Thompson and Minister for Immigration and Multicultural Affairs (Migration) - [2025] ARTA 29

Thompson and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 29 (20 January 2025)
Applicant:John Thompson
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2022/8857

Tribunal:Senior Member A. Nikolic
Place:Melbourne
Date:20 January 2025

Decision:The Tribunal affirms the decision under review.

...............[SGD]........................................................
Senior Member A. Nikolic
Catchwords
MIGRATION – mandatory visa cancellation – citizen of New Zealand – Special Category (Temporary) (TY-444) visa – whether applicant passes character test – serious violent offending – murder – substantial criminal record – failure to pass character test – whether another reason to revoke the mandatory cancellation – Ministerial Direction no. 110 applied – reviewable decision affirmed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Brooke and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 389
Brownlie vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 436
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
CTK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1211
CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101
DPP v Amadi and Anor [2018] VCC 1472
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 056
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs (2024) 98 ALJR 475
Matthews v Minister for Home Affairs [2020] FCAFC 146
McKay v R [2000] FCA 155
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023) 276 CLR 136
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs (2022) 276 CLR 80
Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
RGCZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2002) 295 FCR 365
R v Thompson [2008] NSWSC 109
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 296 FCR 582
Spruill v Minister for Immigration and Citizenship (2012) 135 ALD 45
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Thompson v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] FCA 776
Thompson v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 96
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187
TCXM v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2820
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Don Andrews and James Bonta, The Level of Service Inventory–Revised (Multi-Health Systems Inc. 1995)
Sentencing Advisory Council (Vic), ‘Imprisonment’ (Web Page, updated 7 May 2024)
REASONS FOR DECISION
Senior Member A. Nikolic
20 January 2025
INTRODUCTION

Mr John Thompson (the Applicant) has asked the Tribunal to review the Respondent’s decision not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (the visa).[1] The cancellation decision was made on 15 March 2019 while the Applicant was serving a sentence of imprisonment for murder.[2]
[1] Exhibit R1, 1-2.
[2] Ibid 83-7.
In April 2019, the Applicant sought revocation of the cancellation decision.[3] He was advised on 10 October 2022 that this was unsuccessful.[4]
[3] Ibid 89-157.
[4] Ibid 3-4.
On 27 October 2022, the Applicant asked the Tribunal to review the non-revocation decision.[5] On 11 January 2023, the Tribunal, differently constituted, affirmed this.[6]
[5] Ibid 1-2.
[6] Thompson v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 96.
The Applicant appealed to the Federal Court of Australia.
On 18 July 2024, Justice Halley quashed the Tribunal’s decision and remitted the matter for redetermination according to law.[7] His Honour found that the Tribunal erred by failing to respond to the Applicant’s claim that removing him to New Zealand constituted a loss of opportunity to establish a future relationship with his son.[8]
[7] Exhibit R1, 376-400 [61]; Thompson v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] FCA 776.
[8] Exhibit R1, 391 [63], 398-9 [99]-[104].
The remitted hearing was held by video in the Tribunal’s Melbourne Registry on 8 and 9 January 2025. The Applicant was represented by counsel at his judicial review application in March 2024[9] but was self-represented at the current hearing. The Respondent was represented by Mr Alexander Zhang, a solicitor from Clayton Utz Lawyers.
[9] Ibid 378.
For the following reasons, the Tribunal affirms the reviewable decision.
BACKGROUND FACTS
The Applicant is a 41-year-old New Zealand citizen of Samoan origin. He first arrived in Australia in 2001 at the age of 18 and has not departed since.[10]
[10] Ibid 82.
In June 2003, the Applicant began a relationship with a woman in Australia (the deceased). They had a child together in June 2004. On 26 January 2006, the Applicant murdered the deceased. On 14 March 2008, he was sentenced by the New South Wales Supreme Court to 20 years’ imprisonment with a non-parole period of 15 years.[11]
[11] Ibid 27, 30-47; R v Thompson [2008] NSWSC 109.
The Applicant’s biological child is now an adult.
LEGISLATIVE FRAMEWORK
Section 13 of the Administrative Review Tribunal Act 2024 (Cth) (the ART Act) and s 500(1)(ba) of the Migration Act 1958 (Cth) (the Act)[12] are the sources of the Tribunal’s jurisdiction in this matter.
[12] Migration Act 1958 (Cth) (‘The Act’).
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and a person does not pass it if they have a ‘substantial criminal record’ as defined by s 501(7). This includes if they have been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
Under s 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make revocation submissions. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act confers a discretionary power on the Minister to revoke the original decision if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied the person either passes the character test, or there is another reason why the original decision should be revoked.
Sections 49–50 of the ART Act provide that the procedure of the Tribunal is at its discretion and the Tribunal must act with as little formality and technicality as a proper consideration of the matters before it permits. Section 52 of the ART Act provides that ‘the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it considers appropriate’.
ISSUE
The Applicant has been sentenced to a term of imprisonment exceeding 12 months, has a substantial criminal record, and does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision. The remaining issue under s 501CA(4)(b)(ii) of the Act is whether there is ‘another reason’ for revocation. The Tribunal must read, identify, understand, and evaluate the Applicant’s clearly articulated representations or those obviously arising from the evidence.[13]
[13] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (‘Plaintiff M1/2021’), [22], [25], [27], [36] (Kiefel CJ, Keane, Gordon, and Steward JJ).
DIRECTION 110
In making its decision, the Tribunal must comply with a ministerial direction under s 499(1) of the Act, known as ‘Ministerial Direction 110’ (the Direction).[14] The Direction contains mandatory and aspirational considerations guiding the exercise of statutory power.[15]
[14] The Act (n 12) s 499(2A); CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 284 FCR 416, 417-8 [4] (Rares, O’Callaghan and Jackson JJ); Nathanson v Minister for Home Affairs (2022) 276 CLR 80, 540 [4]; Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (commenced 21 June 2024) (‘The Direction’).
[15] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, [45].
Clause 5.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens’.
The following principles at cl 5.2 of the Direction provide a framework within which decision‑makers should approach their task:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measureable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non‑citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision‑maker must have regard to clauses 8 and 9, where relevant to the decision.
Clause 8 of the Direction identifies the following primary considerations:
(1)Protection of the Australian community from criminal or other serious conduct;
(2)Whether the conduct engaged in constituted family violence;
(3)The strength, nature and duration of ties to Australia;
(4)The best interests of minor children in Australia; and
(5)Expectations of the Australian community.
Clause 9(1) of the Direction sets out a non-exhaustive list of other considerations:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed; and
(c)Impact on Australian business interests.
Clause 7(1) provides that when applying primary and other considerations, appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that the primary consideration ‘Protection of the Australian community’ is ‘generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations’.
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’.
The weight given to an Applicant’s claims and the individual and cumulative weighing process is a matter for individual decision-makers.[16]
EVIDENCE
[16] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138, [28], [37]–[38] (Colvin, Stewart and Jackson JJ); Nguyen v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 160, [23] (Perram, Colvin and Abraham JJ); Singh v Minister for Immigration, Citizenship and Multicultural Affairs (2023) FCR 582, 587 [23] (Mortimer J, as her Honour then was); Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, 551 [23], 522 [28] (Colvin J); Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, 473 [57].
Documentary evidence
The following documents were tendered into evidence:
(a)Hearing Book from the Respondent numbering 400 pages;[17]
(b)Bundle of material obtained under summons numbering 282 pages;[18]
(c)Two-page email from the Applicant dated 22 November 2024 about proposed witnesses, and an email response from the Tribunal encouraging him to obtain written statements as soon as possible;[19] and
(d)Transcript of the first Tribunal hearing dated 5 and 6 January 2023.[20]
[17] Exhibit R1.
[18] Exhibit R2.
[19] Exhibit T1.
[20] Exhibit T2.
Applicant’s evidence
On 21 August 2024, the Tribunal issued scheduling orders requiring the parties to submit witness statements and other documents intended to be relied upon at the hearing. Given his self-represented status, the Tribunal provided the Applicant with contact details for possible pro bono assistance and an outline of what a Statement of Facts, Issues, and Contentions (SFIC) [21] might contain. The Applicant had until 11 October 2024 to lodge his documents but failed to do so. The Tribunal emailed him on 14 October 2024 to enquire about the reason for non-compliance and whether he was seeking an extension of time. The Applicant failed to respond, and a non-compliance hearing was held on 21 November 2024 at which the Applicant appeared. Amended scheduling orders were issued requiring the Applicant to submit his materials by 9 December 2024 and to provide any reply to the Respondent’s materials by 23 December 2024. On 22 November 2024, the Applicant emailed the Tribunal listing potential witnesses and the evidence they could provide.[22] The Tribunal responded by return email that he should obtain written statements as soon as possible, but the Applicant again failed to submit any materials by 9 December 2024 or prior to the commencement of the hearing.
[21] A SFIC is routinely lodged by parties during the pre-hearing phase. It is comparable to a pleadings document in a judicial proceeding and serves to identify and narrow the issues in dispute. It also helps ensure both sides are aware of each other’s case.
[22] Exhibit T1.
Upon commencement of the hearing on 8 January 2025, the Applicant failed to appear on the video link established with Villawood Immigration Detention Centre (VIDC). The Tribunal’s enquiries with custodial staff disclosed that the Applicant had stated that he was ‘not interested’ in attending. The Tribunal adjourned the hearing and advised the Applicant by email and via a message passed by custodial staff that it was in his interests to attend the hearing of his application. He was further advised that continued refusal to appear may result in the Tribunal dismissing his application pursuant to s 99 of the ART Act or proceeding in his absence under s 81 of the ART Act.
On 9 January 2025, the Tribunal again established a video connection with VIDC. Custodial staff advised, however, that the Applicant again refused to attend the hearing. Given this was a remitted application from the Federal Court, which the Applicant had not withdrawn, and there was a considerable quantity of documentary material, including the transcript of the first hearing, the Tribunal decided to proceed in his absence under s 81 of the ART Act.
The Tribunal has considered the Applicant’s past documentary evidence and the oral evidence he gave at the first Tribunal hearing in January 2023.[23]
PRIMARY CONSIDERATIONS
[23] Exhibit R1, 90-134; Exhibit T2.
Protection of the Australian community from criminal or other serious conduct
Clause 8.1 of the Direction states:
(1)   When considering protection of the Australian community, decision-makers should keep in mind that safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2)   Decision-makers should also give consideration to:
a)    the nature and seriousness of the non-citizen’s conduct to date; and
b)    the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Under cl 8.1.1(1) of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)    violent and/or sexual crimes;
(ii)   crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)    causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)   crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
(e)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(i)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Tribunal consideration: The nature and seriousness of the conduct

The Applicant has not previously disputed his criminal history.[24] Since 2005 this includes several counts of assaulting and resisting police officers, which includes striking and spitting blood into the face of a police officer.[25] This conduct resulted in non-custodial sentences of up to 12 months supervised probation. The Applicant’s crimes also include assault of others,[26] offensive behaviour in a public place,[27] and damaging property.[28]
[24] Ibid 27-9.
[25] Exhibit R2, 240, 245.
[26] Ibid 268.
[27] Ibid 239-40.
[28] Ibid 241.
The Applicant’s most serious crime is the murder of his de facto partner on 28 January 2006. The Court noted during sentencing that this crime was ‘extremely serious’.[29] The Applicant was found to have experienced ‘jealous rage’ of ‘sudden onset’, which followed heavy consumption of alcohol, and was ‘entirely unjustified’.[30] Reference is made to him needing to bring his poly-substance abuse under control, which included heroin, amphetamines, ice, cannabis, and binge drinking of alcohol.[31]
[29] Exhibit R1, 40 [52], referring to R v White [2005] NSWSC 667.
[30] Ibid 41 [55], [57].
[31] Ibid 36 [36], 43 [71].
The Court held that the Applicant’s attack on the victim was not planned or premeditated and he only ‘intended to cause grievous bodily harm…but…not…to kill her’.[32] The Court noted, however, that: ‘…it was well known to [the Applicant] that when heavily affected by alcohol he was prone to behave violently and that on occasion such violent behaviour was directed against the deceased’.[33] Because of this knowledge, the Court found the objective seriousness of the Applicant’s conduct was not greatly reduced by intoxication.[34]
[32] Ibid 41 [56].
[33] Ibid 42 [63].
[34] Ibid [64].
The evidence includes references to a graphic crime scene that need not be repeated in detail. In summary, the victim was ‘a much smaller and defenceless woman’[35] who sustained severe head injuries.[36] The attack was described as ‘frenzied’ and of prolonged duration.[37] Forensic evidence concluded that death resulted from ‘blunt force trauma’.[38] The Applicant was on conditional liberty at the time and breached an apprehended violence order that precluded him approaching the victim if he consumed alcohol within the previous 12 hours.[39] It is noteworthy that the violence leading to the victim’s death was ‘the latest in a series of assaults’[40] It is also noteworthy the Applicant’s infant child climbed out of his cot, came downstairs, and woke the Applicant after the murder.[41] The child had blood on him, which indicated that at some stage during the early morning hours he lay with his dying or deceased mother on the floor.[42]
[35] Ibid 46 [82].
[36] Ibid 43 [68]; 46 [82].
[37] Ibid 34 [23].
[38] Ibid 34 [20], [22].
[39] Exhibit R2, 254.
[40] Exhibit R1, 46 [82]; Exhibit R2, 249-50, 254.
[41] Exhibit R1, 35 [24]-[25].
[42] Exhibit T2 (5 January 2023) 30 [18]-[24], 31 [15]-[26].
In addition to the Applicant’s crimes, other conduct may be relevant to the Tribunal’s consideration despite not leading to charges or convictions. Due to the Applicant’s refusal to attend the hearing, he could not be questioned about the following:
(a)Notwithstanding the absence of drug convictions in the Applicant’s criminal history, there are frequent references in his evidence and the court remarks to persistent illicit drug use, including in custodial settings.[43] The Court stated:[44]
40. The offender told Dr Westmore that he had used illicit drugs in prison including heroin, cocaine and "bupe". He had been taking those drugs intravenously and had used them about twenty times between August 2006 and August 2007. He said that he had stopped drug use when he commenced a methadone program in 2007.
41. In January 2008 when Dr Westmore asked about his drug abuse in prison the offender said he had taken cannabis, heroin and buprenorphrine. He said that he had last used drugs a few months before. The offender told Dr Westmore that he had attended about six drug and alcohol courses while in prison and that he wanted to do more courses to help with his drug problem. In relation to his drug behaviour generally he said:
"At present there is nothing in the world that can take away the pain except drugs. know if I get out l will use drugs again to get away from the pain. I used to use a lot of ice on the outside."
(b)Records from the NSW Department of Corrective Services refer to the Applicant committing multiple breaches of custodial rules between 2007 and 2018.[45] This includes by engaging in aggressive, destructive, abusive, intimidatory, and violent behaviours. He is recorded as possessing illicit drugs or home brew, an offensive weapon, drug implements such as a syringe, receiving contraband from a visitor, and failing drug tests on several occasions.[46]
(c)In 2007, while imprisoned, the Applicant was found guilty on two counts of possessing a mobile phone and sim card, resulting in a sentence of three months’ imprisonment.[47]
(d)A record from the NSW Department of Corrective Services states that on 1 October 2020 the Applicant threatened to ‘cave’ in an officer’s head.[48]
(e)On 26 September 2022, the Applicant is reported to have received five days’ cell confinement for possessing tobacco in breach of custodial rules.[49]
[43] Exhibit R1, 36 [36], 37 [40]-[41], [107-108]; Exhibit R2, 153, 188-9, 191, 193, 260; Exhibit T2 (5 January 2023), 36 [42], 37 [16], 42 [13], 43 [29], 45 [11], 46 [15], (6 January 2023) 3 [45].
[44] Exhibit R1, 37 [40]-[41].
[45] Ibid 51-2; 80-1; Exhibit R2, 4-36.
[46] Exhibit R1, 53-77.
[47] Exhibit R2, 264.
[48] Ibid 155.
[49] Ibid 219.
In terms of the weight given to police or custodial records, these documents are routinely part of the evidence in visa cancellation cases. They are usually obtained under summons and do not assume the status of evidence until tendered and admitted. Their value is routinely tested during questioning, which could not occur on this occasion due to the Applicant’s non-appearance. The Tribunal is not bound by the rules of evidence[50] and although such records may not have been verified by an Applicant or substantiated in court, the Tribunal is not prevented from considering them as ‘other conduct’ pursuant to cl 8.1.1(1) of the Direction. As Kenny J has pointed out, however, the Tribunal should treat contemporaneous records of this kind carefully and acknowledge the ‘limits of the material before it that was said to evidence such conduct, including its cogency and reliability’.[51]
[50] ART Act, s 52.
[51] CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101, 124 [100].
Tribunal findings: The nature and seriousness of the conduct
The following findings are made:
(a)The Applicant has committed violent crimes, including the murder of his female partner on 28 January 2006. This is one of the most serious offences in criminal law and falls within the meaning of cl 8.1.1(1)(a)(i)-(iii) of the Direction. The Applicant has also assaulted or resisted police officers in the performance of their duties, which falls under cl 8.1.1(1)(b)(ii) of the Direction.
(b)The devastating impact on victims of the Applicant’s offending, namely the deceased’s mother and brothers, is apparent from the Court’s remarks.[52]
(c)The Applicant has committed multiple crimes since a young age. His initial interactions with the criminal justice system in 2005, resulting in non-custodial dispositions, should have diverted him from further crime but did not. His conduct escalated in seriousness from behaving offensively, destroying property, larceny, assaulting others, to murdering his de facto partner.
(d)Imprisonment is the most severe punishment available. The 20-year sentence received by the Applicant amply conveys the seriousness of his crime.[53] There has been an adverse cumulative impact of his behaviour that reflects a disregard for Australian laws and the rights of others. His conduct has imposed considerable harm and costs on the Australian community.
[52] Exhibit R1, 38-9 [46]-[47].
[53] See for example: Sentencing Advisory Council (Vic), ‘Imprisonment’ (Web Page, updated 7 May 2024) <
In terms of ‘other conduct’, the Tribunal is satisfied the Applicant has abused illicit drugs for protracted periods in the community. Multiple reports written by different custodial officers on different days also refer to the Applicant’s misconduct in custody. There is no evidence that what is contained in these reports reflects other than what the officers observed. The totality of these records enables a reliable finding that the Applicant has not been consistently compliant in custodial settings.
The totality of the Applicant’s offending and other misconduct is extremely serious.
Tribunal consideration: Risk to the Australian community should the non‑citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction provides:
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.
Clause 8.1.2(2) of the Direction states that in assessing the risk the non-citizen poses to the Australian community, decision-makers must take into account, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non‑citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(c)where consideration is being given to whether to refuse to grant a visa to the non‑citizen — whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
This aspect of the Direction requires a ‘future‑focused assessment’[54] of the risk an applicant poses should they reoffend, taking into consideration the nature of any harm and its probability. In Guo,[55] the High Court held that past actions can be legitimate predictors of future behaviour. The majority observed, however, that past events ‘are not a certain guide’ and, depending on circumstances, the probability of an event occurring could be so low as to be ‘safely disregarded,’ or at the other extreme ‘may border on certainty’.[56] The majority also observed there are several factors arising in making such evaluations, and that it is ‘ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events’.[57]
[54] CTK17 v Minister forImmigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1211 [90] (Kerr J). See also Murphy v Minister for Home Affairs [2018] FCA 1924, [37] (Mortimer J).
[55] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 574 (‘Guo’).
[56] Ibid 574-5.
[57] Ibid 575.
Nature of harm
A repeat of the Applicant’s violence has the potential to cause devastating harm. This includes death or serious physical / psychological injury.
Drugs, alcohol, and gambling
The Applicant has suffered persistent polydrug and alcohol problems since a young age. This includes intravenous use of illicit drugs such as heroin and crystal methamphetamine in the community, and buprenorphine while imprisoned.[58] He was on the Methadone Program during January to September 2007[59] and re-commenced on the Program on 25 July 2019.[60] The latter occurred only a few months after the mandatory cancellation of his visa.[61] Corrective Services NSW noted in a report dated November 2020 that the Applicant:
…appeared to have little insight into his drug use, or the health effects of these substances. He indicated this by not seeing his drug use as problematic and stated that they were all "good memories".[62]
[58] Exhibit R2, 188-9.
[59] Ibid 189.
[60] Exhibit R1, 107, 133.
[61] Exhibit T2 (5 January 2023), 43 [15], [43].
[62] Exhibit R2, 156, 189.
The evidence refers to the Applicant’s past problem with gambling, which caused conflict between him and the deceased.[63] There is no evidence about rehabilitation being undertaken for this or to enable him to better deal with financial stressors.
[63] Ibid 189.
Remorse and rehabilitation
The Applicant expresses shame in documentary evidence for his past violence.[64] He refers to involvement in a restorative justice process with members of the deceased’s family by writing them letters,[65] but there is no corroborating evidence of this before the Tribunal.
[64] Exhibit R1, 102, 105; Exhibit R2, 153-4, 208, 216, 220.
[65] Exhibit R1, 111.
The Tribunal has considered documents relating to rehabilitative, vocational, and self-development courses the Applicant has undertaken while in custody.[66] These include multiple references to him declining to attend, failing to attend, or intermittently engaging with sessions relating to domestic abuse, aggression, and the Intensive Drug and Alcohol Therapy Program (“IDATP”).[67] The Tribunal notes the recommendation from Corrective Services NSW about the Applicant’s unmet rehabilitative needs, supervision requirements, and other conditions if released.[68] These are assessed as requiring a ‘high level of intervention’ to address criminogenic needs.[69] The Applicant stated in a letter to the Respondent in July 2020 that he was ‘beginning [his] journey towards … something better, stronger, and greater than what [he] used to be’.[70] It is noteworthy in this regard that since 2022, the Applicant’s engagement with rehabilitative opportunities and conduct in custody has improved. He is noted to have completed the IDATP on his third attempt, did not return ‘any positive samples for unprescribed drugs’, ‘become a peer mentor’, and ‘also reported implementing mindfulness strategies as a way of overcoming any mental health concerns’.[71] He was also noted to be undertaking agricultural studies and working in two positions at the correctional centre.[72]
[66] Ibid 102, 134-47; Exhibit R2, 37-146, 158-9.
[67] Exhibit R1, 136-43, 145-6; Exhibit R2, 39, 158, 163, 207-9, 212.
[68] Exhibit R2, 161, 221-2, 224.
[69] Ibid 190
[70] Exhibit R1, 108.
[71] Exhibit R2, 219-20.
[72] Ibid 227.
Behaviour in custody
A report from Corrective Services NSW dated November 2020 stated:
Mr Thompson's behaviour in custody has been unsatisfactory due to non-compliance with adhering to correctional routine and lack of addressing his offending behaviour through programs, despite being afforded numerous opportunities.
Since his admission to custody on 29 January 2006, Mr Thompson has had 19 institutional misconducts. The offences related to possess drug implements and failed urine tests, aggression, possess contraband and not complying with correctional centre routine. All instances of non-compliance are reflective of his inability to respond appropriately to conflict, subsequently defaulting to drug use and aggression.
Upon sentencing, Mr Thompson was initially classified as A2 Maximum Security and progressed to B Medium on 15 December 2013. He then gained a C1 Minimum Security classification until 25 May 2019 when he regressed to B Medium due to misconduct, having been found with a mobile phone.
Due to Mr Thompson 's most recent misconduct on 1 October 2020, where he threatened a Custodial Officer and damaged property, as he claimed he was frustrated with correctional centre routine, the Classification Officer confirmed Mr Thompson is deemed unsuitable for placement within Bathurst Correctional Centre.
…
Mr Thompson has been employed in various industries whilst in custody, including Upholstery, Bakery, Engineering, Cleaning and Powder coating. It is noted that he has been terminated from employment on five occasions due to misconducts, including taking unauthorised materials from employment, failing to attend and poor behaviour.
Mr Thompson was employed as an Accommodation Sweeper at Bathurst Correctional Centre since 20 September 2019 until his most recent misconduct on 1 October 2020. He received several positive feedback reports from Custodial Officers for his work.[73]
[73] Ibid 157, 159.
The report goes on to state that upon release from custody the Applicant requires referral ‘to a psychologist to deal with reintegration, self management and relationships issues as his level of aggression is not only reflected in a domestic or family context’.[74] This report further summarises the Applicant’s custodial conduct:
[74] Ibid 156.
Since March 2020, Custodial Officers have given mixed responses on their feedback in relation to Mr Thompson's behaviour and interactions. A consistent pattern has emerged which includes his impulsive and aggressive attitude when not following correctional centre routine.
More recently, Mr Thompson claimed he is able to recognise his presentation when annoyed and has reported he been practising strategies, whilst keeping his self-talk into perspective and showing empathy to others. However, it appears his engagement is superficial given he is not able to effectively apply this to common situations on a consistent basis.
…
Throughout Mr Thompson's period of incarceration, he has demonstrated a largely varied response and appears to have self sabotaged a number of opportunities to progress within a custodial setting. It is unknown whether Mr Thompson has a general disregard for his rehabilitative needs however his behaviour in custody would suggest such, specifically noting his recent his behaviour which compromised his position for the IDATP.
It should be noted that Mr Thompson's substance use has been consistently identified as a treatment need given the correlation of this to his offending behaviour. At [43] of the JSR's, Dr Westmore indicated that he will require "an extended period of community based drug rehabilitation. He also needs to attend further drug and alcohol rehabilitation courses in custody". Despite having completed the foundational program EQUIPS, Mr Thompson is yet to complete specific treatment related to substance use and unsurprisingly presents with limited realistic strategies on how to refrain from regressing to such behaviours in the community.
In addition to further treatment for his substance use, Mr Thompson has only recently demonstrated the ability to consider the impact of his behaviour upon the victim. It appears that he has managed to elude direct conversations relating to such and has been encouraged to utilise psychological support in custody to explore this in depth, however he is yet to self refer.
In stating the abovementioned, Mr Thompson has completed other programs during his period of incarceration and has recently shown improvement with regards to the level of engagement in PGl's with his supervising officer. Despite presenting with a perceived educational intelligence during his engagement, he continues to have difficulty in practically applying concepts to manage his emotions and behaviours on a day to day basis. This in turn raises a number of concerns in relation to the safety of the community and more specifically, the safety of Mr Thompsons new partner should they continue their relationship in the community.
It is considered that Mr Thompson would benefit from completion of offence specific programs and development in the area of his attitude/behaviour prior to being considered for release to parole. As such, Ms [redacted] recommendation against the making of a parole order is supported.
…
The recommendation of both Ms [redacted] and Ms [redacted] are supported. It is disappointing that Mr Thompson has not adhered to correctional centre routine or developed appropriate coping strategies in the custodial environment. Further, his continued aggressive behaviour towards correctional centre staff does not auger well for his response to similar situations in a community setting.
A period of participation in pre release leave programs would assist Mr Thompson in his transition from the institutional environment to the community setting and the stressors associated with such a transition. However, his continued failure to comply with correctional centre routine, poor prison behaviour and continued drug use means that it is unlikely he will be able to achieve the required classification in the foreseeable future.
These regressions in classification have also resulted in Mr Thompson being removed from the IDAPT on no less than two occasions.
Notwithstanding his current citizenship status, Mr Thompson's lack of suitable post release accommodation is also noted.
Should he want to be recommended for release to parole in the future, Mr Thompson will need to complete the IDAPT and demonstrate a prolonged period of positive prison performance, no further institutional misconduct charges and maintain a lower security classification.
…
Mr Thompson's lack of progress in the custodial environment is noted. He has participated in a number of programs; however, he appears to be less motivated to complete the more intensive IDAPT Program given his actions resulting in removal. The successful completion of his therapeutic pathway in custody is considered necessary for release.
Whilst his immigration status will need to be clarified before he can be considered, participation in leave programs would also form part of Mr Thompson's reintegration pathway, should he be eligible. This would also assist in Mr Thompson also identifying appropriate accommodation for his release.
As outlined above, at this stage, Mr Thompson's ongoing threats and intimidatory behaviours indicate that he remains a risk to the community should he be released at this time. Therefore, the recommendation against release to parole is supported.
…
Until Mr Thompson demonstrates a period of pro-social behaviour and participates in rehabilitation programs his risk to the community cannot be mitigated.
…
Mr Thompson is yet to display any change of behaviour and/or attitude that may mitigate his risk to the community. He continues to demonstrate anti-social attitudes and behaviours in custody and has failed to complete any significant behaviour change interventions.
He has not provided any confirmed accommodation details in the Tweed Heads area therefore increasing his risk of non compliance with interstate travel requirements. To add to further risk obtaining private rentals within the Tweed Heads region is difficult and very expensive. He is yet to apply for a transfer of parole to QLD .
Given Mr Thompson's failure to demonstrate appropriate behaviour change during his lengthy prison term, Ms [redacted] concerns regarding the ongoing risk to the community is supported.[75]
[75] Ibid 156, 163-5, 203.

In a subsequent report dated 14 December 2021, improvements are noted in the Applicant’s attitude towards his past offending and that he ‘appeared to demonstrate a significant period of stability’ regarding substance abuse.[76] This included passing urinalysis tests and improved custodial conduct.[77] This report also notes that the Applicant had requested to have his parole order transferred to Queensland to enable him to reside with Ms Agudelo, his current partner, but this was ‘not supported by Community Corrections…’.[78]
[76] Ibid 207.
[77] Ibid 208.
[78] Ibid 209, 212.
Risk
The Applicant contextualises his propensity for violence as originating in an abusive childhood, absence of a parental role model, substance abuse, and mental health issues. The Court found the latter played no part in his offending. He has acknowledged the need for further Alcohol and Other Drug treatment and expressed concerns about relapsing into alcohol abuse upon release ‘as a coping mechanism in negative situations’.[79]
[79] Ibid 189.
There is no recent expert evidence about the Applicant’s recidivism risk. He stated the following in revocation submissions dated April 2019:[80]
‘I believe I am a low risk to the community as I now have an understanding of the effects of Alcohol & illicit substances and their impact on my behaviour. I have spent a vast amount of my time in custody learning and addressing my unacceptable behaviours. Being in custody and learning not only from professionals but also from others coming into custody influenced by illicit substances has enabled me to view life differently’.
[80] Exhibit R1, 303-4.
The Applicant is noted to be of special interest to the Commissioner of Corrective Services in NSW as a ‘High risk violent offender’.[81] Assessments by Corrective Services NSW in late 2020, 2021, and 2022 found him to constitute ‘a Medium risk of reoffending according to the Level of Service Inventory - Revised (LSI-R)’.[82] Recommendations were made in December 2021 and March 2022 to refuse his parole, including because of non-completion of the IDATP.[83] A report dated September 2022, however, recommends his suitability for parole with multiple conditions.[84]
[81] Exhibit R2, 222, 230.
[82] Ibid 160, 210, 221, 228.
[83] Ibid 214, 217.
[84] Ibid 223-4.
Protective factors
In terms of protective factors, a consistent theme in the Applicant’s evidence is that he is motivated to meaningfully change the course of his life by the interests of Ms Agudelo and her child. He also expresses an intention to resume employment, re-engage with his faith community and involve himself in prosocial sporting and community activities.
Tribunal findings: Risk to the Australian community should the non‑citizen commit further offences or engage in other serious conduct
The Tribunal finds:
(a)A repeat of the Applicant’s violence has the potential to result in death or serious physical or psychological injury, or adverse psychological effects on family members.
(b)The Applicant’s crimes and other misconduct are contextualised by persistent alcohol and drug abuse. His past engagement with conditional liberty orders and rehabilitative opportunities is generally poor.[85] He has completed some rehabilitative, vocational, and self-development courses, and has been on the Methadone Program since soon after his visa was cancelled in 2019.
(c)The Applicant has used illicit drugs and engaged in non-compliant behaviours in custodial settings. It is accepted he has remained abstinent and displayed improved behaviour in the last few years. That said, his violence against police, the deceased, and record of non-compliant or aggressive behaviours in custody reflect a persistent propensity for anger and poor decision-making.[86] This casts doubt on his claimed insight, rehabilitative progress, and recidivism risk. Any abstinence and compliance with custodial rules in more recent times is relatively brief.
(d)The Applicant’s claim about constituting a low recidivism risk is uncorroborated by expert opinion. Moreover, someone with developed insight would not have continued to use illicit drugs or engage in aggressive conduct in custody. It is noteworthy this traverses several years after visa cancellation, when the Applicant was on notice that his ability to remain in Australia was being actively considered.
(e)The Applicant has unmet rehabilitative needs relating to anger, violence, and drug dependence. Subject to expert assessment, this may also extend to problem gambling and dealing with financial and other life stressors. It is noteworthy the Applicant previously refused to participate in an EQUIPS Aggression Program in November 2019 and was found ineligible for the Violent Offender Treatment Program ‘due to his medium LSI-R risk rating’.[87] In any event, decisions should not be delayed for rehabilitation to be undertaken.[88] The Applicant is likely to be confronted by stressors when released after a lengthy period in custody. This includes because his plans to re-establish himself in another state with Ms Agudelo are yet to be approved. There is also no recent evidence from Ms Agudelo about the current state of their relationship. The Applicant refers in his most recent evidence to potentially living with a friend who is a former inmate. His plans for stable accommodation or employment are yet to be persuasively advanced.
(f)The Tribunal accepts the general proposition that the care and support of a loving partner can be a protective factor relevant to future recidivism risk. Less weight is placed on the protective effects of the Applicant’s current relationship with Ms Agudelo and her child, however, because this commenced while he was imprisoned. His contact with Ms Agudelo has been limited and he has never met the child. The nature of this relationship, just like the relationship the Applicant relied upon in 2019, is untested in the community and founded on an aspirational basis. It would be impacted by whether approval is granted for the Applicant’s parole to be transferred interstate, or whether Ms Agudelo decides to relocate to his approved parole location, which remains uncertain. It is noteworthy that the past presence of a partner, child, employment, and other prosocial involvement did not motivate meaningful and enduring changes in the Applicant’s life.
(g)Little weight is placed on the Applicant’s references to possible support from his father,[89] a former inmate, and others he referred to in Exhibit T1. There is no corroborating evidence to clarify the extent to which they might assist the Applicant. The Tribunal’s concerns are only heightened by the possibility that the Applicant intends to rely on support from a former prisoner whose background remains unclear and from whom there is no statement. It is uncertain if this is acceptable from a parole perspective.
[85] Ibid 186-7.
[86] Ibid 157-9.
[87] Ibid 158.
[88] The Direction (n 14) cl 8.1.2(2)(b)(ii).
[89] Exhibit T1 (6 January 2023) 13 [39].
The crime of murder falls into a category of conduct where even a low risk is unacceptable. The Applicant’s conduct for much of his time in custody has been inappropriate. The Tribunal does not accept he has sufficiently addressed factors contextualising his substance abuse and violence. The Tribunal has little confidence on current facts that the Applicant can avoid a relapse and further crimes or misconduct if released. His risk of committing violent offences is at least moderate and unacceptable. This primary consideration weighs very substantially against revocation.
Family violence committed by the non-citizen
Clause 8.2(1) of the Direction reflects the Australian government’s concerns about conferring on non-citizens who commit acts of family violence the privilege of coming into or staying in Australia. Clause 8.2(2) provides that this consideration is relevant where:
(a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
In considering the seriousness of family violence engaged in by a non-citizen, the Direction requires the following factors at cl 8.2(3) to be taken into account where relevant:
a) the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
Tribunal consideration: Family violence committed by the non-citizen
The High Court has held that cl 8.2 of a previous but comparable Ministerial Direction (Direction 90) ‘involves a field of operation separate’ to the other primary considerations.[90]
[90] Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2 [37], [39] (‘Ismail’).
The following history was recounted by the Court when sentencing the Applicant:[91]
There was a history of domestic discord in the relationship. Before the offence the deceased's family and friends had observed on occasions a number of injuries to the deceased, including black eyes, fat lips and bruising to her arms, neck and face.
On 24 August 2005 the offender punched the deceased in the face. This assault was reported to the police and the offender was convicted and placed on a 12 month … good behaviour bond. An apprehended violence order was also granted to protect the deceased. In addition to the general conditions of the order, the offender was subject to a condition which prohibited him from approaching the deceased within 12 hours of consuming intoxicating liquor.
The present offence was committed during the term of the bond and also during the period during which the apprehended violence order was in force.
[91] Exhibit R1 32.
Corrective Services NSW noted in a report dated November 2020 that the Applicant ‘admitted…he was physically abusive’ towards the deceased when intoxicated.[92] The report further noted the Applicant’s lack of participation in programs or counselling relevant to domestic violence. The Tribunal notes references, however, to ‘EQUIPS domestic abuse’ sessions undertaken by the Applicant in 2017.[93]
[92] Exhibit R2, 189
[93] Exhibit R1, 136-7.
Tribunal findings: Family violence committed by the non-citizen
The Tribunal has previously noted that violence against women and girls is devastatingly pervasive and ‘all too frequently committed by an intimate male partner’.[94] In TCXM the Tribunal stated: ‘…even one act can have enduring consequences…murder of a spouse constitutes family violence of the most extreme kind.[95]
[94] Brooke and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 389, [74].
[95] TCXM v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2820, [116].
The Applicant’s family violence culminated in the murder of his de facto partner who was the mother of his son. The child was 19 months’ old at the time and in an adjoining room. At some point in the early hours of the morning the child appears to have left his cot and lay with his mother on the floor, where he was exposed to blood from her injuries. There was at least one other incident of physical violence by the Applicant against the deceased prior to her murder and possibly other abusive, aggressive, and/or controlling behaviours. There is a clear trend of increasing seriousness in the Applicant’s conduct.
The Tribunal accepts the Applicant has undertaken some rehabilitation relevant to family violence, namely EQUIPS domestic abuse sessions. The remorse he previously expressed is noted, as are his claims about engaging in a restorative justice process with members of the deceased’s family,[96] and intending to dedicate his life ‘to the cause of domestic violence’ if released.[97] The persuasiveness of these claims, and others about insight, remorse, and rehabilitation, is diminished by the Applicant’s aggressive, destructive, abusive, intimidatory, and violent behaviours in custody.
[96] Exhibit R1, 111.
[97] Ibid 105.
On balance, this primary consideration weighs very substantially against revocation.
The strength, nature and duration of ties to Australia
Clause 8.3 of the Direction provides:
(1)   Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)   Where consideration is being given to whether to cancel a non-citizen’s visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non‑citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)    how long the non-citizen has resided in Australia, including whether the non‑citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Tribunal consideration: strength, nature and duration of ties in Australia
The Applicant was born in New Zealand and initially raised by a single mother and maternal grandmother. He had a stepfather from around the age of five and lived with multiple half-siblings. He moved to Samoa at around the age of 11, including because of ‘early behavioural problems’.[98] He was raised and educated in Samoa until 2001 before returning to New Zealand and then Australia in June of that year. He has resided in Australia for approximately 23 years, much of which has been spent in custody. There is scant evidence about the Applicant’s work in Australia prior to imprisonment.[99]
[98] Ibid 36 [31].
[99] Ibid 36 [32]; Exhibit R2, 187-8.
There are references in evidence to the Applicant’s biological father, sister, and nephews and nieces living in Brisbane.[100] The Tribunal has considered a letter from his stepsister dated 8 July 2020.[101] This is somewhat dated and there is no statement from her in the current proceeding. The Applicant also referred in revocation submissions to two brothers and ‘numerous’ aunts, uncles, cousins, and nieces / nephews living in Australia.[102] He goes on to say that his family ‘would love to help [him] on [his] road to healthy recovery’ and see this as a ‘duty’ to help him ‘find peace and healing’. There is no recent evidence from family members offering support on release.
[100] Exhibit R2, 154; Exhibit T2 (6 January 2023), 15 [45], 16 [1]-[18].
[101] Ibid 121-5.
[102] Exhibit R1, 101.
The Applicant referred in revocation submissions dated April 2019 to a ‘partner/fiancé’ since January 2018.[103] He claimed that he met her while imprisoned after receiving a letter from her that was ‘intended for another person with the same name’.[104] He further claimed that this fiancée is Aboriginal, has other children, and become pregnant to another man.[105] He nevertheless expressed an intention to marry her and accept the children as his own, including by having his name entered on the unborn child’s birth certificate. The Applicant referred to himself as the children’s ‘step daddy’ and said some of the children carry a photograph of him.[106] He plans to meet them and aspires to be a ‘responsible father figure’ in their lives. This relationship assumed much less prominence in the Applicant’s case from 2 December 2020, when he described it as ‘practically non-existent’ and stated that he had instead commenced a relationship with Ms Agudelo.[107]
[103] Ibid 96-7.
[104] Ibid 97.
[105] Ibid 99.
[106] Ibid 98, 100.
[107] Ibid 129-33.
The Applicant’s relationship with Ms Agudelo, who is an Australian citizen,[108] commenced during his imprisonment. The Applicant claims dramatic changes have occurred in his life because of this.[109] He does not provide Ms Agudelo with financial assistance and their relationship is limited to telephone calls and emotional support.[110] The Tribunal has considered Ms Agudelo’s statement[111] and oral testimony at the 2023 Tribunal hearing. She has a daughter who is 15 years of age[112] and there is also reference to her caring for an adult niece.[113] Ms Agudelo’s evidence at the 2023 Tribunal hearing is that she would welcome the Applicant as a partner in life and to be a father figure for her daughter, despite the Applicant not yet physically meeting her daughter.[114] Ms Agudelo stated she is unafraid of the Applicant and considers he was ‘young and naïve’ at the time of the murder.[115] She would be heartbroken if the Applicant started using drugs again but claims to have noticed positive changes in him. This includes because when they argue on the telephone, he is the one who defuses the conflict, which she finds ‘very calming…and…mature’.[116] It is noteworthy that in her evidence at the last Tribunal hearing Ms Agudelo was unaware of the complete history of the Applicant’s drug use while imprisoned.[117]
[108] Ibid 148-53.
[109] Ibid 115, 118, 121, 129.
[110] Exhibit T2 (6 January 2023), 15 [16]-[42], 21-4.
[111] Exhibit R1, 115-17.
[112] Ibid 120, 154.
[113] Ibid 118-9, 154.
[114] Exhibit T2 (6 January 2023), 27 [1]-[2].
[115] Exhibit R1, 288.
[116] Exhibit T2 (6 January 2023), 24 [2].
[117] Ibid 25 [30]-[43].
In terms of his biological son, the Applicant has stated he aspires to ‘one day ask his son's forgiveness’[118] and to have a future face to face’ relationship.[119] He claimed that his son tried to contact him through the Applicant’s previous fiancée in 2019, ‘expressed extreme interest in creating an open and ongoing relationship’, had ‘reached a critical stage of his young adolensent [sic] life’ and ‘ALREADY IS questioning the circumstances surrounding the…passing of his beautiful mother’ (emphasis in original). [120] In documentary submissions to the Respondent in 2020, the Applicant said he attempted to contact his son. In other submissions he claimed that his son had already chosen to have the Applicant and the Applicant’s then partner ‘as part of his life’.[121] In oral testimony at the last hearing, however, the Applicant said his son’s attempt to contact him resulted in the family becoming ‘very upset’, and the Applicant’s efforts at contact were precluded by court order.[122] He also referred to a visit from police at Goulburn Correctional Centre where he was told not to attempt contact with his son.[123] There is no corroborating evidence of any contact between the Applicant and his son since the murder in 2006, including since his son became an adult and any legal impediment to contact had ceased.
[118] Exhibit R2, 189.
[119] Exhibit R1, 100
[120] Ibid 98, 100.
[121] Ibid 111; 130-131.
[122] Exhibit T2 (6 January 2023), 9 [21]-[33].
[123] Exhibit R1, 130.

Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining whether there is ‘another reason’ why the visa cancellation should be revoked, the Tribunal has applied the Direction to the specific circumstances of his case. Pursuant to cl 7(2) of the Direction, the Tribunal affords Protection of the Australian community greater weight than the other primary considerations.
Much of the Applicant’s residence in Australia is contextualised by drug and alcohol abuse, crimes, imprisonment, or misconduct. He was not dissuaded from violent reoffending despite early interactions with the criminal justice system. His conduct escalated in seriousness and there has been an adverse cumulative impact of his behaviour that reflects a disregard for Australian laws and the rights of others. He has committed multiple violent crimes, most notably the murder of his de facto partner. This falls into a category of conduct where even a very low risk is unacceptable. Having regard for the norm described as the expectations of the Australian community, little tolerance would be extended to him, and he should expect to forfeit the privilege of remaining in Australia.
The Applicant’s custodial conduct has been poor overall, casting doubt on the persuasiveness of his claims about insight, remorse, and rehabilitative progress. He has acted in aggressive, abusive, violent, or other non-compliant ways. Any abstinence and compliance with custodial rules in recent years is relatively brief when compared to his overall history. The Tribunal does not accept the Applicant has sufficiently addressed the factors contextualising his past substance abuse and violence.
The Applicant continues to have unmet rehabilitative needs relating to anger, violence, and addiction. He is likely to be confronted by significant stressors after a lengthy period in custody. Little weight is placed on the protective effects of his relationship with Ms Agudelo. Prospects for this relationship, just like the 2019 relationship he relied upon, is largely aspirational. It is noteworthy that the past presence of a partner, child, employment, and other prosocial involvement did not motivate meaningful and enduring changes in the Applicant’s life nor prevent him from committing violent crimes.
The Applicant’s ties to the community after a 23-year residence in Australia are very limited and there is a dearth of supportive evidence from those who may be affected by a non-revocation decision. His ties may be long in duration but are weak on current facts. His claims about the potential for a closer paternal role with his biological son who is now an adult, the 15-year-old daughter of his current partner, and nieces and nephews are aspirational at best.
The Applicant did not advance substantial language, cultural, or other barriers to removal. There is no evidence that if he needed it, he would be denied the same support available to other New Zealand citizens. It is accepted, however, that a difficult period of transition confronts him if returned to New Zealand after a very long period in custody. This includes through loss of opportunity to advance his relationship with Ms Agudelo and perhaps attempting to reconnect with his son and other relatives in Australia.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because the three relevant primary considerations favouring non‑revocation considerably outweigh the combined weight to be given to the countervailing primary and other considerations.
DECISION
It follows that the Tribunal affirms the reviewable decision.

111. I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the written reasons for the decision herein of Senior Member A. Nikolic

................[sgd]........................................................
Associate
Dated: 20 January 2025

Date of hearing: 8 and 9 January 2025

Advocate for the Applicant:
Applicant refused to appear

Advocate for the Respondent:

Solicitors for the Respondent:

Mr Alexander Zhang

Clayton Utz Lawyers