Tapiwanashe Shaun and Minister for Immigration and Citizenship (Migration)
[2025] ARTA 1164
•29 July 2025
Tapiwanashe Shaun and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1164 (29 July 2025)
Applicant:Tapiwanashe Shaun Kagoro
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3513
Tribunal:Senior Member G McCarthy
Place:Canberra
Date:29 July 2025
Decision:The decision under review is affirmed.
……………[SGD]……………………….
Senior Member G McCarthy
CATCHWORDS
MIGRATION – review of discretionary decision to refuse the grant of a bridging visa under section 501(1) of Migration Act 1958 – applicant accepts he does not pass character test – consideration of Direction No. 110 for the purpose of deciding whether the discretion to refuse the grant should not have been exercised – convictions for serious offences involving family violence and violence towards a woman – 45 convictions for breach of bail protection orders and family violence orders – 12 convictions for serious driving offences – primary considerations concerning safety of the Australian community, family violence and the expectations of the Australian community outweighed considerations in favour of setting aside refusal of the visa – decision affirmed
LEGISLATION
Migration Act1958 (Cth) ss 499, 500, 501, 501F
CASES
Bainbridge and Minister for Immigration, Citizenship and Alta cultural Affairs [2023] AATA 4184
Bainbridge and Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs ]2023] FCAFC 138
Khaled Ayache and Minister for immigration and Border Protection [2018] AATA 310
Fetelika and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 2606
FYBR v Minister for Home Affairs [2019] FCAFC 185
Frugtniet v ASIC [2019] HCA 16
HSRN and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 4377
LPDT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor [2024] HCA 12
Manebona and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 3321
Murphy v Minister for Home Affairs [2018] FCA 1924
Uelese v Minister for Immigration and Border Protection54 [2015] FCA 358
YNQY and Minister for Immigration and Border Protection [2017] FCA 1466SECONDARY MATERIALS
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (dated 7 June 2024)
REASONS FOR DECISION
On 12 February 2025, the applicant applied for a Partner (Temporary) (Class UK) visa and a Partner (Residents) (Class BS) visa. Where the applicant was in Australia unlawfully because he did not hold a visa of any kind, his application was also a deemed application for a Bridging E (Class WE) visa (the visa).[1]
[1] G documents, 89-111
On 19 March 2025, a delegate of the Minister informed the applicant of the intention to consider whether to refuse his application for the visa under s 501(1) of the Migration Act 1958 (Cth) (the Act) because he did not pass the character test as explained in s 501(6) of the Act.[2]
[2] G documents, 58-62
On 16 April 2025, the applicant provided his response.
On 7 May 2025, a delegate of the Minister informed the applicant that, by decision made on 2 May 2025, his application for the visa was refused (the decision under review).[3] By operation of s 501F(2) of the Act, the applicant’s Partner visa applications were also taken to be refused.
[3] G documents, G2/15
The delegate provided a statement of reasons for why the applicant did not pass the character test (as defined in s 501 of the Act) and why the delegate was exercising their discretion to refuse the visa, having regard to the primary and other considerations in Direction 110.[4]
[4] G documents, G4/19
On 14 May 2025, the applicant applied to the Tribunal under s 500(1)(b) of the Act for review of the Minister’s decision.[5]
[5] G documents G1/1
On 16 July 2025, I heard the application.
After evaluating the evidence and the parties’ respective submissions by reference to the Minister’s direction made under s 499 of the Act, Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, dated 7 June 2024 (Direction 110), I concluded, on balance, the Minister’s decision to refuse to grant the applicant the visa should be affirmed.
What follows are my reasons for doing so.
FACTUAL BACKGROUND
The Applicant is a citizen of Zimbabwe, now aged 29. He was born on 20 November 1995. On 16 April 2011, the Applicant arrived in Australia aged 15 and has lived here ever since.
The applicant arrived as a minor and was lawfully in Australia as a dependent under his father’s bridging visa until he was 18 years old.
The Minister stated that between 2015 and 2022, the applicant was convicted of 66 offences detailed below.[6] The applicant did not dispute that statement although, as best I can ascertain, 67 offences are recorded in the Check Results Report provided by the Australian Criminal Intelligence Commission.[7]
[6] Minister’s statement of facts, issues and contentions dated 4 July 2025 at [5]
[7] G documents, G 5/34
On 13 August 2020, the applicant was remanded in custody until 12 August 2022 on which day he was sentenced to terms of imprisonment by Massey DCJ of the District Court of Western Australia consequent on his pleas of guilty to six criminal charges detailed below. The total effective sentence was six years imprisonment, backdated to 13 August 2020 with a non-parole period of four years, namely to 13 August 2024.[8]
[8] Minister’s tender bundle at page 857
On 13 February 2025, the applicant was granted parole at which point he was transferred from prison to an immigration detention centre at Yoongah Hill, WA, where he is still detained.
The applicant’s criminal offending is extensive. He pleaded guilty to all offences and, at the hearing of his application in this proceeding, did not dispute any of the information in statements of material facts giving rise to the offences for which he was convicted.[9]
[9] Applicant’s first statutory declaration at [17]
The applicant’s case in summary is that at the time of his criminal offending he was “fighting my own demons” and making irresponsible life choices but he has now learned from his experiences. The applicant say he is motivated not to reoffend and wants to build a stable, positive future with his partner, who I will refer to as BB to protect her privacy. The applicant said he has learned better communication, consequential thinking and anger management skills through programs he completed in prison. He referred to his relapse prevention plan which outlines his commitment to using coping strategies like exercise, hobbies, seeking support from BB and his pastor and maintaining self-care.
The applicant stated he understands he will not have a second chance and that if he reoffends he will be removed from Australia.
LEGAL BACKGROUND
Section 501(1) of the Act provides:
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 set out in s 501(6), which relevantly provides:
“For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7))
In Khaled Ayache and Minister for immigration and Border Protection (Ayache),[10] the Administrative Appeals Tribunal (the AAT) per DP Forgie said:
Section 501(1) is drafted in discretionary terms in that the Minister “may” refuse to grant a visa to a person who does not satisfy the Minister that the person passes the character test. It is not an unfettered discretion but a discretion that must be exercised within boundaries found in the Migration Act. Those boundaries may be express or they may be implicit when regard is had to the subject matter of the enactment under which the decision is made as well as from its object and underlying policy.
In the case of a discretionary decision of the sort provided for in s 500(1) (sic), s 499 of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under that Act provided the directions are about the performance of those functions or the exercise of those powers. Those directions must not be inconsistent with the Act or the Regulations made under it. The person or body to whom the directions are given must comply with them. The Minister has made a direction under s 499 for the purposes of decisions made under, among others, s 501(1). It is known as “Direction No. 65”.[11]
[10] [2018] AATA 310
[11] [2018] AATA 310 at [13]-[14]
Direction No 65 has since been replaced by Direction 110.
On review, the Tribunal’s function is to hear the matter afresh and to decide what it considers to be the correct or preferable decision on the evidence before it.[12]
[12] See, for example, Frugtniet v ASIC [2019] HCA 16 at [51]
THE CHARACTER TEST
The applicant accepted he does not pass the character test relevantly prescribed under s 501(6)(a) of the Act.[13] Having regard to his convictions and sentence to a term of imprisonment of 6 years and the definition of “substantial criminal record” in s 501(7) of the Act, that acceptance was plainly right. I find accordingly.
[13] Applicant’s statement of facts, issues and contentions filed on 13 July 2025 at [18]
EXERCISE OF THE DISCRETION
Pursuant to s 499(2A), when deciding whether the applicant should be refused the grant of the visa, and hence whether to affirm or set aside the decision under review, I was required to comply with Direction 110.[14]
[14] LPDT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor [2024] HCA 12 at [19]; Khaled Ayache and Minister for immigration and Border Protection [2018] AATA 186
The starting point was the eight principles in paragraph 5.2 of Direction 110:
5.2. Principles
The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 50 IC A. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2. (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 noncitizen poses a measureable 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 noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
Direction 110 then moves, in Part 2, to the topic: “Making a decision”. Paragraphs 6, 7, 8 and 9 in Part 2 (omitting the subparagraphs in paragraphs 8 and 9 for present purposes) state:
6. Making a decision
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.
7. Taking the relevant considerations into account
(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.
8. Primary considerations
In making a decision under section 501(1), 501(2) or 501CA(4), 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.
9. Other considerations
(1) In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on Australian business interests
In Manebona and Minister for Immigration, Citizenship and Multicultural Affairs, the AAT, per SM Manetta, commented on the operation of Direction 110 as follows:
The Direction is framed against the stated objective of the Act, which is to regulate, in the national interest, the presence of non-citizens in Australia: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(2) and (3) to consider the specific circumstances of the case. The explicit purpose of the Direction is to guide decision-makers in performing their functions under the Act: see paragraph 5.1(4).
Principles appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. They are stated in subparagraphs numbered (1) to (8). I set out some of the salient features of these principles.
First, remaining in Australia is a privilege conferred on non-citizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, the safety of the Australian community is the highest priority of the Australian Government. Accordingly, non-citizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia, and the Australian community expects that the Australian Government should cancel visas or refuse non-citizens a right of entry where they have engaged in conduct that raises serious character concerns. This expectation arises whether or not the non-citizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct may, however, be afforded to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the non-citizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove an insufficient counterweight. In particular, I note that the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may prove insufficient justification (to warrant not cancelling the visa, not refusing the visa, or revoking a mandatory cancellation), and this is so even if the non-citizen does not pose a measurable risk of causing harm to the Australian community.[15]
[15] [2024] AATA 3321 at [25]-[27]
I agree with and adopt those statements.
Pursuant to paragraph 6 of Direction 110, I took into account the primary considerations identified in paragraph 8 and the other considerations identified in paragraph 9 where relevant. Pursuant to paragraph 7, I gave greater weight to the first primary consideration than to the other primary considerations and greater weight to the primary considerations than to the other considerations.
For the reasons given by a Full Court of the Federal Court in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs (CRNL),[16] I then balanced the relevant considerations against each other and, by this means, evaluated whether the decision to refuse to grant the applicant the visa should be affirmed or set aside.[17]
[16] ]2023] FCAFC 138
[17] ]2023] FCAFC 138 at [139]
Protection of the Australian community - general
Regarding the first primary consideration, I gave consideration to paragraph 8.1(1) of Direction 110 which states:
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 principal 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.
When considering protection of the Australian community, I also gave consideration to the factors in paragraph 8.1(2):
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
I also had regard to the details in paragraphs 8.1.1 and 8.1.2 (and the subparagraphs within them) which provide details about the two considerations stated in paragraph 8.1(2).
Protection of the Australian community - nature and seriousness of the conduct
Paragraphs 8.1.1(1)(a)-(i) state eight factors to which I had regard when considering “the nature and seriousness of the [applicant’s] criminal offending or other conduct to date”.
Paragraph 8.1.1(1)(a) identifies three “types of crimes or conduct [that] are “viewed very seriously by the Australian Government and the Australian community”, the first of which is “violent and/or sexual crimes”. The subsection, however, does not limit “the range of conduct that may be considered very serious”.
When paragraphs 8.1.1(1)(a) and (b) are read together, it is clear that paragraph 8.1.1(1)(a) establishes that some types of crimes or conduct are viewed by the Australian Government and the Australian community as “very serious”, per paragraph 8.1.1(1)(a), whilst other types are viewed as “serious” per paragraph 8.1.1(1)(b).[18]
[18] LPDT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs and Anor [2024] HCA 12 at [21]-[27]
The applicant stated he understood the Minister’s concerns and the seriousness of his conduct[19] but did not comment on whether his conduct should be seen as serious or very serious.
[19] Applicant’s statement dated 16 April 2025 at [2]
The Minister submitted the applicant’s offending is very serious. The Minister noted the applicant’s criminal convictions between 2015 and 2022 as follows:
1) 23 convictions for breaches of a family violence restraining order.
2) 22 convictions for breaches of protective bail conditions.
3) 2 convictions for endangering a person’s life, health or safety.
4) 2 convictions of aggravated burglary.
5) 1 conviction for assault.
6) 1 conviction for criminal damage.
7) 2 convictions for providing false details to police.
8) 2 convictions for driving in excess of the blood alcohol limit.
9) 10 convictions for driving unlicensed or for driving an unlicensed vehicle.
10) 1 conviction for breach of a suspended imprisonment order.[20]
[20] Minister’s statement of facts, issues and contentions dated 4 July 2025 at [23]
The six offences for which he was sentenced on 12 August 2022 all involved violence towards a woman with whom he wanted to be in a relationship. To maintain her privacy, I will refer to her as AA. In my view, those offences must be viewed as very serious.
I set out details regarding these offences below. However, before doing so, I note an important feature of the applicant’s criminal history: his extraordinary indifference to the law.
As mentioned, the applicant has 10 convictions for driving unlicensed or for driving an unlicensed vehicle. He has never held anything but a learner licence, and does not now hold a driver licence of any kind. Of relevance in this proceeding, as the Minister pointed out, is the applicant’s indifference to the unlawfulness of driving without a licence. He was repeatedly convicted for doing so, and then repeatedly continued to do so often within very short periods after a conviction.
On 7 October 2019 the applicant was before the Magistrates Court of Western Australia in relation to two offences on 30 June 2019, namely giving false details to police and driving a car without a licence. These offences arose from the WA Police stopping a car the applicant was driving to conduct a random breath test and a licence check. When asked to provide his personal details, the applicant provided the name and date of birth of his brother, knowing he (the applicant) did not hold a driver licence. The applicant pleaded guilty to both charges.
When sentencing the applicant, the Magistrate noted:
I’m dealing with you on the basis that this is a fourth offence of its type, but you’ve accrued convictions in 2016 twice, 2017, then 2019, the last being for an offence on 13 June, and then this has occurred two weeks later on 30 June.[21]
[21] Minister’s tender bundle at page 605
Consequent on the applicant pleading guilty to the charges at an early opportunity and accepting responsibility for his actions, the Court sentenced the applicant to 6 months and 1 day imprisonment, wholly suspended, and disqualified the applicant from holding a driver licence for nine months. In closing remarks, the Magistrate said:
So I will just explain to you once more, Mr Kagoro, what this means now is you have six months and one day imprisonment as a threat against you that if you commit any offence in the next six months which carries a penalty of imprisonment, you risk been sentenced to prison.[22]
[22] Minister’s tender bundle at page 606
Notwithstanding the suspended sentence and the Court explaining to the applicant in clear terms what that meant, five months later on 6-7 March 2020 the applicant committed four of the six offences involving violence towards AA each of which carried a term of imprisonment.
At hearing in this proceeding, the applicant acknowledged the correctness of all the information in a document titled “amended statement of material facts” prepared by the prosecution for the purpose of the sentence hearing on 12 August 2022.[23] I therefore draw from that document and from the sentencing remarks of Massey DCJ when summarising the six offences for which he was convicted and sentenced.
[23] Minister’s tender bundle at page 861
Count 1 was a charge that the applicant committed an act with intent of endangering the life, health or safety of a person. The count involved the applicant’s conduct in 2019 when AA was trying to leave a relationship with him. Sometime between 30 April and 1 June 2019, the applicant went to AA’s house, became angry and accused her of sleeping with another man. Despite AA’s protests that she was not cheating on the applicant, he reached over AA who was sitting on a bench and took hold of her throat, pushed her against a pole. AA lost consciousness. When she regained consciousness, her body was shaking and she was scared as she thought she was having a fit. The applicant sat on the bench next to her and did not say anything.
In sentencing the applicant, DCJ Massey observed AA “was very vulnerable to you. In count 1, you were able to overpower her and strangle her to the extent that she passed out.”[24]
[24] Minister’s tender bundle at page 849
Counts 2 -5 involved the applicant’s conduct on 6 and 7 March 2020. On 6 March 2020 he went to AA’s house and into her back garden unannounced. He was asked to leave but refused to do so and demanded to know why AA would not return or answer his phone calls. When AA called the police, the applicant snatched her phone from her at the time she was talking to the police. When the applicant left, AA told the police their assistance was no longer required.
AA was away from her house on the night of 6-7 March 2020. While she was absent, the applicant entered her house, entered her bedroom and wrote on the walls “I was here” and “I love you [AA]”.
AA returned to her house in the early hours of 7 March 2020. Before entering her house, the applicant came out of the house. He grabbed AA by the throat with one hand, squeezing tight around her voice box. The applicant pushed AA backwards away from the house whilst holding her by the throat at which point she fell over. The applicant said to AA:
Stop making so much noise. You do not want to wake [your son] up because I’ll get into a fight. I’m that mad, I don’t even care what I do.[25]
[25] Minister’s tender bundle at page 864
The applicant told AA to get into a car because they were going for a drive. AA did not wish to go for a drive, but the applicant pushed her towards the car and told her to get in. AA got into the driver’s seat and the applicant into the passenger seat.
The applicant told AA to drive to a stated place, which was secluded, and made her drive up a dirt track and stop near a tower at which point he began yelling at her and hitting her on the top and back of her head. The applicant was fixated on whether AA had had sex with her friend that night and demanded to see her phone.
The applicant demanded AA get out of the car. He approached AA and punched her hard on the top of her head with his right fist. AA thought she was going to be sick and began to feel dizzy. The applicant then slapped and hit AA approximately 10 times on her back using his open hands. On four occasions AA tried to get away from the applicant, resulting in the applicant grabbing AA by the throat and squeezing.
During this incident, the applicant said things to AA such as:
Are you ready to die today?[26]
[26] Minister’s tender bundle at page 866
On the return drive, the applicant stated his love for AA who replied “I don’t want you to hurt me anymore. I just want you to leave me alone”. This made the applicant angry, so AA stopped talking.
AA reported the incident to the police at about 7am that morning, 7 March 2020. On 10 March 2020, the applicant was arrested and interviewed in relation to the events reported to have occurred on 7 March 2020. The applicant denied assaulting AA, saying he and AA go to that area to have sex but on 7 March 2020 they went to the area and talked. The applicant was released without charge pending further investigation.
When sentencing the applicant, Massey DCJ noted there were bail conditions in place that prevented AA from contacting the applicant and that their relationship was volatile but stated, notwithstanding:
The reality is that on several occasions you went to her house voluntarily and committed very serious acts of domestic violence towards her.[27]
[27] Minister’s tender bundle at page 848
Regarding the applicant making AA drive to an isolated location where she was alone with the applicant and where he assaulted and threatened her, Massey DCJ said:
The isolation alone made her very vulnerable to you and must have terrified her.[28]
[28] Minister’s tender bundle at page 849
Count 6 involved the applicant’s unannounced return to AA’s house on 4 July 2020, notwithstanding the events that occurred on 6-7 March 2020, and her pleas for the applicant to leave her alone. At about 2.20am on 4 July 2020, the applicant entered AA’s house through a bathroom window and then entered her bedroom where she was asleep with her five-year-old daughter asleep beside her. The applicant got into bed with AA who then told the applicant to leave. The applicant did not do so. He covered her mouth with his hand which made AA scared and unable to leave. Eventually the applicant left and AA called the police. Count 6 involved a further charge of aggravated home burglary and committing an offence.
Later that day, 4 July 2020, the applicant was arrested and charged with four offences arising from his actions on 6-7 March 2020. He was released from custody after entering a bail undertaking with the following protective bail conditions:
1) not to contact or attempt to contact AA by whatever means.
2) not to approach, contact or act in an intimidatory, offensive or emotionally abusive manner towards AA.
3) not to approach within a 100m radius of AA’s home address.
4) not to be within 50 m of AA or within 100 m of where she lives.[29]
[29] G documents, G5/38 – WA Police, statement of material facts
On 6 July 2020, the applicant was served with a family violence restraining order. Some of the terms of the order were that the applicant must not:
1) communicate or attempt to communicate with AA by any means whatsoever including SMS or text messages or any other electronic means;
2) enter or remain upon AA’s home address; or
3) approach within 50 m of AA.[30]
[30] G documents, G5/38 – WA Police, statement of material facts
The Check Results Report from the Australian Criminal Intelligence Commission records the applicant breached the protective bail conditions 22 times and the family violence order 23 times.
On 13 August 2020, the applicant was remanded in custody and remained in custody for two years before being sentenced on 12 August 2022.
Even when in custody facing serious charges arising from his assault of AA, on 15 April 2021 the applicant again breached the family violence order by sending her a letter.[31]
[31] Minister’s tender bundle at page 729
When sentencing the applicant for count 6, Massey DCJ said:
I also find it aggravating that you were spoken to by police on about 10 March 2020 in relation to the events that occurred on 7 March 2020. And although no charges were laid, you must have known full well that, at that stage, there were clear issues. You must have known that these events had distressed the complainant sufficient[ly] to go and complain to the police and yet, some four months later, you were back, .. entering her house without consent and holding a hand over her mouth in circumstances which must have terrified her.[32]
[32] Minister’s tender bundle at page 849
After pronouncing his sentence of imprisonment for each count and which terms were to be served concurrently or cumulatively, Massey DCJ said:
The total effective sentence is .., therefore, six years. The sentence is backdated to commence on 13 August 2020, and I make you eligible for parole. What all that means, Mr Kagoro, is you will be eligible for parole after you’ve served four years imprisonment from 13 August 2020. As I calculate it, your earliest release date is 13 August 2024. Whether you’re granted parole at that time is not a matter for me, it’s a matter for the Prisoners Review Board.[33]
[33] Minister’s tender bundle at page 857
Massey DCJ also made a family violence restraining order for the purpose of trying to protect AA, the terms of which effectively meant he was “not to have any contact or attempt to contact AA by any means or get anyone else to do so.”[34] The order included that the applicant not be in possession of a firearm or a firearms licence or obtain a firearms licence. The duration of the order was set at “life”.[35]
[34] Minister’s tender bundle at page 843
[35] Minister’s tender bundle at page 842
On 21 September 2022, the applicant appeared before the WA Magistrates Court and pleaded guilty to the 23 charges of breaching the family violence order and the 22 charges of breaching the protective bail conditions. The Court sentenced the applicant to 2 months imprisonment in relation to each of the charges, to be served concurrently with the term of imprisonment earlier imposed by Massey DCJ. In sentencing the applicant, the presiding Magistrate said:
These offences-certainly prolific offences-are very serious. They involve, and are quite rightly described by your counsel, Mr Kagoro, very much stalking-like behaviour. The persistence is really staggering, to say the least.[36]
[36] Minister’s tender bundle at page 680
To this comment, the applicant replied “yes”.[37]
[37] Minister’s tender bundle at page 680
The second and third types of crime or conduct, per paragraph 8.1.1(1)(a)(ii) and (iii) of Direction 110, “viewed very seriously” by the Australian Government and the Australian community are “crimes of a violent and/or sexual nature against women and children, regardless of the sentence imposed” and “acts of family violence, regardless of whether there is a conviction”. Where the applicant’s conduct was of both kinds, the Minister submitted that to these reasons also the applicant’s crimes should be viewed as very serious and weigh heavily in favour of refusing the grant of the visa. I agree.
Paragraph 8.1.1(1)(d) concerns the impact of the applicant’s offending on any victims of offending or other conduct and their family. This consideration was not addressed by the applicant or the Minister, expressly, but it is self-evident from the applicant’s crimes and the comments Massey DCJ made about them that this consideration added to the nature and seriousness of the applicant’s criminal offending. As Massey DCJ noted, AA was terrified.
Paragraph 8.1.1(1)(e) concerns “the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness”. This consideration too added to the nature and seriousness of the applicant’s criminal offending. The applicant’s criminal history comprising 66 or 67 offences culminating in the serious offences for which he was convicted on 12 August 2022, and which did not cease even after he was remanded in custody on 13 August 2020, amply demonstrates a trend of increasing seriousness.
Paragraph 8.1.1(1)(f) concerns “the cumulative effect of repeated offending”. I was not persuaded this factor is relevant when characterising or assessing the nature and seriousness of the applicant’s conduct. The offending continued and (in my opinion) would likely have continued but for the applicant’s incarceration, but I did not think something different and more serious has occurred by way of a cumulative effect arising from the totality of the applicant’s crimes. I put this factor aside.
Paragraph 8.1.1(1)(g) concerns the provision of false or misleading information to the Department including nondisclosure of prior criminal offending. There was no suggestion this factor is relevant, and I put it aside.
Paragraph 8.1.1(1)(h) is concerned with whether the applicant has re-offended since been formally warned or made aware about the consequences of further offending in terms of his migration status. There was no suggestion this factor is relevant, and I put it aside.
Paragraph 8.1.1(1)(i) concerns an offence or conduct committed in another country. That was not relevant, and I put it aside.
Protection of the Australian community - risk to the Australian community
Paragraph 8.1.2 of Direction 110 addresses the risk to the Australian community should the applicant reoffend or engage in other serious conduct. Paragraph 8.1.2 addresses, in particular, the need to protect the Australian community from harm. It relevantly states:
(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 noncitizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Of note is that paragraph 8.1.2(2) required me to consider, “cumulatively”, the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct and the likelihood of him engaging in such conduct.
In Murphy v Minister for Home Affairs (Murphy)[38] the Federal Court, per Mortimer J (as she then was), said:
.. part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community… of how serious the risk was, or whether the risk should be “tolerated”.[39]
[38] [2018] FCA 1924
[39] [2018] FCA 1924 at [37]
On the subject of risk, the applicant acknowledged “the grave nature of my past conduct and the importance of protecting the Australian community”, but submitted the risk he poses “has been significantly mitigated through genuine and sustained efforts at rehabilitation and ongoing supervision.”[40] The applicant stated he had “proactively engaged in and completed family violence and drug and alcohol rehabilitation programs which, he said, “have equipped me with vital insights and practical strategies to manage stressors, abstain from alcohol use, and prevent future coercive or controlling behaviours.”[41]
[40] Applicant's statement of facts, issues and contentions filed on 13 July 2025 at [20]
[41] Applicant's statement of facts, issues and contentions filed on 13 July 2025 at [22]
Referring to the applicant’s Parole Review Report,[42] I understood the applicant to be referring to two programs he completed whilst in prison: the Pathways Program which provides treatment to individuals who have a history of offending and substance use problems; and the Stopping Family Violence program which “targets criminogenic needs related to family violence for male offenders.”[43]
[42] Minister’s tender bundle at page 39
[43] Minister’s tender bundle at pages 39 and 247
The applicant completed the Pathways Program on 26 April 2024.[44] The completion report is positive about the applicant’s participation but concludes by stating:
To support Mr Kagoro in maintaining his abstinence upon release, it appears that he would benefit from receiving further support to address his AOD use, emotional management, consequential thinking, and communication and conflict resolution skills.[45]
[44] Minister’s tender bundle at pages 39 and 240
[45] Minister’s tender bundle at page 246
The applicant completed the Stopping Family Violence on 26 November 2024.[46] The Completion Report concludes by stating the applicant -
made some gains throughout the program which would suggest he has increased his insight into the factors underpinning his offending. Mr Kagoro has not yet had the opportunity to apply these skills and strategies in pertinent high-risk situations and community-based settings and may benefit from further counselling to consolidate his gains from the SFV program.[47]
[46] Minister’s tender bundle at pages 39 and 247
[47] Minister’s tender bundle at page 252
In response to the Minister’s submission that his rehabilitation has not been tested in the community, the applicant relied on the comprehensive nature of the programs he has undertaken and his demonstrated commitment to personal growth which is “reinforced by my compliance with parole”.[48]
[48] Applicant’s statement of facts, issues and contentions filed on 13 July 2025 at [24]
With reference to paragraph 8.1.2, the Minister submitted the applicant’s offences are very serious and “any likelihood” that they may be repeated is “unacceptable”.[49] The Minister acknowledged the applicant’s completion of rehabilitation programs whilst in prison but noted these have not been tested in the community. The Minister submitted it is “questionable whether the applicant would be able to refrain from alcohol use or from further coercive or controlling behaviours, particularly if he is exposed to substantial life stressors.”[50] The Minister submitted “any risk” should be considered “unacceptable” given the serious harm that could be visited on the community if the applicant were to reoffend and that this consideration “weighs heavily against revocation.”[51]
[49] Minister’s statement of facts, issues and contentions dated 4 July 2025 at [37]
[50] Minister’s statement of facts, issues and contentions dated 4 July 2025 at [38]
[51] Minister’s statement of facts, issues and contentions dated 4 July 2025 at [39]
The Minister’s submission that “any risk” of the applicant reoffending is “unacceptable”, and that this “weighed heavily against revocation” was (in my view) a contradiction in terms. As the AAT, per DP Boyle, stated in Fetelika and Minister for Immigration, Citizenship and Multicultural Affairs (Fetelika)[52] on the subject of unacceptable risk:
It is a submission that should be reserved for cases involving only the most serious of conduct and harm. A finding that “any risk that it may be repeated...[is] unacceptable” under para 8.1.2(1), is, in effect, a finding that an applicant’s visa must remain cancelled. If a risk is unacceptable, by definition, it cannot be accepted no matter how strong the countervailing considerations.[53]
[52] [2023] AATA 2606
[53] [2023] AATA 2606 AT [48]
In this case, I do not agree that “any risk” of the applicant reoffending is “unacceptable”, in the sense that risk alone is determinative of whether the applicant should be refused the visa. That said, in my view the risk of the applicant reoffending is significant, notwithstanding his completion of two rehabilitation programs whilst in prison, and weighs heavily in favour of refusing the grant of the visa. As the Minister pointed out, a noteworthy feature of the applicant’s criminal offending is his willingness to continue offending notwithstanding numerous repeated convictions. His repeated indifference to the law and to the importance of complying with the law is extraordinary.
The Minister gave, by way of an example, the circumstance of the applicant’s car being impounded for 28 days consequent on him driving without a licence and/or the car not being registered. Upon the car being returned to the applicant, he committed the offence again resulting in the car being impounded again. The Minister pointed out this occurred five times.
More seriously, as Massey DCJ pointed out, the applicant committed serious assaults on AA in March 2020 and, notwithstanding being interviewed by the police in relation to those offences and knowing he had committed them, he committed a further assault on AA in July 2020.
The applicant was remanded in custody August 2020 and has been detained in prison or immigration detention ever since. On balance, I considered the applicant’s past conduct to be a significant indicator of a significant risk of him reoffending and further harming the community notwithstanding his completion of two rehabilitation programs whilst in prison.
Protection of the Australian community from harm as a result of criminal or other serious conduct is the first of the primary considerations that must be taken into account, and to which I gave greater weight than to the other primary considerations when deciding whether the applicant should be refused the visa. Where I consider the nature and seriousness of his conduct is very serious and, in my view, there is a significant risk of the applicant committing further crimes that would harm the Australian community were he to remain in Australia, this consideration weighed heavily in favour of refusing the grant of the visa.
Family violence
The second primary consideration in paragraph 8 of Direction 110 is whether the applicant has engaged in conduct that constitutes family violence. Per paragraph 8.1.1(1)(a), acts of family violence “are viewed very seriously by the Australian Government and the Australian community”.
For the purpose of Direction 110, “family violence” is a defined term:
family violence means 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.
The definition then gives “examples of behaviour that may constitute family violence” including assault and stalking.
The applicant properly acknowledged his “past acts of family violence” which, he said, “I deeply regret and unequivocally condemn”.[54] The applicant acknowledged this consideration “weighs heavily against me”, but contended his significant efforts “towards rehabilitation and demonstrated understanding of the gravity of family violence should be given appropriate weight in the overall discretion, indicating a reduced risk profile.”[55]
[54] Applicant’s statement of facts, issues and contentions filed on 13 July 2025 at [25]
[55] Applicant’s statement of facts, issues and contentions filed on 13 July 2025 at [27]
In this regard, I took into account the comments of Massey DCJ who thought the evidence before him, including a letter from the applicant, suggested the applicant had good prospects of rehabilitation provided he could “stay off the alcohol and not hang around with a negative peer group” although noting “it is easier to get your alcohol usage under control when you’re in custody” and that when released from custody it “may be more problematic”.[56]
[56] Minister’s tender bundle at page 853
The Minister referred to many earlier decisions in which the AAT has confirmed the seriousness of family violence, describing it as, for example, a “pernicious blight” on the community.[57] The Minister referred to and relied on the applicant’s numerous breaches of family violence orders and protective bail conditions, which fall within the definition of family violence, in support of a submission that this consideration weighs heavily in favour of refusing the grant of the visa.
[57] Minister's statement of facts issues and contentions dated 4 July 2025 at [41]
As the applicant properly accepted, his acts of family violence and criminal convictions arising from his conduct weigh heavily in favour of refusing the grant of the visa. I accept the applicant has developed a greater insight into the seriousness of his conduct through his completion of rehabilitation programs whilst in prison, but that does not diminish the seriousness of his conduct. Nor am I persuaded that his improved insight has removed the risk of him committing further acts of family violence were he to be exposed to substantial life stressors involving a woman.
The second primary consideration weighs heavily in favour of refusing the grant of the visa.
Ties to Australia
The third primary consideration is the strength, nature and duration of the applicant’s ties to Australia. Paragraph 8.3 details this consideration as follows:
8.3. The strength, nature and duration of ties to Australia
(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) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
(b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant contended he has “exceptionally strong, enduring, and extensive ties to Australia, which should weigh significantly against refusing the visa”.[58] He noted he arrived in Australia as a 15 year old in 2011, and that Australia has been his home for the majority of his life. He relied on his eight-year de facto relationship in Australia with BB. The applicant relied on his many family members residing in Australia including his father, stepmother, 2 sisters, 2 step-sisters, 5 uncles, 4 aunts and 14 cousins and second cousins. Notwithstanding some of them holding only temporary resident visas, the applicant contended “their presence constitutes a vital and integral part of my personal and emotional support system within the Australian community.”[59]
[58] Applicant’s statement of facts, issues and contentions filed on 13 July 2025 at [28]
[59] Applicant’s statement of facts, issues and contentions filed on 13 July 2025 at [29]
The applicant contended the impact of visa refusal on his family members, particularly his de facto partner and his siblings, “would be profound, disrupting established relationships and support structures that have been built over more than a decade.”[60]
[60] Applicant’s statement of facts, issues and contentions filed on 13 July 2025 at [30]
The applicant contended the respondent’s position that this consideration weighed only moderately in favour of the grant of a visa “disregards the enduring and fundamental nature of these ties and their crucial and cultural role in my ongoing rehabilitation and reintegration”, presumably to follow if the applicant is granted a visa and released into the community.
The Minister did not take issue with the claimed facts regarding when the applicant arrived in Australia and his family members residing in Australia, although noting that the applicant’s father and sisters are temporary residents. In this respect, the Minister noted paragraph 8.3(1) of Directions 110 which states:
Decision-makers must consider any impact on the decision on the non-citizens immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
The Minister contended only moderate weight should be given to the applicant’s ties to Australia because the applicant started to offend soon after arriving in Australia and has continued to offend throughout his adult life.
In my view, the applicant’s claims about impact on his family members should he not be given a visa, and them constituting a vital and integral part of his personal and emotional support system, is not borne out by the evidence.
The applicant’s father provided a two paragraph character reference that was of little value and difficult to accept. The reference was written on 8 March 2025. The applicant’s father states he has known the applicant “since he was a child as a well-behaved person … until he was incarcerated”, yet the applicant had 14 criminal convictions as at 1 July 2019 and had committed all of the above-mentioned offences including serious assaults and aggravated burglary as at 6 July 2020. The applicant’s father stated the applicant was incarcerated “because of some small issues with his girlfriend”[61] which, at best, suggests the applicant’s father had no knowledge of the assaults on AA or their severity. Why the applicant’s father wrote that he believed the applicant to have “changed a lot” and “will be a changed person” if granted a visa was not explained. The applicant’s father made no mention of any impact the applicant’s removal from Australia would have on him.
[61] G documents, 150
The character reference from the applicant’s sister dated 9 March 2024 was also difficult to accept. The applicant’s sister stated one of the applicant’s “most admirable qualities is his kindness and empathy”, that he is “an individual of great integrity”, that his “actions consistently reflect strong moral principles” and that she has always “admired his ability to treat everyone with respect.” Having regard to the applicant’s extensive criminal history and his incarceration as at the date of the reference for the criminal assaults on AA, of which there is no mention in the reference, I do not agree with her opinions.
There was no other evidence from any other family member, oral or written.
The applicant’s de facto partner, BB, provided a character reference dated 6 March 2025 and a statutory declaration made on 13 March 2025. She stated she and the applicant had been living together since 2017 until he was incarcerated. She stated her belief that the applicant has “grown as a person”, that she has been with him “through these trying circumstances” and that he is “doing his best to improve and commit to a positive change”. She spoke about the programs the applicant has done whilst in prison, and stated she can “see that the programs he’s been on whilst doing his time, have helped him understand the causes of his past behaviours, which helped his overall growth as a person.” BB stated her strong belief in second chances and in “his ongoing commitment towards rehabilitation”. BB spoke about she and the applicant sharing finances “50/50”, their participation in church activities, their daily routines together and their commitment to each other.
BB gave oral evidence by telephone. She stepped out from a work training session to do so. When asked if she was aware of the applicant’s convictions, she said she knew he had some driving offences and had read a statement of material facts presented to the Court but did not elaborate on her knowledge of his wrongdoing.
I accept that refusal to grant the applicant a visa would impact the applicant’s de facto partner, BB, and this consideration weighs in favour of the grant of the visa, but I do not consider it would materially impact any other immediate family members who have a right to remain in Australia indefinitely: there is no independent evidence to support that conclusion.
Pursuant to paragraph 8.3(2), I also considered the strength, nature and duration of any other ties the applicant has to the Australian community. The evidence in this regard was slight. The applicant stated that prior to his incarceration he was working full-time at TIS Engineering as a trade assistant,[62] but I knew nothing about that work, for example how long he had worked there or what his work entailed. I had no evidence from his employer.
[62] Applicant’s statement dated 16 April 2025 at [45]
Likewise, the applicant stated he was a member of the Twin City Football Club, a soccer club, and a member of Church of Christ, Kalgoorlie, but I knew nothing further. No one from either of those organisations provided evidence regarding his participation or his ties to the community generally.
Pursuant to paragraph 8.3(2)(a)(i) and (ii), I had regard to how long the applicant has resided in Australia and what he has done during that time. I took into account that he arrived in 2011, aged 15, began offending in 2016 and consistently and repeatedly offended until incarcerated in August 2020. I had no independent evidence of any positive contribution the applicant has made to the Australian community.
Having regard to all of the evidence, the strength nature and duration of the applicant’s ties to Australia weighed in favour of him having a visa, but only lightly.
The best interests of minor children
The fourth primary consideration in paragraph 8 is the best interests of minor children in Australia.
The applicant stated he has a minor sister, aged 16 and two minor step-sisters aged 9 and 3. He stated he has a “strong and meaningful bond” with them and that they “look up to me as their older brother”. He relied on the “emotional connection and stability” he offered them which, he said, is “vital for their development and well-being”.[63]
[63] Applicant’s statement of facts, issues and contentions filed on 13 July 2025 at [31] – [32]
The Minister noted the applicant’s sister has only recently moved to Australia from Africa, is here on a temporary visa and will soon be an adult. What connection, if any, she has with the applicant was not addressed.
The applicant’s relationships with his step-sisters was not explained. It is also difficult to understand how he has a strong and meaningful bond with them, or why they look up to him, where he has been incarcerated since August 2020, meaning since his older step-sister was 4 years old and before the birth of his younger step-sister. It is also difficult to understand how their best interests weigh in favour of the applicant having a visa. In my view, the applicant claimed their interests weighed in favour of him having a visa but did so in his own interests.
Having considered the evidence, or lack of it, I gave this consideration neutral weight.
Expectations of the Australian community
The fifth primary consideration is the expectations of the Australian community. Paragraph 8.5 details this consideration as follows:
8.5. Expectations of the Australian Community
(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 consideration has been the subject of much judicial[64] and tribunal comment.[65] In summary, the Tribunal must regard the fifth consideration as a kind of deeming provision about what the Australian community expects, as articulated by the Minister. In particular, as a norm, the community expects a person who has engaged in serious conduct would not be allowed to remain in Australia. In relation to that norm, in FYBR v Minister for Home Affairs (FYBR), Charlesworth J sitting as a member of a Full Court of the Federal Court commented on this consideration, materially the same in an earlier Ministerial direction, as follows:
The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion. Flexibility in the decision-making process is reinforced by cl 8(4), which requires no more than that the government’s assessment of community expectations is “generally” to be afforded greater weight than the “other considerations” listed non-exhaustively in cl 12.[66]
[64] Uelese v Minister for Immigration and Border Protection54 [2015] FCA 358 at [64] – [65]; YNQY and Minister for Immigration and Border Protection [2017] FCA 1466 at [76]; FYBR v Minister for Home Affairs [2019] FCA 185 at [75] – [76] and [100] – 101]
[65] HSRN and Minister for Immigration, Citizenship and Multicultural Affairs [2022] AATA 4377 at [44]; Khaled Ayache and Minister for immigration and Border Protection [2018] AATA 310 at [60]
[66] [2019] FCAFC 185 at [75]-[76]
I refer also to Stewart J’s explanation of community expectations in FYBR:
To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
1. non-citizens will obey Australian laws when in Australia;
2. it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere;
3. in a particular case, the refusal of a visa may be appropriate simply because the nature of the character concerns or offences is such that they should not be granted a visa.
Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.” This limited expression of “community expectations” by the Government is, one would expect, quite uncontroversial which is an attractive feature given the heterogeneity of views in this area.[67]
[67] [2019] FCAFC 185 at [101]-[102]
The applicant stated he understood that the Australian community expects non-citizens to obey Australian laws and views serious conduct, particularly family violence and serious crimes against women, as unacceptable.[68] He stated he accepted that his actions “have fallen far short of these expectations.”[69]
[68] Applicant’s statement of facts, issues and contentions filed on 13 July 2025 at [37]
[69] Applicant’s statement of facts, issues and contentions filed on 13 July 2025 at [37]
The applicant contended, however, that the Australian community “also values personal reform and the opportunity for individuals who have served their time and genuinely rehabilitated to contribute positively to society.”[70] The applicant contended his commitment to rehabilitation is demonstrated through his engagement in relevant programs and ongoing compliance with parole”. He contended that whilst his past offending is contrary to community expectations, his “present and future conduct, driven by genuine rehabilitation and continued supervision, should inform the weight given to this consideration.”[71]
[70] Applicant’s statement of facts, issues and contentions filed on 13 July 2025 at [38]
[71] Applicant’s statement of facts, issues and contentions filed on 13 July 2025 at [37] – [39]
The Minister relied on paragraphs 8.5(2)(a) and (c) of Direction 110 quoted above. With reference to the applicant’s serious and numerous convictions, especially his serious offences involving family violence and crimes against AA of a violent and sexual nature, the Minister submitted the expectations of the Australian community should weigh “significantly in favour of refusal of the visa.”[72]
[72] Minister's statement of facts, issues and contentions dated 4 July 2025 at [56]
I accept the Minister’s submission. The applicant’s violence toward AA was extremely serious in May 2019, repeated with even more seriousness in March 2020 and repeated again in July 2020. Further, the applicant demonstrated a complete disregard for the law by repeatedly breaching family violence orders and bail protection orders that were made for the express purpose of protecting AA.
The applicant’s claim of a commitment to rehabilitation, demonstrated through his engaging in programs whilst in prison, was doubtful. The applicant remained in prison for six months after the date when he was eligible for parole. His parole review report dated May 2024 recommending denial of release on parole, comments on the applicant wanting to be placed on programs. The report states:
In each of these conversations he has presented as manipulative, making comments that placing him on the program would be “good for his rehabilitation” and suggesting that it would “improve” the lives of the facilitators.[73]
[73] Minister’s tender bundle at page 37
Last, I placed little weight on the applicant’s compliance with parole in circumstances where he was transferred directly from prison to immigration detention where he remains.
Having considered the applicant’s very serious conduct, the expectations of the Australian community weighed heavily in favour of refusing the grant of the visa to the applicant.
Other considerations
I turn to the three non-exhaustive “other considerations” in paragraph 9: legal consequences of the decision, extent of impediments if the Applicant is removed; and the impact of the decision on Australian business interests. Details concerning these three other considerations are provided in paragraphs 9.1 (including 9.1.1 and 9.1.2 concerning non-citizens covered or not by a protection finding), 9.2 and 9.3, respectively, which I took into account.
Legal consequences
The applicant acknowledged he had not raised claims based on Australia’s non-refoulement obligations and accepted this consideration should be given neutral weight.[74] The Minister agreed, as do I.
[74] Applicant’s statement of facts, issues and contentions filed on 13 July 2025 at [40]
Extent of impediments if removed
The applicant relied on him being in Australia since he was a teenager, and that all his social networks, professional skills and understanding of norms and systems are “entirely Australian-based”. Whilst acknowledging he would not face any explicit language or cultural barriers if removed, he said re-establishing himself in Zimbabwe would involve “navigating a completely unfamiliar adult environment, including securing sustainable employment, housing and social support”.[75]
[75] Applicant’s statement of facts, issues and contentions filed on 13 July 2025 at [41] – [42]
The applicant said he also has existing health conditions, hypertension and depression for which he requires ongoing management. The applicant said Zimbabwe’s healthcare system, although once robust, has significantly deteriorated and the public hospitals which serve the majority of the population are overcrowded, under-resourced and lack basic necessities. He said “user fees” present a significant barrier for many patients. He said the Zimbabwe health system would present a significant impediment to him maintaining basic living standards and his well-being.[76]
[76] Applicant’s statement of facts, issues and contentions filed on 13 July 2025 at [44]
The Minister noted the applicant is a relatively well 29-year-old man. The Minister said that whilst the applicant contends his high blood pressure and depression would be impediments to his removal, he has not explained how this would impact on his ability to establish himself and maintain basic living standards in Zimbabwe in the context of what is generally available to other citizens of that country. The Minister submitted this consideration should be given minor weight in favour of the visa not being refused.
As the Minister pointed out, paragraph 9.2(1) of Directions 110 required me to consider impediments to the applicant if removed from Australia to Zimbabwe, “in the context of what is generally available to other citizens” of Zimbabwe, taking into account his age and health; whether there are any substantial language or cultural barriers; and any social, medical and/or economic support available to him in Zimbabwe.
In that context, in my view, the extent of impediments is slight. True, the applicant would need to re-establish himself if returned to Zimbabwe but, as he acknowledges, he would not face any substantial language or cultural barriers in doing so.
The applicant states his health conditions to be hypertension and depression but there was no evidence from a medical practitioner about the nature or extent of those conditions. His parole review report deals with the applicant’s medical/mental health issues. It states he takes “BP Medication”, which I presume to be blood pressure medication, but also states “there are no psychological or psychiatric issues”, and “no known intellectual or physical disability issues”.[77]
[77] Minister’s tender bundle at page 38
I accept the applicant will need to re-establish himself if removed from Australia to Zimbabwe, and that that will be challenging in circumstances where he has not lived there since he was 15 years old, but he is now a mature adult. As he says, he will not face any explicit cultural or language barriers and will (I presume) have access to medical, social and/or economic support in the context of what is generally available to other citizens of Zimbabwe.
This consideration weighed in favour of the visa not being refused, but only lightly.
Impact on Australian business interests
The applicant acknowledged he has not raised any claims which could result in an impact on Australian business interests and that this consideration should be given neutral weight. The Minister agreed, as do I.
APPLICATION OF DIRECTION 110
The weighing exercise required me to address the precise circumstances of the individual case. The applicant relied on the observations of the Court in CRNL and on a summary of those observations given by the AAT, per DP Boyle, in Bainbridge and Minister for Immigration, Citizenship and Alta cultural Affairs (Bainbridge),[78] [79]regarding consideration of the relevant matters. In CRNL, the Court said:
34 … in order to meet the requirements of the Direction, the Tribunal had to undertake a process of balancing the different considerations, or evaluating them against and in comparison to each other, in order to arrive at a decision whether there is “another reason” to revoke the cancellation.
35. The balancing process is directed to determining whether there is “another reason” why the visa cancellation should be revoked. It requires an identification of the matters that may constitute “another reason” and bringing to bear the considerations that the Direction requires the Tribunal to take into account where relevant in determining whether or not the Tribunal is satisfied that there is another reason (or reasons) to revoke the visa cancellation. Some of the considerations set out in the Direction, where relevant, may weigh in favour of revocation, and so may constitute “another reason” capable of supporting the state of satisfaction required in order for revocation under s 501CA(4)(b)(ii) to occur. But whether they do qualify as a reason of that kind will need to be assessed in the context of different considerations set out in the Direction which may weigh against revocation, where relevant. That is why it is appropriate to describe it as a process of weighing and balancing. But to go beyond that to treat the Direction as mandating some sort of calculation of the net weight to be given to the considerations on each side is to lose sight of the ultimately evaluative nature of the statutory task.[80]
[78] [2023] AATA 4184 at [122].
[79] On appeal, the Federal Court set aside the AAT's decision in Bainbridge and Minister for Immigration, Citizenship and Multicultural Affairs but did not disagree with the AAT's’ summary of the principles in CRNL: Bainbridge and Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1080
[80] [2023] FCAFC 138 at [34]-[35]
The applicant submitted “the substantial and deeply rooted strength, nature and duration of [his] ties to Australia”, “the profound impact” on his minor sisters and the “significant impediments he would face” if removed “weigh very strongly in favour of granting the visa.”[81]
[81] Applicant’s statement of facts, issues and contentions filed on 13 July 2025 at [47]
The applicant also submitted his “demonstrated and ongoing commitment to rehabilitation”, including his completion of specific programs to address his offending behaviour and his “continued compliance with parole” provides “concrete evidence that the risk I pose has been mitigated.”
The applicant submitted that “upon a holistic weighing of all relevant considerations” the considerations on which he relied should outweigh the considerations against refusal of the visa.[82]
[82] Applicant’s statement of facts, issues and contentions filed on 13 July 2025 at [47]-[51]
The Minister similarly relied on CRNL and the AAT’s decision in Bainbridge as to how the Tribunal must weigh the competing considerations, but submitted the primary considerations weighing in favour of refusing the visa outweighed the considerations on which the applicant relied for why a visa should be granted. The Minister noted the safety of the Australian community is the highest priority of the Australian Government. The Minister submitted the nature and seriousness of the applicant’s criminal conduct, the significant risk of him reoffending and the expectations of the Australian community outweighed the considerations in favour of the applicant being granted a visa, such that the decision under review should be affirmed.
Arising from the first primary consideration, as the Minister properly observed, paragraph 8.1(1) required me to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. That priority reinforces the second principle in paragraph 5.2 of Direction 110. When weighing the competing considerations, I kept in mind the principle under paragraph 6 that remaining in Australia is a privilege that Australia confers on non-citizens (in this case the applicant) in the expectation that they are law-abiding, will respect Australian institutions and will not cause or threaten harm to individuals or the Australian community.
The applicant, by his repeated and very serious criminal conduct involving violence towards a woman, abused that privilege. In my opinion, there is a significant risk he would again harm the community if allowed to remain in the Australian community. The first primary consideration, to which I gave the greatest weight, weighed heavily in favour of refusing the grant of the visa.
The second primary consideration, where the applicant has engaged in conduct constituting family violence and for which he has been convicted, also weighed heavily in favour of refusing the grant of the visa.
The fifth primary consideration (expectations of the Australian community) also weighed heavily in favour of refusing the grant of the visa. Many of his criminal offences for which the applicant was convicted and imprisoned involved family violence which raised serious character concerns through his conduct. I took into account that the Australian community can and should expect refusal of the visa in these circumstances.
I weighed in the balance the several considerations on which the applicant relied in favour of the grant of the visa and why I should therefore set aside the decision under review, but regarded those considerations as neutral or lightly weighted for the reasons given.
Having balanced and evaluated the competing considerations, I concluded the primary considerations which weighed heavily in favour of refusing the grant of the visa outweighed the considerations in favour of revoking the decision under review and that the decision to refuse the Applicant’s application for a Bridging E (Class WE) visa should therefore be affirmed.
Date of hearing: 16 July 2025
Advocate for the Applicant: self-represented
Advocate for the Respondent: A Burgess
Solicitor for the Respondent: Australian Government Solicitor
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