragraph 8.4 of the Direction requires decision-makers to make a determination as to whether visa cancellation or refusal under s 501, or non-revocation under s 501CA is, or is not, in the best interests of a child affected by the decision. Various factors are identified which must be considered where relevant (paragraph 8.4(4) of the Direction).
The Applicant has not provided any evidence that there is a child in Australia who will be affected by a decision to refuse his visa application.
The Tribunal finds that this primary consideration is not relevant to its decision and gives it no weight.
Primary consideration 5 – expectations of the Australian community
Paragraph 8.3 of the Direction provides:
(1) 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.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a)acts of family violence; or
b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f)worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) 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.
This primary consideration requires decision-makers to consider the expectations of the Australian community as articulated by the Australian Government, without independently assessing the community’s expectations in a particular case. This ‘deemed community expectation’ must be understood and applied normatively.[106]
[106] FYBR v Minister for Home Affairs (2019) 272 FCR 454 [91].
The Respondent contends that, in light of the extent and seriousness of the Applicant’s criminal offending, this primary consideration weighs heavily in favour of exercising the discretion to refuse to grant the Applicant’s visa.[107]
[107] Exhibit R2 [79].
In his written submissions dated 14 August 2024, the Applicant concedes that his conduct likely amounts to conduct in breach of the community’s expectation, and that it would ordinarily be expected that the Applicant be removed.[108] The Applicant refers to two previous Tribunal decisions which the Applicant contends allows a decision-maker to consider factors particular to the case which might affect the weight to be afforded to this primary consideration.[109] For example, the Applicant refers to Bennett and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) where it was noted at paragraph 285 of that decision:[110]
The next question is whether there are any factors which might vitiate or, perhaps more conservatively, counteract the Australian community’s expectation that the Applicant cease to hold a visa. I accept that the Applicant has a strong employment history, and that he has paid taxes in this country. I also accept that he came here at the age of just two years old. This, to my mind, should reasonably attract some weight in the Applicant’s favour.
[108] Exhibit R1, 286 [52].
[109] Ibid [53]-[55] referring to Bennett and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1462 [285], Ali and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5232 [255].
[110] Exhibit R1, 286 [54].
To that end, the Applicant relied on the following (as summarised):
·He has been in Australia for approximately five years;
·He has ‘extensive relationships with Australian citizens’ who advise and support a conclusion that the behaviour, whilst serious, is completely out of character for the Applicant;
·The offending was in the context of domestic violence in a relationship which has since ended;
·The Applicant has engaged with a psychologist and that his current psychopathology is sound;
·The context in which the offending occurred, namely following the passing of the Applicant’s father;
·The contextual situation is a ‘point in time’ concern and not a reflection of the Applicant’s total character.
The Applicant submits that based on the above, the expectations of the community ‘would not be offended’ if the Applicant remained in Australia.[111]
[111] Ibid 287 [56].
Tribunal’s consideration
The Tribunal has considered the relevant material in this matter. The Tribunal has applied the expectations of the Australian community as articulated in the Direction. Visa refusal in this case is appropriate because of the nature of the offences of which the Applicant has been convicted (being acts of family violence as articulated in paragraph 8.5(2)(a) of the Direction). The Australian community would expect such a person to not be granted or continue to hold a visa.
Tribunal’s conclusion on primary consideration 5
The Tribunal has decided that this primary consideration weighs heavily in favour of exercising the discretion to refuse to grant the Applicant a visa.
Other consideration 1 – legal consequences of the decision
Paragraph 9.1 of the Direction provides that decision-makers should be mindful that unlawful non-citizens are, in accordance with s 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section. This other consideration also deals with Australia’s non-refoulement obligations and the effect of non-citizens are covered, or not covered, by a protection finding.

The Respondent notes that the Applicant has not made any claims which require assessment in relation to Australia’s non-refoulement obligations, nor is there any evidence that they arise in this case.[112] The Respondent also notes that no protection finding has been made in relation to the Applicant.[113]
[112] Exhibit R2 [83].
[113] Ibid.
The Tribunal acknowledges that there are some intended legal consequences of a decision under s 501(1) in that all other visas will be cancelled, and he would be precluded from applying for certain types of visas.[114]
[114] Exhibit R1, 22.
There is no evidence that non-refoulement obligations are engaged in this case, nor is the Applicant subject to a protection finding.
On balance, the Tribunal ascribes this other consideration only very limited weight in the Applicant’s favour.
Other consideration 2 – extent of impediments if removed
Paragraph 9.2 of the Direction states that decision-makers must consider 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).
Decision-makers are to have regard to the non-citizen’s age and health, where there are substantial language or cultural barriers, and any social, medical and/or economic support available to them in that country.
As noted by the Respondent, the Applicant is currently 33 years old and has resided in Australia since he was 27 years old.[115] He is unlikely to face substantial language or cultural barriers, and will likely have access to social, medical and/or economic support in the United Kingdom, which is of a comparable standard to Australia.[116] The Respondent also notes that in the Applicant’s Personal Circumstances Forms he indicated that he would not have any problems if he had to return to his home country.[117] As such, the Respondent contends that the Applicant would not face any impediments upon resettlement and that this other consideration carries no weight against visa refusal.[118]
[115] Exhibit R2 [86a].
[116] Ibid [86c].
[117] Ibid [86d].
[118] Ibid [87].
The Applicant gave evidence that if he had to return to the United Kingdom, he would hope to have the support of his family and friends who reside there to assist him in reestablishing himself. He gave evidence that he came to Australia for a better life and doesn’t want to return to the United Kingdom. He did not provide any evidence that he would face any particular impediments if he were returned home. The Applicant is not currently receiving treatment for his mental health, and the Tribunal accepts the Respondent’s submissions that it would be open for the Applicant to receive a comparable level of care for his mental health in his home country should he seek treatment. Further, the Applicant has transferable skills as a trades assistant and could potentially find employment in a similar field in his home country.
Weighing the above, the Tribunal gives this other consideration only very limited weight in the Applicant’s favour.
Other consideration 3 – impact on Australian business interests
Paragraph 9.3 of the Direction states that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia.
The Applicant has stated in his closing submissions that he had previously worked for independent builders on major projects across New South Wales.[119] The Applicant’s evidence to the Tribunal is that he is not currently working. The Applicant otherwise has not made a claim under this other consideration.
[119] Applicant’s closing submissions dated 25 February 2025.
The Tribunal notes the wording of paragraph 9.3.(1) of the Direction which states that when considering the impact on Australian business interests, an employment link would generally only be given weight where the decision would significantly compromise the delivery of a major project or important service in Australia. This is not applicable in the Applicant’s case.
As such, the Tribunal gives this other consideration neutral weight.
CONCLUSION
The Tribunal has found that the Applicant does not pass the character test pursuant to
s 501(6)(d)(i) of the Act. Having failed the character test, the Tribunal had to determine whether it should exercise the discretion under s 501(1) to refuse to grant the Applicant a visa. In doing so, the Tribunal applied the Direction to the specific circumstances of the Applicant’s case.
The Tribunal considers the Applicant’s offending as very serious. It involved multiple instances of family violence. The Tribunal determined that primary considerations 1, 2 and 5 weigh heavily in favour of exercising the discretion to refuse to grant the Applicant a visa. The Tribunal found that primary consideration 3 and other considerations 1 and 2 weigh only slightly in the Applicant’s favour. The Tribunal afforded other consideration 3 neutral weight. As permitted by paragraph 7(2) of the Direction, the Tribunal has given greater weight to primary consideration 1. The Tribunal has also given greater weight to the primary considerations than the other considerations.
Having weighed all the relevant considerations individually and cumulatively, the Tribunal finds that the discretion under s 501(1) should be exercised to refuse to grant the Applicant a visa.
DECISION
The decision under review is therefore affirmed.

I certify that the preceding 151 (one-hundred and fifty-one) paragraphs are a true copy of the reasons for the decision herein of General Member K. Thornton

............................[SGD]............................................
Associate
Dated: 4 March 2025

Date of hearing: 24 February 2025

Date final submissions received: 25 February 2025

Applicant: Self-represented

Advocate for the Respondent: Mr Matthew Gauci

Solicitors for the Respondent: Hunt & Hunt Lawyers

BTZ19 v Minister for Home Affairs [2019] FCA 1301.

Date of hearing:	24 February 2025
Date final submissions received:	25 February 2025
Applicant:	Self-represented
Advocate for the Respondent:	Mr Matthew Gauci
Solicitors for the Respondent:	Hunt & Hunt Lawyers