Te Huia and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)

Te Huia and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 3547 (25 October 2022)
Division:GENERAL DIVISION
File Number: 2022/6758
Re:Lee Caanan Te Huia
APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT

Decision
Tribunal: R Cameron, Senior Member
Date:25 October 2022
Place:Melbourne

The Tribunal affirms the decision under review.
....................[sgd]....................................................
R Cameron, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of visa – Class TY Subclass 444 Special Category (Temporary) visa – applicant non-citizen born in New Zealand – repeated family violence offending – contents of Direction 90 – risk of re-offending –rehabilitation and remorse –expectations of the Australian community – decision affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Direction No. 90 – Migration Act 1958 – Direction under s 499: visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
R Cameron, Senior Member
25 October 2022
INTRODUCTION

The applicant seeks a review of the decision made on 11 August 2022 by a delegate of the respondent not to revoke the mandatory cancellation of the applicant’s Class TY Subclass 444 Special Category (Temporary) Visa (“the visa”) pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) (“the reviewable decision”).
On 22 October 2020 the visa was cancelled by a delegate of the respondent under s 501(3A) of the Act (“the cancellation decision”). The reason for the cancellation was that the applicant did not pass the character test on the grounds that he had a substantial criminal record within the meaning of s 501(6)(a) of the Act.
On 26 October 2020, the applicant sought revocation of the cancellation decision by making representations to the delegate of the respondent. Such representations included a Personal Circumstances Form together with supporting documentary evidence. The applicant made further submissions together with supporting evidence on 8 April and 8 July 2022.
The applicant applied to this Tribunal seeking to have the reviewable decision set aside on 22 August 2022. A hearing was conducted by videoconference on 12 October 2022, at which the applicant was the only witness.
LEGISLATIVE FRAMEWORK
Under s 501(3A) of the Act, the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of s 501(6)(a) (substantial criminal record), on the basis of s 501(7); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) of the Act is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by ss (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[1]
[1] Migration Act 1958 (Cth) s 501(7)(c).
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is “another reason” why the original decision should be revoked.
Under s 499(1) of the Act, the Minister may give written directions to a person or body having functions or powers under the Act if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act must comply with such direction (s 499(2A) of the Act). The Tribunal must comply with a direction made under this Act. Currently, the applicable direction is Direction No. 90 – Migration Act 1958 – Direction under s 499: visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“Direction 90”).
DIRECTION 90
It is not necessary to reproduce in full sections of Direction 90. However, it is useful to refer to several of them.
Clause 4 “Interpretation” contains a very broad definition of the term “family violence”. The term is defined to mean 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 or a sexual assault or other sexually abusive behaviour, amongst other things.
Clause 5.2 “Principles” provides the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under s 501CA of the Act. The contents of that clause are referred to in their entirety for the full force and effect. However, several of them should be specifically referred to. It is relevantly provided that:
(a)non-citizens who engage or have engaged in criminal or other serious conduct should expect to forfeit the privilege of staying in Australia;
(b)the Australian community expects that the Australian government can and should cancel non-citizens’ visas if they engaged in conduct that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community; and
(c)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 revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient in some circumstances even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Clause 6 “Exercising discretion” provides that, informed by the principles in paragraph 5.2, account must be taken of the considerations identified in paragraphs 8 “Primary Considerations” and 9 “Other considerations” where relevant to the decision.
Clause 7 “Taking the relevant considerations into account” provides that, in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.[2]
[2] Direction 90 at 7.
Clause 8 “Primary considerations” mandates that in deciding whether to revoke the mandatory cancellation, the following are primary considerations:
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the best interests of minor children in Australia; and
(d)expectations of the Australian community.
Clause 9 “Other Considerations” mandates that in deciding whether to revoke the mandatory cancellation, the following are other considerations:
(e)international non-refoulement obligations;
(f)extent of impediments if removed;
(g)impact on victims;
(h)links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
ISSUES BEFORE THE TRIBUNAL
There is ample evidence to demonstrate that the applicant has made representations in accordance with s 501CA(4)(a) of the Act.
That leaves two issues for determination by the Tribunal:
(a)whether the applicant passes the character test; and
(b)if he does not, whether there is “another reason” why the decision to cancel the visa should be revoked.
THE CHARACTER TEST
Under s 501(6)(a) of the Act a person does not pass the character test if they have a substantial criminal record. A substantial criminal record is relevantly defined in s 501(7)(c) of the Act. It provides that a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
On 13 August 2020, the applicant was convicted in the Horsham Magistrates’ Court of intentionally causing injury and sentenced to a term of imprisonment of 20 months. By reason of this conviction the applicant does not pass the character test.[3]
[3] A transcript of the proceedings in the Horsham Magistrates’ Court on 13 August 2020 is document G4 of the G documents. It includes the presiding Magistrate’s sentencing remarks. They are referred to in their entirety. There was a non-parole period imposed of 14 months.
It should also be noted that lawyers previously acting for the applicant in a detailed written submission to the delegate dated 8 April 2022 conceded that he does not satisfy the character test.[4]
[4] This concession is made at paragraph 18(b) of that submission from his then lawyers "Sentry Law”. It is document G33 of the G documents.
BACKGROUND AND OFFENDING
The applicant is a citizen of New Zealand. He was born on 20 April 1991. He arrived in Australia on 19 January 2013. Following his arrival in Australia he moved to the Ararat area where he apparently had relatives who were able to offer him initial support and assist with finding employment. He took up employment in a local meatworks. Based upon the material before the Tribunal the applicant was, by all reports, a good employee.
His first conviction was in the Ararat Magistrates’ Court on 10 August 2015.[5] He was convicted of contravening a family violence intervention order, intentionally causing harm and fear and recklessly causing injury. The sentence imposed on that day was a fine in the aggregate of $1,500.
[5] Details of the applicant's convictions are contained in the Check Results Report from the Australian Criminal Intelligence Commission which is document 3 of the G documents.
The next conviction was also in the Ararat Magistrates’ Court on 2 May 2016. The applicant was convicted of causing criminal damage (intentional damage and destroy property), unlawful assault and contravening a family violence final intervention order. A sentence was imposed of an aggregate of two months’ imprisonment.
The applicant was convicted in the County Court of Victoria at Horsham on 14 June 2016 of one charge of common law assault, a second charge of aggravated burglary, and an uplifted summary offence of unlawful assault. He was sentenced to an aggregate term of imprisonment of six months and placed on a Community Corrections Order for two years upon his release from custody.
In the Magistrates’ Court at Horsham on 13 August 2020 the applicant was convicted of intentionally causing injury and sentenced to a term of 20 months imprisonment with a non-parole period of 14 months.
primary considerations
Protection of the Australian community: clause 8.1
Clause 8.1(1) of Direction 90 provides that when considering the protection of the Australian community, the Tribunal should acknowledge that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. It further provides that 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.
Clause 8.1(2) further states:
(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.
Nature and seriousness of the applicant’s conduct
Clause 8.1.1 of Direction 90 identifies a number of factors that a decision-maker must have regard to when considering the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. The range of factors enumerated in that Clause is not exclusive.
Clause 8.1.1(1)(a)(i) of Direction 90 provides that, without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes are viewed very seriously by the Australian Government and the Australian community.
Clause 8.1.1(1)(a)(ii) of Direction 90 also provides that, without limiting the range of conduct that may be considered very serious, crimes of a violent nature against women or children regardless of the sentence imposed are viewed very seriously by the Australian Government and the Australian community.
Clause 8.1.1(1)(a)(iii) of Direction 90 additionally provides that, without limiting the range of conduct that may be considered very serious, acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed, are viewed very seriously by the Australian Government and the Australian community.
There are other matters that the Tribunal as decision-maker must have regard to with respect to this consideration being the nature and seriousness of the conduct concerned. They are:
(a)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;[6] and
(b)the cumulative effect of repeated offending.[7]
[6] Clause 8.1.1 (1) (d) of Direction 90.
[7] Clause 8.1.1 (1) (e) of Direction 90.
At the outset it should be noted that amongst the materials before the Tribunal concerning this consideration there was a submission made by lawyers then acting on the applicant’s behalf dated 8 April 2022 concerning, amongst other things, the nature and seriousness of the applicant’s conduct.[8] In that submission at clause 24 it is stated that, “Our client accepts that his history of offending is extremely serious, as all nine of his offences involve acts of family violence and many include offences of a violent nature against women. Further, our client has been sentenced to 3 different terms of imprisonment in respect to his past offending.”
[8] The submission is document G33 of the G documents.
It is further submitted at clause 26 of that submission of 8 April 2022 as follows: “Put bluntly, our client’s past offending can be categorised as both shocking and extremely serious. Our client accepts that intimate partner violence, and particularly intimate partner violence including the infliction of actual physical violence, is abhorrent and antithetical to the principles and values of Australian society. That our client was adversely affected by alcohol at the time of his offending in no way excuses his behaviour; it is no excuse not all intoxicated persons commit criminal offences, let alone serious offences involving family violence.”
The Tribunal agrees with these submissions made by the applicant’s lawyer in terms of their categorisation of the seriousness of the applicant’s offending.
Further to the applicant’s own submissions, in considering this consideration being the nature and seriousness of the applicant’s criminal offending and other conduct to date the applicant’s criminal record outlined above speaks for itself. Not only has he committed crimes of violence, he has committed violent crimes against women and by reason of doing so (because they were committed against his wife and domestic partner at the time) they clearly constitute acts of family violence as contemplated by the relevant paragraph of Direction 90.
His most recent offending for which he was sentenced to 20 months imprisonment involved acts of extreme violence against a woman who was his wife. She suffered appalling injuries. They were acts, as the sentencing Magistrate noted, committed against someone he was supposed to love. The Tribunal views these acts as very serious.
As a starting point in determining whether the applicant’s offending and other behaviour was serious the Tribunal places considerable weight on the sentencing comments that are available to the Tribunal, of the judge and Magistrates concerned.
It is worthwhile quoting several passages from the sentencing remarks of the judicial officers concerned as they had the opportunity to hear submissions from both the prosecution and defence, not to mention the benefit of victim impact statements which are highly relevant to their determination of an appropriate sentence.
In the most recent case in the Magistrates’ Court at Horsham on 13 August 2020 the presiding Magistrate made the following comments:[9]
“I can take into account the excessive ferocity of the beating that you gave her. The only reason you stopped was because you thought she was dead or unconscious. This is as serious an example of intentionally cause injury in a family violence setting as one can imagine. She was asleep, she woke to a verbal, physical assault of I can’t even describe the most appalling kind. The victim impact statement of the mother was heartrending…..”
“An attack on a female partner in her home environment where she should have expected to feel safe is a very serious matter. It must be condemned by the courts. Denunciation of your conduct therefore plays a significant role in a sentencing role in your case.”
“I must take into account also the insidious nature of family violence that often happens behind closed doors…”
[9] The Transcript of Proceedings in the Horsham Magistrates' Court of 13 August 2020 was document G4 of the G documents.
The Tribunal considers that the presiding Magistrate was well-placed to make such an assessment. The comments cited reflect considerable concern on the part of the sentencing Magistrate with respect to the applicant’s offending. The Tribunal agrees. There is only one conclusion that the Tribunal can draw with respect to these offences committed on that night and that is that they are a very serious example of offending and family violence.
It is perhaps also appropriate to outline the facts of the applicant’s offending as recounted by the presiding Magistrate to give contextual relevance and background to the findings that were made.
The Magistrate recorded in the reasons as follows:
“On 18 January this year you and your wife went to a wedding in Ararat. You were drinking heavily and your wife was wanting to leave the reception, you didn’t want to go and so she left and went home to bed. She was at home asleep in bed and you came home under the influence of alcohol, intoxicated and you then shouted and swear. Then you began to repeatedly punch her to the head and body. She was bleeding heavily from the head. She begged you to stop. This is the person you’re supposed to love. She begged you to stop, she begged you to stop beating her but you refused as you were intoxicated. You kept punching her, she was bleeding. In effect she was choking on her own blood. She had to pretend to be dead before you stopped. Initially she thought it was 15 to 20 punches, she has since revised that down. Suffice to say I am satisfied you punched her repeatedly. You then called 000 and left but not as it turns out I’ve heard you abuse the mother when she came home. Two witnesses saw the aftermath, they saw your wife vomiting repeatedly. She was conveyed to hospital. You said your memory was poor because of alcohol. In hospital she had a fractured nose and bruising to the head and body.”

These sentencing remarks were put to the applicant when he was in the witness box for the present hearing and he agreed with them. He accepted that his violent offending had occurred as described in this passage that has been quoted. He did not dispute that his offending on that occasion was very serious. Lest it needs to be said the sentence of an aggregate term of imprisonment of 20 months amply demonstrates the seriousness of the applicant’s offending on that occasion.
In his evidence the applicant said his offending occurred whilst he was under the influence of alcohol as described. He also stated in evidence that he took responsibility for his actions. The sentencing Magistrate accepted that the applicant had some genuine remorse for his actions. Also, the Tribunal should record that the applicant did plead guilty to these charges and it appears he did so at a relatively early opportunity. It is a relevant consideration in the sentencing process.
With respect to the applicant’s conviction and sentence at the County Court of Victoria at Horsham on 14 June 2016, once again, the sentencing remarks of the trial judge are worthwhile reproducing as they were put to the applicant when he was in the witness box and he agreed that they were an accurate account of his offending.[10] When these sentencing remarks were put to the applicant in the witness box, he stated that there was nothing further he wished to say to the Tribunal concerning their contents. He did not contest whilst in the witness box that his offending was anything other than serious. Additionally, the applicant stated in the witness box that once again it was his heavy drinking that played the critical role in his offending. To his credit, he readily conceded that many times in the past he had blamed other people for his actions but has now come to the realisation that he needs to take responsibility for them himself. Once again, it should be noted that the applicant did plead guilty to these charges. Also, again it appears he pleaded guilty at an early opportunity which is as noted above a relevant factor in the sentencing process.
[10] The Reasons for Sentence of Judge Taft are document G40 of the G documents.
The trial judge observed in his reasons for sentence as follows:
“The circumstances of your offending can be summarised. At the time you offended you were 23 years old. You are now 25. As at January 2015, you had been in a relationship with “H” for about two years and had lived with her for about 12 months. “H” was 45 years old at the time of the offending.
On 3 January 2015, you verbally abused “H” and sent her abusive text messages. As a result, “H” ended the relationship and you returned your house key.
During the evening of 3 January 2015, you drank a large amount of alcohol at a pub in Ararat. While at the pub, you had an altercation with an acquaintance and you sustain some facial injuries.
At approximately 12:10 AM on 4 January 2015, you attended at the home of “H”, punched a glass panel, reached in, unlocked the door, and entered the main bedroom where “H” was sleeping. “H” awoke. You ripped the doona off her and punched her to the right-hand side of her head and yelled “Your face is going to end up like mine” and “Everything is your fault”. Your conduct in entering the house and assaulting “H” founds the charges of aggravated burglary and common law assault.
While you went to the bathroom, “H” ran out the front door. You chased after her and threw her to the ground and attempted to drag her back towards the house.
You walked back to “H’s” home and continued to yell and abuse her. “H” managed to text for help and, shortly afterwards, her son and a friend confronted you, telling you to leave. You challenged the son to a fight and grabbed him around the throat area, causing red marks to that region. That conduct founds the uplifted summary charge of unlawful assault.
Police arrived shortly afterwards and observed you sitting on the front steps of the house, significantly affected by alcohol and with some facial and hand injuries.
You were interviewed about 5 AM and admitted that you had drunk a significant quantity of heavy beer before you offended. You admitted to smashing a window and entering “H’s” home and to having verbally abused her. When police asked you why “H” ran away, you responded “Coz she’s sick of being abused…. But then, like, when I go out of control she’s-she’s scared of me”. The police asked you “What makes you go out of control, do you think?” You stated “Coz she makes me angry all the time”. Your latest statement, “Well she just tends to get smart all the time, like, for no reason”. At the end of the record of interview you said “I wish it never happened to be honest…. Like, I really wish that I could have controlled my behaviour a lot better”.
The applicant in the witness box did give evidence that the altercation at the pub took place between him and “H’s” son in law who happened to be there on that day. He believed that the altercation was most likely related to how he had treated “H”.
The offending that was recounted in the sentencing judge’s reasons in the County Court of Victoria at Horsham reflects the significant problems that consumption of alcohol poses for the applicant. It also highlights the dangerous combination of the applicant and alcohol and its propensity to lead the applicant to commit domestic violence offences when under the influence.
In addition to the term of imprisonment for six months the applicant was placed on a Community Corrections Order for a period of two years. The terms of the Community Corrections Order included that he be assessed and treated in respect of consumption of alcohol and undertake any other program, course or treatment that would reduce his risk of reoffending. Sadly, for both the subsequent victim of his offending and the applicant himself, these treatment programs were not successful. On that note, it should also be observed that the sentencing judge in the County Court of Victoria recorded that prior to being sentenced he had attended a Family Violence Court Intervention Program and attended 14 male behaviour change group sessions and 4 individual counselling sessions. He also self-referred to alcohol counselling at the Grampians Community Health Ararat and attended two sessions in March and April 2016. He had participated in the Alcoholics Anonymous Program at Loddon Prison. Also before the sentencing judge was a report from Forensicare prepared by a consultant psychiatrist dated 10 June 2016, which was in evidence before the Tribunal.[11] The consultant psychiatrist who was the author of that report reached a conclusion that the applicant’s prospects of rehabilitation were favourable given his participation in an anger management course, a men’s behaviour change program and drug and alcohol counselling. For his part, the trial judge stated that he was more guarded about the applicant’s future risk of violent and impulsive conduct when affected by alcohol.
[11] The psychiatric report of Dr Ranga is document SG1 of the SG documents.
Unfortunately, for both his victims and the applicant, the sentencing judge’s guarded view about the applicant’s future risk of violent and impulsive conduct when affected by alcohol was by reason of his subsequent actions in January 2020, proven to be wholly justified. It is of concern that notwithstanding all the steps that the applicant undertook to adjust and/or modify his behaviour and problems with alcohol, it was ultimately to no avail and he reoffended. More will be said about that later in these reasons. This does to a considerable degree amplify the seriousness of his offending on 18 January 2020 for which he was imprisoned for 20 months.
An accurate summary of the applicant’s offending for which he was sentenced to an aggregate of two months’ imprisonment at the Ararat Magistrates’ Court on 2 May 2016 for criminal damage (intent damage and destroy), unlawful assault and contravene a family violence final intervention order is contained in the Preliminary Brief- Statement Made By Informant from Victoria Police which was in evidence before the Tribunal.[12] It records as follows:
“The accused and the victim are boyfriend and girlfriend in this matter. They have been in a relationship for the past six months and have no children together.
On Saturday the 20^th of February 2016 the accused and the victim were at a friends house in Ararat drinking. The victim told the accused numerous times that she wanted to leave but the accused had her house keys so she couldn’t.
At approximately 3 AM the victim left without the accused and started walking home. The accused followed the victim telling her to stay and a verbal dispute occurred. The friends of the accused picked the victim and accused up in a vehicle and drove them to their house…
Once the victim got home, she got into bed on a mattress in the lounge room. The accused flipped the mattress over with the accused on it causing the victim to fall on the ground and graze her knee. The accused has started abusing the victim verbally about having to leave the party early and an argument has erupted. The victim was sitting on the couch when the accused has grabbed her and pushed her against the wall. The victim told the accused she was leaving him and the accused has pushed the victim against the wall a second time.
The victim walked towards the bedroom to call her mother for help but the accused grabbed her iPhone to prevent her from contacting anyone. The accused became apologetic but the victim told him she would no longer continue to deal with his abuse, this has caused the accused to throw the victim’s iPhone to the ground smashing it.
The accused disconnected the phone base and modem to further prevent the victim from contacting anyone. The victim was in the lounge room when the accused started to walk to the rear of the house, the victim has seen the opportunity to get help and has ran outside to her neighbours for help. The accused followed her for a short distance before leaving the address in anticipation of Police arrival.”
[12] Document G43 of the G documents at page 218. There was also in evidence a statement made by the victim to the police which is document 46 of the G documents.
Whilst no sentencing remarks, or reasons for sentence, of the presiding Magistrate were in evidence before the Tribunal the sentence imposed by that Magistrate must reflect the seriousness of the applicant’s offending as described in the Preliminary Brief. It should be recalled, as is obvious, that the imposition of a custodial sentence is the last resort in the sentencing hierarchy. Therefore, for this reason it is a reflection of the objective seriousness of the applicant’s offending in this instance.
The victim of the applicant’s offending on 20 February 2016 was his wife, although they were not married at that time. They were married on 1 March 2019. Lest it needs to be said he has been convicted of committing acts of family violence against her on two separate occasions.
A further observation should be made concerning the seriousness of the applicant’s offending which resulted in his conviction and imprisonment for a term of two months on 2 May 2016. That is the fact that the applicant, which he freely admitted in the witness box, was convicted of breaching the terms of an intervention order. There was no suggestion in his evidence before the Tribunal that he did not understand the terms of such order or not appreciate the consequences for breaching it. This was the second occasion on which he had been found to have contravened the terms of an intervention order made against him. Amongst other things, including the circumstances of the violent offending he engaged in against his domestic partner, it is further evidence of a propensity on the part of the applicant towards disobedience to the law. It is apparent that he has not learned from his experiences before the courts.
By way of completion concerning this appearance at the Magistrates’ Court it should also be recorded that the applicant did plead guilty. He appears to have done so at an early opportunity. It was also apparent that he had cooperated with the police when taken into custody and interviewed.
There are no reasons for sentence before the Tribunal concerning the applicant’s offending which resulted in his conviction and sentence in the Ararat Magistrates’ Court on 10 August 2015. As noted above, the applicant was convicted and fined an aggregate of $1,500 for contravening a family violence intervention order, inducing harm and fear and recklessly causing injury. He pleaded guilty to these charges at an early opportunity. It appears also that he was cooperative with police when arrested and interviewed. Once again, a Preliminary Brief from Victoria Police was in evidence before the Tribunal, and it is appropriate to reproduce passages from that brief.[13] The applicant did not dispute the contents of the document and the Tribunal is satisfied that it accurately records the circumstances surrounding the applicant’s offending. It states:
“The accused, Lee Te Huia has been in a relationship with the complainant… for approximately two and a half years.
In 2015, 4 intervention orders have been granted in Magistrates’ Courts in Victoria to protect the complainant and members of her family from family violence committed by the accused.
On 8 August 2015 the accused arrived home from Melbourne just after 7 PM and became involved in an argument with the complainant and the accused struck the complainant across the face with the back of his hand.
The complainant suffered a small cut to her lower lip and the lip became swollen. The complainant fled from her home in her car and the police were called.”
[13] The preliminary Brief is document G52 of the G documents at page 250.
The applicant did not dispute the facts as described in the Preliminary Brief. Additionally, the applicant’s offending on that day was briefly described by Judge Taft when sentencing the applicant for his other offending on 14 June 2016 in the County Court at Horsham.[14] The applicant agreed that it was an accurate summary of what occurred. He also stated that once again he was affected by alcohol at the time that he committed these offences. He explained, as was noted in the preliminary brief, that he had been to Melbourne for the weekend and returned intoxicated. He candidly admitted to the Tribunal, as he should have, that it was not the complainant’s fault. He stated that he had no phone at the time as he had smashed it when he was in Melbourne and that his partner started questioning him asking him why he hadn’t phoned her or contacted her. He freely admitted that his response was to resort to violence again. He also admitted that he was the subject of four intervention orders as described in the Preliminary Brief.
[14] Document G40 paragraph 12.
It should also be noted that the offending for which the applicant was convicted at the Ararat Magistrates’ Court in 2015, and the County Court of Victoria in 2016, were against the same person who was a former domestic partner with whom he had been in a relationship.
Once again, this offending objectively viewed can only be described as serious. It was yet again an act of violence committed against his domestic partner in a setting that was wholly unacceptable. There were four intervention orders that had been granted. In acting as he did, not only did he commit the offences but he violated specific orders of the court prohibiting such conduct. It was completely and utterly unacceptable.
The frequency of the applicant’s offending which the Tribunal as decisionmaker is required to have regard to is of concern.[15] In a comparatively short space of time the applicant has committed several crimes of a violent nature which were acts of family violence. It is of concern to the Tribunal that the applicant did not learn from his previous experiences in court, particulars of which have been outlined earlier in these reasons. It should also be observed for the record that the applicant commenced his offending a relatively short time after his arrival in Australia. He arrived in Australia on 19 January 2013 with his first conviction recorded on 10 August 2015.
[15] Direction 90 clause 8.1.1(1)(d).
The frequency of his offending is compounded by the fact that as noted earlier, he was subject to several intervention orders which are intended to provide an additional layer of protection to the affected family member. When an intervention order is made it contains a warning in clear and unequivocal language to the respondent. The warning is usually expressed in terms that inform the respondent that he is required to follow all the conditions contained in such order. Usually, a further warning is contained in the intervention order in bold that a failure to follow such conditions is a crime for which the respondent may be arrested and charged. There was no suggestion that the applicant was not familiar with the terms of the intervention orders imposed upon him. Despite these warnings he continued to offend. The Tribunal has no doubt as well that on each occasion when the applicant was before the court the presiding Magistrate and judge (as was the case in the County Court at Horsham on 14 June 2016) warned the applicant of the consequences of reoffending. In the face of these warnings the applicant continued to offend.
The Tribunal in considering the nature and seriousness of the applicant’s criminal offending or other conduct is also required to have regard to the cumulative effect of repeat offending.[16] The cumulative effect of the applicant’s offending has several dimensions. First and foremost, there is the impact on the applicant’s victims. There was evidence before the Tribunal of victim impact statements that were made by the applicant’s ex-wife and ex-partner that are of concern.
[16] Direction 90 clause 8.1.1(1)(e).
For instance, a victim impact statement was before the County Court judge at Horsham when the applicant was sentenced on 14 June 2016.[17] The victim stated, “I’m left a broken frightened victim of crime. I’ve had to give notice at work, a job I love all because I cannot live alone. I have to move back full-time in Ararat to live with family. How vulnerable and useless I now feel.” These are very disturbing words.
[17][17] An extract from a victim impact statement authored by "H" was included in the sentencing judge’s reasons at paragraph 10.
When the applicant was sentenced at the Horsham Magistrates Court on 13 August 2020 a victim impact statement was submitted to the presiding Magistrate. Its contents were not read out in open court at the request of the applicant’s ex-wife. However, the Magistrate described its contents as “extremely sad.” He also referred to the distressing nature of photographs tendered with that statement.
Additionally, there was a further victim impact statement tendered in evidence before the Magistrate at Horsham on 13 August 2020 from the applicant’s ex-wife’s mother. Some of its contents were referred to by the police prosecutor in his summary to the court. Amongst other things she stated, “Since (the offending) I cannot handle even having an argument or disagreement with anyone without suffering anxiety. I have never in my life had anxiety attacks before this night. If anyone raises their voice towards me or speaks with an aggressive tone my hands shake uncontrollably. They shake to the point I can’t grasp anything in my hands and I isolate myself until it stops” and “My life has changed in so many ways. I am angry, frustrated, saddened and devastated this even happened. I am also very angry that this night has caused me to suffer from nervousness and anxiety to an extreme I have never had before and to have no control over anxiety attacks and the fear that goes with it.”
Another dimension to the applicant’s offending that was evident to the Tribunal concerns the repeated application of police, courts and correctional resources caused by this offending. The applicant’s offending and propensity for acts of family violence have required the intervention of the police and courts frequently over several years. Then of course once he has been incarcerated (which has occurred on three separate occasions) the resources of the applicable correctional institutions have been applied. The effect, or cumulative effect, of this application of such resources should not be underestimated.

For the reasons articulated above the Tribunal concludes that the applicant’s offending is very serious. Above all else this is reflected in the fact that he has been sentenced to terms of imprisonment on three occasions. As noted earlier, incarceration as a sentencing option is the last resort. On each occasion after the first that he has been imprisoned it has been for an increased term which reflects the trend of increasing seriousness of his offending. This trend was reflected in the savage assault on his wife on 18 January 2020 which was described by the Magistrate to be as serious an example of intentionally causing injury in a family violence setting as one could imagine. The seriousness and effect of his continuing offending is also amplified by the fact that he did so in the face of family violence intervention orders which had been obtained against him.
When the Tribunal has regard to the matters that it must under this part of Primary Consideration 8.1 it finds that the nature and seriousness of his criminal offending and other conduct to date weighs very heavily against the revocation of the reviewable decision.
The risk to the Australian community should the applicant commit further offences or engage in other serious conduct
Clause 8.1.2 of the Direction 90 relevantly 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).
In undertaking the assessment required of this consideration the Tribunal must identify the nature of the harm should the applicant engage in further criminal conduct.
Were the applicant to reoffend the Tribunal is satisfied that the potential harm that would be caused would be very serious and likely to encompass significant physical and psychological harm to his victims, as has already been seen with respect to his prior offending. From his previous offending it is apparent that the applicant has a propensity to engage in acts of violence against his domestic partners when under the influence of alcohol. This has been a consistent and repeated pattern of behaviour. The Tribunal is satisfied that if such conduct and the harm that it causes were to be repeated by the applicant it would be very serious and therefore the risk of reoffending is plainly unacceptable.
It should also be recorded that in paragraph 28 of the submission by his then lawyers dated 8 April 2022 to the delegate in support of his request for revocation of the mandatory cancellation of the visa it is stated, “We submit that the nature of the harm that might manifest should our client reoffend is most rationally assessed by reference to the harm that has resulted from his past offending. In this regard, we accept that any further offending by our client may result in both serious physical, mental and emotional harm to a future intimate partner.” The Tribunal agrees with this statement.
It is also contended that the risk of the applicant committing any further criminal offences is low.
In undertaking the risk assessment that this consideration calls upon the Tribunal as decision-maker to do, the applicant emphasises the steps he has taken since his offending in January 2020 to rehabilitate himself so as to minimise the prospects of reoffending. There are several things that he points to.
Firstly, he says he has abstained from the consumption of alcohol since his offending on 18 January 2020.
Whilst on bail between January 2020 and his sentencing in August 2020 in the Magistrates’ Court he voluntarily enrolled himself with one-on-one counselling at the Grampians Community Health Alcohol and Drug program. His evidence was that these sessions have assisted him to accept that alcohol has been the contributing factor to his violent behaviour. They have also assisted him to understand what the misuse of alcohol does to him. A certificate from that organisation was in evidence before the Tribunal. It stated that the focus of the treatment that the applicant engaged in had been around relapse prevention, substance education and the value of leading a healthy lifestyle. It recommended that the applicant continue to engage in a course of treatment, namely counselling sessions on a fortnightly basis.
Similarly, whilst on bail prior to being sentenced in August 2020, he referred himself to additional counselling with the Men’s Behaviour Change program with Child and Family Services in Ballarat. He was assisted by a counsellor Mr Crellin and said he similarly found these sessions beneficial in terms of appreciating what has triggered his violent behaviour. A report from Crellin concerning the applicant was in evidence before the Tribunal.[18] Mr Crellin in that report stated amongst other things, with respect to the applicant, “He has provided evidence to me which supports his ability to now reflect on his choices and display an insight into aspects of the ramifications of his actions on himself and others in his life.”
[18] Document G25. It is dated 22 July 2020.
When in custody at the Loddon Prison he undertook similar programs with an organisation known as Caraniche. A letter dated 15 January 2021 from a psychologist from that organisation, Ms McSwain, was in evidence before the Tribunal.[19] She recorded that the applicant self-referred for individual counselling to address issues related to alcohol use and the way in which these impact on his life and behaviour. The report describes the applicant presenting as internally motivated to address his alcohol use and offending behaviour. She stated that this was evidenced by the applicant’s openness to discuss issues related to his alcohol intake, relationship difficulties and behavioural issues. She stated that the applicant expressed a desire to address issues related to communication and anger management. The report noted that the applicant’s current treatment continued to focus on learning relapse prevention strategies for his alcohol use and strategies to assist in improving communication, relationship difficulties, anger management and emotional regulation.
[19] The letter of 15 January 2021 from Ms McSwain is document G30 at page 165 of the G documents.
Since being incarcerated and subsequently whilst in immigration detention he has been an active participant in the Alcoholics Anonymous program which he said he has found beneficial.
The applicant also gave evidence that he has recommitted to his faith as a Jehovah’s Witness. He was raised in this faith and it is the faith of his parents. He stated that he now observes his religious beliefs and has done so to set matters straight and to express his sincere repentance for what he has done. He highlights his strong ties to this faith. He gave evidence that because of his actions his religion prevents his parents from speaking to him as he has committed a serious sin. He described it as a way that his faith adopts of helping a person to come to their senses. He said it has been extremely hard for him not being able to speak to his parents. The only way they have communicated is through the auspices of a third-party, usually his mother’s boss. He stated in evidence, and there was evidence by way of a statement made by his mother on 15 September 2022, that he had been excommunicated from the Jehovah’s Witness faith but is hopeful that if he is able to rehabilitate himself, he will be readmitted.[20]
[20] The applicant's mother's statement is dated 15 September 2022 and is attachment 11 to his Statement of Facts, Issues and Contentions.
The applicant has stated that if he is released into the Australian community, he intends to continue to participate in both men’s behaviour change programs and drug and alcohol rehabilitation programs with those organisations which he has previously obtained assistance from.
He also points to the fact that his plans for reintegration into the Australian community would include living initially with his aunt who lives in Ararat and taking up a standing offer of employment at a local abattoir as a slaughterman.[21] There was a letter of support from the HR Manager of Ararat Abattoirs Pty Ltd dated 19 November 2020.[22] That letter confirmed that the applicant had worked as a full-time slaughterman with the abattoirs. It described him as a conscientious, reliable worker and valued member of their team.
[21] His mother in a statement dated 5 April 2022 mentioned that she, her husband and the applicant's siblings had set aside money to support the applicant's return to the Australian community in the event that he is released. This statement is document G37 which has been considered by the Tribunal.
[22] Document G28.
Another ground relied on by the applicant in support of his contention that he is a low risk of reoffending is the further risk of cancellation and removal from Australia were he to do so. It is described, in the submissions of his former representative dated 8 April 2022, as the ultimate deterrent to any future criminal offending because it would lead to permanent separation from his children. He gave evidence of the importance of his relationship with his children to him about which more will be said later in these reasons.
In further support of his contention that there is a low risk of him reoffending, particularly by reason of the importance of his relationship with his children, the applicant tendered in evidence a number of statements or letters from various persons who are familiar with him. These statements attested to the qualities that the applicant possesses as a family man and father together with the connection he has to his children AB and BC.[23] They have been read and considered by the Tribunal. The contents need not be reproduced for the purposes of these reasons. Included in this material were statements from his wife. In one statement she stated that, “I really hope my vouch of my trust in the changes Lee has made and shown is enough to show what a kind-hearted, hard-working, compassionate, amazing father and husband Lee really is despite his mistake. The children and myself will be absolutely lost without him.”[24] The Tribunal observes that the applicant’s wife did not give evidence at the hearing. The statement made by her was received prior to her subsequently seeking an intervention order against the applicant on 11 February 2022.[25] Whilst the Tribunal is prepared to accept that the applicant possesses the qualities as a father referred to in that statement, it otherwise by reason of his wife not giving evidence must place more limited weight upon it.
[23] These statements were made by the following persons:
·Charlie Hawkins;
·Monique Stewart;
·Logan Antonio;
·Mary Te Whare;
·Tulloch Maxwell;
·Ashley Morris;
·Grayson Whareuni;
·Christine Te Huia (the applicant’s mother);
[24] This statement is document G15. This statement is undated. However, it was received by the delegate on 12 November 2020.
[25] A copy of this family violence final intervention order, as varied on 8 July 2022, was tendered in evidence by the applicant.
The Tribunal acknowledges that the applicant has remained abstinent from alcohol since the incident in January 2020 when he committed appalling acts of family violence against his wife. It is a factor that weighs in his favour. However, for a significant portion of the time since January 2020 the applicant has been either imprisoned or in immigration detention, which of course is a regulated and supervised environment in which there is limited free access to alcohol. It really remains to be seen whether he would be able to continue to maintain total abstinence in the event that he were released into the community, where alcohol is more freely available.
It is of concern that the applicant in 2016, prior to his convictions in the County Court at Horsham, had undertaken similar rehabilitation steps. It was observed by the sentencing judge that the applicant had abstained from alcohol since February 2016. The applicant gave evidence that he did abstain from drinking for some time until approximately October 2017 when, in his words, he slowly started drinking again. He readily conceded that he succumbed to temptation and started drinking again particularly when he was mixing with friends in the community who used alcohol. They would take him to events and social gatherings where alcohol was consumed. In his evidence he described them as “drinking associates”.
In evidence before the County Court judge on 14 June 2016 was a psychiatric report prepared by Dr Ranga, a Consultant Psychiatrist who had undertaken an assessment of the applicant.[26] Dr Ranga made several observations that are worthwhile repeating. She observed that there was, with respect to the applicant, a history of alcohol abuse that had become more severe and problematic over the last several years. She also observed a history of poor anger management and impulsivity, especially when under the effect of alcohol. It was also recorded in her report that the applicant had attended various counselling, support and services over the previous year. These included an anger management course, men’s behaviour change program, drug and alcohol counselling. It was additionally noted that the applicant had also attended community work, volunteer work and was motivated to attend all required conditions of the community order. She then expressed the opinion that in this context she considered his prospects of rehabilitation were favourable. In response to this opinion expressed by Dr Ranga the trial judge stated that for his part, he was more guarded about the applicant’s future risk of violent and impulsive conduct when affected by alcohol. As it turned out this reservation on the part of the trial judge about the applicant’s future risk of violent and impulsive conduct was well-founded as the events of January 18, 2020 were to reveal.
[26] The Psychiatric Report of Dr Ranga is dated 10 June 2016 and was document SG1 of the Supplementary G documents.
The sentencing judge in the County Court in June 2016 also recorded that the applicant had participated in the Alcoholics Anonymous Program at Loddon Prison as he has done since his most recent sentence. Additionally, the judge recorded to the applicant’s credit that he had enrolled in a Family Violence Court Intervention Program and attended 14 male behaviour change group sessions and four individual counselling sessions.[27] It was also noted by the judge that he had self-referred to alcohol counselling at the Grampians Community Health Ararat and attended two sessions in March and April 2016. The judge also expressed the opinion that it was abundantly clear that the applicant needed to develop insight into his behaviour with women and learn to relate in a non-violent manner. As is quite apparent from his subsequent offending on 18 January 2020 the applicant failed to develop an appropriate level of insight into his behaviour with women, nor did he learn to relate to them in a non-violent manner which is highly regrettable.
[27] At page 335 of the supplementary G documents there was a letter from Fraser Mackay, a counsellor from the Child and Family Services Ballarat, confirming the applicant's attendance at these sessions. It stated that the applicant actively participated in the sessions and gave details of the topics covered in them which included Communication Parenting/Respectful Relationships and Types of Violence, amongst others. It observed, amongst other things, "The program counsellors invite men to reflect on their behaviour and learn ways to relate non-violently." It also stated, "the process of behaviour change is a long one, and participation in our program is in no way predictive of positive change. Whilst there is evidence that men can and do modify their behaviour, research over the longer term demonstrates that it is exceedingly difficult to predict which men will sustain positive change or for how long. But most clients can benefit from extended periods in MBC programs." The author's observation that it is difficult to predict whether a person will change positively when participating in such programs has considerable relevance to this application and the concerns that one must have about the applicant's long-term prospects of genuinely modifying his behaviour towards women and family members, particularly when affected by alcohol.
There was also in evidence a file note made by a Community Corrections Officer on 5 June 2018 recording the applicant’s attendance at an appointment at the Ararat Reporting Centre as directed.[28] It recorded that the applicant had reflected on changes to his behaviour since undertaking the Men’s Behaviour Change program as a condition of his community corrections order. Also recorded was the observation that the applicant expressed the changes he had made in his life in relation to his relationship with his partner as well as recognising the negative effects of his anger on both his partner and his children. It also observed that the applicant reflected on the impact of alcohol on his behaviour and the consequences of his behaviour.
[28] Document SG3 page 583 of the SG documents.
The Tribunal also notes in the material that was before it, particularly from Corrections Victoria, that there have been no reports of any issues arising either whilst the applicant has been in prison or in immigration detention. By all reports it appears he was a model prisoner, and this must to some extent weigh in his favour.
Given the applicant’s history the Tribunal shares the view of the sentencing judge at the County Court at Horsham in June 2016 that one must be more guarded about the applicant’s future risk of violent and impulsive conduct when affected by alcohol. As previously observed these reservations by the trial judge turned out to be well-founded.
The applicant undertook similar steps towards rehabilitation prior to his appearance at the County Court at Horsham in June 2016. Ultimately, and regrettably, those steps towards rehabilitation were unsuccessful. In particular he relapsed into the consumption of alcohol. All the programs he had undertaken ultimately amounted to very little. The Tribunal considers that the protective value of the courses and programs that the applicant has engaged in since his 2020 offending, which have been outlined earlier, to the extent to which they might meaningfully reduce his risk of recidivism together with his expressions of developed insight and remorse, must to some considerable extent be diminished by reason of the fact that they did not prevent his violent offending previously. Clearly, they did not have a lasting impact on the applicant. The consequences which ensued on 18 January 2020 were appalling. They led to his most recent term of imprisonment.

Whilst the Tribunal acknowledges that the applicant has abstained from the consumption of alcohol since January 2020, for which he is to be commended, he has not been tested for a particularly long time in the general community. It is also acknowledged that he was in the community on bail after the events of 18 January 2020 and prior to his sentence in the Magistrates’ Court at Ararat in August of that year.
However, one can understand that having the very serious charges that he faced hanging over his head would have provided a powerful incentive to maintain abstinence from alcohol, if for no other reason than to rely on such a fact was an important part of his plea at the subsequent sentencing hearing.
The true test of abstinence will almost certainly arise if the applicant is released into the general community where alcohol is widely available. There is also the further risk of the applicant associating with friends and acquaintances, as he has done in the past; in particular rekindling associations with his “drinking associates” and succumbing to temptation.
The Tribunal acknowledges that the applicant’s renewed commitment to his faith as a member of Jehovah’s Witness is a positive factor that will assist him in his endeavours to avoid the risk of future offending. He did emphasise this in the course of his evidence from the witness box before the Tribunal. Whilst he must be given credit for this renewal of his spiritual journey his connection with that faith did not ultimately deter him from offending in the past. Once again, the ever present risk that he may relapse into consuming alcohol as he has done in the past, means that the risk of future offending on his part is distinct and real.
There is significant force in the applicant’s contention made in both his Statement of Facts, Issues and Contentions and from the witness box, that he is aware that future offending would almost certainly result in him being removed from Australia and permanently separated from his children and as such would operate as the “ultimate deterrent”. It is accepted by the Tribunal that this factor would certainly impact on the risk of future offending. However, such a potential risk did not appear to deter the applicant from offending certainly, on the most recent occasion in January 2020. It is acknowledged that his offending has usually been whilst under the influence of alcohol and as has been explored throughout these reasons it is usually the catalyst for such offending. Even if this powerful factor is to prevail to adopt the language used in a report referred to earlier in these reasons it cannot necessarily be predictive of a positive change on the applicant’s part.
By reason of the above considerations the Tribunal concludes that there is a continuing risk to the Australian community that the applicant will engage in further offences or engage in other serious conduct in the future. The risk of such offending or other serious conduct occurring and the harm that would be caused, if it were to be repeated, is in the view of the Tribunal so serious that any risk it may be repeated is unacceptable.
Therefore, the Tribunal considers that this primary consideration weighs very heavily against revocation of the mandatory cancellation of the visa.
Family violence committed by the non-citizen: cl 8.2 Paragraph 8.2 “Family violence committed by the noncitizen” provides as follows:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the noncitizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
(a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3) In considering the seriousness of 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
(c) Whether the non-citizen has reoffended 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 noncitizen engage in further acts of family violence.
The applicant has been convicted of multiple counts of offending that falls within the definition of “family violence” contained in paragraph 4 of Direction 90. Family violence is defined in that paragraph as meaning violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful. Examples of behaviour that may constitute family violence include an assault and intentionally damaging or destroying property. Considerable details of the applicant’s offending have been outlined in the section of these reasons addressing the nature and seriousness of his conduct. He has been convicted of several offences involving family violence against his wife and then domestic partner.[29] Those details are referred to and repeated.
[29] Direction 90 clause 8.2(2).
There have also been several family violence intervention orders made against the applicant over some years. He has been convicted twice of breaching family violence intervention orders. Family violence intervention orders are imposed to provide security to affected family members. In this case it was the applicant’s then domestic partner, subsequently his wife and children. In deciding to grant a family violence intervention order a Magistrate must be satisfied that the respondent poses a threat to the affected family member or members. In this instance the applicant freely admitted in the witness box when he was giving his evidence that not only were several intervention orders granted but that he had breached them. In addition to the convictions for breaching intervention orders which have been outlined earlier in these reasons the applicant acknowledged that an entry contained in the Victoria Police “LEAP” database recorded that he had sent 10 text messages of an abusive and demeaning nature, on 18 October 2015, in breach of an intervention order that had been served on him.[30]
[30] The entry in the LEAP database formed part of document SG4 of the SG documents at page 742. The contents of the entry in the database were put to the applicant when he was in the witness box and he agreed that it was correct.
Reference again should be made to the submission made by the applicant’s then lawyers on 8 April 2022 to the delegate of the respondent with respect to this primary consideration.[31] At paragraph 33 of that submission, it is accepted that this primary consideration weighs against revocation. It is also acknowledged and contended that the applicant has fully accepted responsibility for his conduct and acknowledged the impact that his conduct has had on his former intimate partners, and indirectly his children. It proceeds to highlight the steps towards rehabilitation that the applicant has taken to avoid further offending. In the circumstances it is contended that this consideration does not individually, or in combination with any other number of factors, weigh determinatively against revocation.
[31] Document G33 of the G documents.
The Tribunal notes that the applicant commenced committing family violence against his then domestic partner relatively soon after his arrival in Australia in 2013. He has engaged in a frequent and repeated pattern of family violence which has been subject to a trend of increasing seriousness. That increasing seriousness included the horrendous injuries that he caused his wife as a result of his most recent offending on 18 January 2020 when he repeatedly punched her. On each occasion that he has appeared in court the seriousness of the applicant’s offending has increased from the previous occasion. The details of these offences have been outlined earlier. It is of concern that the applicant did not take the opportunity to rehabilitate himself after his earlier encounters with courts.
The cumulative effect of the applicant’s offending being repeated acts of family violence which the Tribunal must consider have been outlined in paragraphs 60 to 64 above. They need not be repeated. Suffice to say the cumulative effect of the applicant’s offending has been significant on all the affected parties.
Paragraph 8.2(3)(c) of Direction 90 requires the Tribunal to consider rehabilitation achieved at the time of decision since the person’s last known act of family violence. Considerable detail concerning the applicant’s steps towards rehabilitation have been outlined in paragraphs 72 to 92 above. They are referred to and repeated. The Tribunal acknowledges that the applicant has abstained from alcohol since his offending in January 2020. It is also acknowledged that he has undertaken a variety of courses and programs directed towards gaining insight into his offending and in an endeavour to ensure that he does not offend again. He is to be commended for these steps. However, it does seem to the Tribunal that a significant factor in his offending has been alcohol consumption. If the applicant were to relapse it seems highly likely that there would be a distinct and real possibility that he would reoffend. This was evident from the fact that he reoffended after receiving a six-month term of imprisonment in the County Court at Horsham on 14 June 2016 after having taken similar steps towards rehabilitation. It was particularly disappointing that he not only relapsed into consumption of alcohol but that he also reoffended in the horrendous way that he did.
In the witness box as well as in written submissions and statements made on his behalf the applicant accepted responsibility for his family violence related conduct. The Tribunal found this evidence to be genuine and accepts the statements made by him to this effect. He did not try to detract from or otherwise downplay the seriousness of his offending and conduct. This is a relevant factor by virtue of clause 8.2(3)(c)(i) of the Direction.
Similarly, the Tribunal accepts that the applicant fully understands the impact of his behaviour on the victims of his offending and those that witnessed it, some details of which have been outlined earlier as a result of the contents of victim impact statements being read to the sentencing courts. Once again, the Tribunal accepts statements made to this effect by the applicant from the witness box, written submissions and statements that he lodged in support of the application to revoke the mandatory cancellation of the visa.
Paragraph 8.2(3)(d) of Direction 90 states that the Tribunal must consider whether the applicant has reoffended 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. It is of considerable concern to the Tribunal that it is evident that several warnings were given to the applicant in no uncertain terms about the consequences of committing further acts of family violence, yet he proceeded to reoffend.
When the applicant was sentenced by Judge Taft in the County Court at Horsham on 14 June 2016, he was given a most stern warning (admittedly without a warning about the consequences of not heeding such warning) about future offending. It is worthwhile repeating the actual words used by the sentencing judge. The judge stated, “You are a relatively young man, you are strong and very fit. It is cowardly for a man like you to assault a woman. Do not come back before a court again having hit a woman, do you understand that?”. The applicant replied “Yes, your honour.” Despite the most direct of warnings that was given to him by the sentencing judge on that day the applicant did not heed it and committed horrendous offences on 18 January 2020. It appears he did not understand or did not take on board the very clear warning given to him. It is most regrettable.
With respect to these comments made by Judge Taft at the County Court at Horsham 14 June 2016 when the applicant was in the witness box at the hearing of this application the Tribunal put these passages from the Reasons for Sentence to him. He was asked whether those comments were made to him and he agreed they were. When asked why he did not heed them he essentially put it down to his excess consumption of alcohol on the night that he committed his most recent offending in January 2020. He readily agreed that the comments by the sentencing judge were a warning that he just did not ultimately heed. This is most unfortunate.
As also observed earlier the applicant was the subject of several family violence intervention orders. A family violence intervention order is framed in plain and simple language. Every order issued by a Magistrates’ Court in Victoria contains the following warning, “If you do not obey all of these conditions below it is a crime and you may be arrested and charged.” Amongst other things, a family violence intervention order, as in this case contains the following notation, “The Court orders that the respondent must not: 1. Commit family violence against the protected persons.”[32]
[32] Several family violence intervention orders that had been made against the applicant were in evidence before the Tribunal. An example was document G26 of the G documents.
Whilst the sentencing remarks of the applicant’s appearances at the Ararat Magistrates’ Court on 10 August 2015 and 2 May 2016 were not in evidence before the Tribunal, it is of concern to the Tribunal that the applicant continued to offend after these appearances in court and that there was a trend of increasing seriousness following such appearances that lead to increased terms of imprisonment on each occasion. It appears that he simply did not heed the warnings that were given to him and learn from the experience. It does not reflect well upon him.
Therefore, by reason of the foregoing matters and taking into account what the Tribunal is required to do when applying this primary consideration concerning family violence, it finds that such primary consideration weighs very heavily against revocation of the mandatory cancellation of the visa.
Best interests of minor children in Australia affected by the decision: clause 8.3 of Direction 90
Paragraph 8.3 (1) of Direction 90 provides that decision-makers must make a determination about whether non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
Paragraph 8.3 (2) of Direction 90 specifies that this consideration applies only if the child is, or would be, under 18 years old at the time when the decision to not revoke the mandatory cancellation of a visa is expected to be made.
Under paragraph 8.3(3) of Direction 90, if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of Direction 90 prescribes a range of factors that must be considered by a decisionmaker in evaluating the best interests of minor children.
There are two minor children who are affected. There is AB born 2013 who is the son of the applicant’s wife from a previous relationship. It will be 10 years before AB turns 18. The applicant has a biological daughter BC. She was born in 2017. It will be 13 years before she turns 18.
The evidence before the Tribunal is that the applicant has played the role of a father with respect to AB from when he was approximately two years of age. Both the applicant and a statement from AB’s mother indicate that he refers to the applicant as “dad”. The applicant gave evidence that he has for all intents and purposes treated AB as his own son for the duration of the time that he was in a relationship with his wife. That period was from between 2015 and January 2020 when the applicant committed his most recent offences. It appears that AB has never known his biological father. The applicant is the only father he has ever known.
The Tribunal accepts the evidence that was tendered on behalf of the applicant that he not only was a constant presence in AB ’s life but also provided good support financially for the family and household of which AB was a part. The financial support provided by the applicant continued until such times as he was imprisoned when he was unable to work. He has, when not imprisoned, earned a reasonable income working in the meat industry as noted earlier. This enabled him to be a good provider. The applicant also undertook additional parental responsibilities and stepped into the shoes of the role of father for AB. In a statement lodged with the Tribunal his wife described him as “a devoted family man”. The applicant did contend in his Personal Circumstances Form, lodged with the delegate of the respondent, that AB has, since the applicant was imprisoned and been in immigration detention, struggled with anxiety because of his father’s absence. The Tribunal acknowledges this fact.
Similarly to AB, the applicant fulfilled an extremely strong father relationship with BC prior to the events of 18 January 2020 having helped raise her since her birth.
Following the events of 18 January 2020, the applicant and his wife separated. Notwithstanding the separation, the Tribunal is satisfied on the material before it that the applicant maintained contact with AB and BC by phone and “Zoom” until January 2022. In January 2022 the applicant’s wife obtained a family violence intervention order which included a term prohibiting the applicant from contacting or communicating her and the children.[33] He has had no contact with them since. There was no evidence before the Tribunal explaining why his wife took the step she did to obtain this order preventing him from contacting his children. However, the application was made by the applicant’s wife rather than the police as had been the case previously. The grounds for the application were, “The respondent is due to be released from custody in the near future”.[34] These grounds would indicate, on balance, that the applicant’s wife still harbours some fear or concerns about the applicant being released into the community. It also probably indicates that she does not wish the applicant, certainly at the moment, to be a part of her children’s lives. Presumably, a Magistrate was sufficiently satisfied of these concerns to make the intervention order notwithstanding that its terms would deny the applicant contact with his children. The applicant gave evidence when in the witness box that his wife has apparently entered into a new relationship. The last time that he spoke to her was in January of this year. The ending of the relationship with the applicant by his wife and her entry into a new relationship was, when he was in the witness box at the hearing of this application, accepted by the applicant. The applicant’s wife did not give oral evidence at the hearing of this application. There were statements from her in evidence that were made some time ago and did not address these issues. The applicant explained to the Tribunal that it is his intention to seek a variation of this family violence intervention order so at the very least it would enable him to resume contact with his children.[35]
[33] A copy of the family violence intervention order is document G38 of the G documents. The order is expressed to expire at midnight 3 August 2023 unless otherwise extended or varied prior to that time.
[34] A copy of the application is contained in the supplementary G documents at page 438. It forms part of supplementary document SG2.
[35] There is in the supplementary G documents at SG2, page 435 an application dated 11 March 2022 made by the applicant to vary the family violence intervention order in the Magistrates’ Court at Ararat obtained by the applicant's wife. The variation sought is to permit the applicant to continue to speak with his children. It appears that this application is still pending.

Notwithstanding the significant period of absence of physical contact between the applicant and AB and BC the Tribunal finds that the applicant certainly has an existing relationship with them as he has described it. Were such relationship to be resumed despite the applicant’s unfortunate history of family violence directed towards his wife he could play a positive parental role with both in the future. This is of course all subject to access being restored.
Should the applicant returned to New Zealand there seems no reason why he could not continue his relationship with AB and BC by continuing to use the telephone or Zoom. However, it is readily acknowledged that this is no substitute for a physical in-person relationship.
There was no evidence of any known views of either AB and BC concerning the matters that were before the Tribunal.
There is limited evidence before the Tribunal of the impact of the applicant’s prior conduct on the children. In a statement lodged with the Tribunal by his wife she said, “Our children have been heavily impacted by what has happened. They have gone through 8 months of sadness and uncertainty with their dad having to live elsewhere, and now they are going through the heartbreak of not being able to see their dad at all, and they are struggling.” There is no evidence explaining such things as the psychological or mental impact of the applicant’s offending on his children. Further, there is no evidence before the Tribunal as to whether they saw the after-effects of the applicant’s most recent offending where their mother suffered very serious injuries.
Certainly, by reason of the applicant’s relatively lengthy incarceration there must have been a financial impact on the children because he was not able to earn a living and make a contribution to the household as he had done in the past. The Tribunal infers that the children’s mother has been a full-time parent and therefore, not having a bread winner able to make a contribution would have been a significant detrimental impact on the household. The Tribunal should note, as observed earlier, that the applicant’s wife has re-partnered. There is no evidence before the Tribunal to indicate whether his wife’s new partner is making any contribution to the household in which the children reside.
As articulated earlier, the Tribunal has the evidence before it that the applicant’s children have been exposed to, or are at least at some risk of exposure to family violence perpetrated by the applicant Any likely future conduct of the type that the applicant has engaged in over some years (which the Tribunal has found he is at a measurable risk of doing) would, on balance, have a significant adverse impact on the children if they witnessed that conduct or its aftermath, and in the event that it led to the applicant’s further incarceration and absence from their lives.
Further, other than what was observed above, there is no other evidence that the children have suffered or experienced any physical or emotional trauma arising from the applicant’s conduct.
Overall, the Tribunal finds that the best interests of the minor children in Australia affected by the decision, namely AB and BC weigh in favour of revocation. However, the weight that the Tribunal attaches to this primary consideration must be somewhat limited. This is for several reasons including the limited contact that the applicant has had with his children since his offending on 18 January 2020, the effects of the most recent family violence intervention order obtained by his wife which prohibits any contact for a prolonged period and that he has had no contact since such order was obtained in January of this year. The weight that the Tribunal attaches to this primary consideration is also limited to an extent taking into account the negative impacts upon the children arising from the applicant’s conduct to date (most notably his absence during his incarceration) and the negative impacts that would arise from a future repeat of this conduct, which the Tribunal has found is at some risk of occurring.
Expectations of the Australian community: clause 8.4 of Direction 90
Clause 8.4 of Direction 90 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…
b)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;
Reference should be made to the majority decision in FYBR v Minister for Home Affairs.[36] Although it related to a previous Direction 65, the applicable consideration of Direction 90 is expressed in similar terms. The majority held that this consideration should be understood as expressing a deemed community expectation. This ascribes to the community an expectation aligning with that of the executive government which would generally weigh in favour of non-revocation. It is not however necessarily an inflexible conclusion.
[36] [2019] FCAFC 185.
Under paragraph 8.4(3) of Direction 90 the expectations of the Australian community apply regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community.
The applicant accepts that the decision-maker is required to approach the task of applying this primary consideration as endorsed in FYBR. He agrees that this primary consideration in Direction 90 deems that the Australian community would expect the applicant to forego the privilege of residing in Australia, but that it is for the decision-maker, in accordance with the principles prescribed by paragraph 5.2 of Direction 90, to determine how much weight should be given to that expectation.[37]
[37] Paragraph 53 of the applicant's submission dated 8 April 2022 is referred to.
The applicant has pointed to several matters that he contends are relevant to determining the degree to which the expectations of the Australian community weigh against revocation. They are:
(a)He has contributed to the Australian community since migrating from New Zealand;
(b)He has two children in Australia who are both Australian citizens; and
(c)He has taken steps to address the underlying causes of his family violence related offending.[38]
[38] Details of those steps have been articulated earlier in these reasons. In paragraph 54 of his submission dated 8 April 2022 a fourth ground was relied upon that the Tribunal considers was obviously a typographical error. It stated, "the client faces a real risk of harm on any return to the Philippines." No submission of facing any risk of harm was advanced at the hearing.
Notwithstanding the matters relied upon by the applicant, the Tribunal has reached a conclusion, given all of the evidence that has been adduced before it, that this primary consideration weighs against revocation of the mandatory cancellation of the visa. It does so firstly, because of the language used in clause 8.4(1) of Direction 90. The applicant has engaged in serious conduct in breach of the expectation and there is an unacceptable risk that he may do so in the future. He also committed acts of family violence and crimes against women which offending is captured by clause 8.4(2). This clause provides that non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the offences is such that the Australian community would expect that the applicant should not continue to hold a visa.
The Tribunal is also mindful of the “Principles” contained in clause 5.2(2), (3) and (5) of Direction 90. It is an example of where the applicant’s conduct, or the harm that would be caused if the conduct were to be repeated, namely serious acts of family violence, are so serious that even strong countervailing considerations are insufficient to justify revoking the mandatory cancellation of the visa. Put simply, the applicant should not be permitted to remain in Australia due to his repeated offending, the nature of the offending and the continuing risk of further offending and harm to individuals and the community, bearing in mind that such offending, (or potential offending) as noted involves serious acts of family violence. Such acts it should be repeated were committed against women.
The Tribunal also observes that the applicant’s offending occurred relatively soon (approximately two years) after his arrival in Australia. Under clause 5.2 “Principles” of Direction 90 Australia has a low tolerance of any criminal or other serious conduct by noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. It should also be observed that for a significant time span whilst present in Australia the applicant has been in custody or detention. This does to some extent negative the contention made on his behalf concerning the contribution the applicant has made to the Australian community which is noted above.
By reason of the analysis undertaken with respect to this primary consideration and other reasons set out above the Tribunal must reject the applicant’s submission that this primary consideration does not weigh substantially against revocation. On the contrary it finds that this primary consideration must weigh heavily against revocation of the decision to cancel the visa.
Other considerations
International non-refoulement obligations: clause 9.1 of Direction 90
The applicant did not advance any argument either in written submissions or at the hearing of the application, that Australia owed him any international non-refoulement obligations.[39]
[39] See also paragraph 57 of the applicant's submission dated 8 April 2022.
Accordingly, the Tribunal finds that no international non-refoulement obligations are owed to the applicant.
Extent of impediments if removed: clause 9.2 of Direction 90
As a guide for exercising the discretion, clause 9.2 of Direction 90 directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The applicant is presently 31 years of age. He is apparently in good health. He did not in any material before the Tribunal submit that he suffered any physical or mental health conditions.
There are no substantial language or cultural barriers were he to return to New Zealand.
The applicant’s parents and five siblings still reside in New Zealand. He will therefore have substantial family support open to him should he return. In his Personal Circumstances Form submitted to the delegate of the respondent the applicant expressed the belief that he would have no job to return to. The applicant gave evidence both from the witness box and in written submissions made to the Tribunal that he had several jobs working in meatworks in New Zealand prior to his decision to move to Australia in January 2013. There was evidence before the Tribunal as noted earlier, that he has been a good employee in that industry. It appears that there would be no reason why he would not be able to find employment again in that industry were he to return. He concedes that he has lived in New Zealand as an adult, has obtained and maintained employment in New Zealand and would have immediate family to assist him.[40]
[40] Paragraph 59 of his submission dated 8 April 2022 was referred to.
The main ground relied upon by the applicant to contend that this consideration weighs somewhat in favour of revocation arises due to the separation from his children. He contends that he would experience significant and long-term emotional and psychological distress resulting from his permanent separation from AB and BC. It should be observed for the sake of completeness that no expert evidence was adduced on behalf of the applicant such as from a psychologist expressing an opinion as to what long-term emotional and psychological distress may be caused to the applicant resulting from permanent separation from his children.
The separation from his children will unquestionably be difficult for the applicant. He has as noted earlier, had limited contact with them since his offending on 18 January 2020. There has been no contact since January of this year as a result of their mother obtaining a family violence intervention order against the applicant. The applicant would need to obtain a variation of this order permitting him to have some contact with them if a connection is to be restored. The Tribunal can only speculate as to whether such a variation of the order would be granted. Assuming it is, any contact is likely to be on very strict terms. Were the applicant to return to New Zealand, assuming a variation was granted, presumably contact could be maintained by phone or the Internet as occurred previously.
When the Tribunal takes into account the matters that it is required to consider in applying this other consideration it cannot accept the applicant’s contention that it weighs somewhat in favour of revocation. Properly applied to the circumstances that the applicant will find himself in should he be returned to New Zealand, those matters do not reveal any real impediments to him returning. However, given that it may take some time for the applicant to readjust to life in New Zealand given the time that he has spent in Australia the Tribunal places very slight weight upon this consideration.
Impact on victims- clause 9.3 of direction 90
There was no evidence before the Tribunal to enable it to consider the impact of a s 501CA decision on the victims of the applicant’s offending and the family members of the victims.
The respondent identifies two factors that are nonetheless relevant to this other consideration. It refers to and repeats the evidence before the Tribunal derived from victim impact statements that were in evidence before the County Court of Victoria at Horsham on 14 June 2016 and the Magistrates Court’ at Horsham on 13 August 2020. Details of those victim impact statements were identified earlier in these reasons. There is no doubt that having had the benefit of considering those passages from the victim impact statement as referred to by the sentencing judge and magistrate that were the applicant to be released into the community it would create for them an apprehension of some fear. This cannot be discounted.
Another matter that is relied upon by the respondent with which the Tribunal also agrees is the fact that there is in place a current family violence intervention order that has been obtained by the applicant’s wife against him. The applicant has demonstrated a propensity in the past to breach family violence intervention orders with significant consequences. His wife has obtained an order which prevents him having any contact with her or their children. It is a significant remedy that has been imposed by the court and the potential impact on his wife and children is something that the Tribunal can only speculate about but nonetheless views with some concern.
By way of completeness the Tribunal should note that there was no evidence before it that suggested the victims of the applicant’s offending were aware of the migration implications for him by reason of this decision.
In the circumstances the Tribunal will not place any weight on this other consideration.
Links to the Australian community: clause 9.4 of Direction 90
Strength, nature and duration of ties to Australia: Clause 9.4.1 of Direction 90
Under clause 9.4.1(1) of Direction 90 the Tribunal as decision-maker must consider any impact of the decision on the applicant’s immediate family members in Australia.
Under clause 9.4.1(2) of Direction 90, the Tribunal, where consideration is being given to whether to revoke the mandatory cancellation of the applicant’s visa, must also consider the strength, nature and duration of any other ties that the applicant has to the Australian community. In doing so it must have regard to:
(a)how long the applicant has resided in Australia, noting that:
(i)less weight should be given where the applicant began offending soon after arriving in Australia; and
(ii)more weight should be given to the time the applicant has spent contributing positively to the Australian community,
(b)the strength, duration and nature of any family or social links with Australian citizens or permanent residents.
The applicant has resided in Australia since January 2013. In addition to his wife and children about which more will be said later the applicant does have several established links particularly to the community and Ararat. His aunty lives there and there are several acquaintances with whom he has formed close bonds and friendships. These bonds and friendships are evident from the statements that were lodged with the Tribunal by the applicant in support of him. He also, as noted earlier, has been employed in the meat industry in Ararat and is a valued employee. It is evident that he has forged significant contacts in that industry by reason of that employment. However, the weight that might be attributed to statements made in support of him must be limited because none of those people were called to give evidence at the hearing of the application. Further, the statements themselves were not really explored in any shape or form during the hearing either.
He commenced offending approximately two years after his arrival. He has, during his time present in Australia, had three separate terms of imprisonment imposed upon him.
The Tribunal considers that in accordance with clause 9.4.1(2)(a) i of Direction 90 less weight should be given to this consideration because the applicant began offending relatively soon after his arrival in Australia.
The key factor with respect to this other consideration is the impact of the decision on the applicant’s immediate family members in Australia where those family members are Australian citizens. In this case primarily it is his two children AB and BC. The Tribunal has in its analysis of the primary consideration of “Best interests of minor children in Australia affected by the decision” articulated the impact of non-revocation of the cancellation of the visa on the applicant’s children. Although they are estranged and have had no contact since January of this year some consideration must be given to the position of his wife. They still remain married and fall within the ambit of this consideration.
Notwithstanding the acts of violence that the applicant perpetrated on his wife who is the mother of the children, the Tribunal accepts that when the applicant was not in custody, he made a significant contribution to the family unit. This contribution was both financial due to the fact that he held regular and stable employment but also as (when he was not drinking) a devoted family man. It is apparent that the applicant’s wife has now re-partnered. The Tribunal was not informed as to what financial arrangements now exist with respect to the children other than that the applicant by reason of his custody and subsequent immigration detention has not made a financial contribution for some time. He also has not been present in the children’s lives since January of this year when contact was prohibited as a result of a further family violence intervention order being obtained by his wife. Since January 18, 2020 he had limited contact by way of phone and Zoom.

Given the impact on his children as described the Tribunal considers that limited weight must be placed on this consideration in favour of revocation of the mandatory cancellation of the visa. It accepts the respondent’s contention that this consideration cannot outweigh the primary considerations referred to above which weigh heavily in favour of non-revocation, given the extent and seriousness of the applicant’s criminal history which also involves family violence and took place over a comparatively short time span.
Impact on Australian business interests: Clause 9.4.2 of Direction 90.
There was no evidence before the Tribunal addressing this consideration. Accordingly, the Tribunal considers that it weighs neutrally.
Conclusion
For the reasons articulated above the Tribunal has concluded that Primary Consideration 8.1, Protection of the Australian community, weighs very heavily against revocation. Primary consideration 8.2 Family violence committed by the noncitizen additionally weighs very heavily against revocation of the mandatory cancellation of the visa. Primary consideration 8.4 Expectations of the Australian community weighs very heavily against revocation.
Primary consideration 8.3 Best interests of minor children in Australia affected by the decision weighs to a limited extent in favour of the applicant.
Of the other considerations only clause 9.4 of Direction 90 Links to the Australian community, carries limited weight in favour of revocation of the mandatory cancellation of the visa.
Three primary considerations weigh very heavily against revocation of the mandatory cancellation of the visa. They are not outweighed by the primary consideration 8.3 Best interests of minor children in Australia affected by the decision and the other consideration of Links to the Australian community.
Accordingly, there is not “another reason” why the reviewable decision should be revoked.
Decision
By reason of the foregoing matters, the reviewable decision is affirmed.

I certify that the preceding 170 (one hundred and seventy) paragraphs are a true copy of the reasons for the decision herein of R Cameron, Senior Member

.....[sgd].............................................
Associate
Dated: 25 October 2022

Dates of hearing:
12 October 2022

Applicant, self-represented:

Advocate for the Respondent:

Lee Caanan Te Huia

Claire Campbell

Solicitor for the Respondent: HWL Ebsworth

[2022] AATA 3547

25 October 2022

Key Legal Topics

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Immigration

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Judicial Review

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