Trout and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2024] AATA 629

Trout and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2024] AATA 629 (5 April 2024)
Division:GENERAL DIVISION
File Number:2021/1130
Re:Shaun Trout
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:5 April 2024
Place:Perth

The Reviewable Decision, being the decision of a delegate of the Respondent dated 23 February 2021, is set aside and substituted with a decision that the cancellation of the Applicant’s Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
...............[Sgd]......................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – mandatory visa cancellation – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – character test – substantial criminal record – offences include possessing prohibited drugs, dishonesty and property offences, contravention of domestic violence order – Applicant is a 40-year-old citizen of New Zealand who arrived in Australia as a 26-year-old adult – Direction No 99 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – family violence – strength, nature and duration of ties to Australia – best interests of minor son and daughter – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed to New Zealand – impact on victims – impact on Australian business interests – Reviewable Decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 499(1), 499(2A), 500(6B), 501, 501(3A), 501(3A)(b), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
CASES
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Moli and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 666
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
SCJD and Minister for Home Affairs [2018] AATA 4020
Trout v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 583
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Webb v Minister for Home Affairs [2020] FCA 831
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021)
Minister for Immigration, Citizenship, and Multicultural Affairs (Cth), Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (23 January 2023) paras 4(1), 4(1)(d), 5.1, 5.1(3), 5.1(4), 5.2, 6, 7, 8, 8(1), 8(2), 8(3), 8(4), 8(5), 8.1. 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii), 8.1.1(1)(a)(iii)), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.1(1)(h), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.2(2), 8.2(2)(a), 8.2(2)(b), 8.2(3)(a), 8.2(3)(c)(i), 8.2(3)(d), 8.3, 8.3(1), 8.3(2), 8.3(3), 8.3(4), 8.3(4)(a)(i), 8.3(4)(a)(ii), 8.3(4)(a)(iii), 8.4, 8.4(4), 8.4(4)(a), 8.4(4)(b), 8.4(4)(c), 8.4(4)(d), 8.4(4)(e), 8.4(4)(f), 8.4(4)(g), 8.4(4)(h), 8.5, 8.5(1), 8.5(2), 8.5(2)(a), 8.5(3), 8.5(4), 9, 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d),9.1, 9.1(2), 9.1(3), 9.2, 9.2(1), 9.3, 9.3(1), 9.4
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
5 April 2024
BACKGROUND

The Applicant is a 40-year-old man who was born in New Zealand. He arrived in Australia to reside permanently on 13 March 2010 when he was 26 years old (G11/76).
On 27 April 2020, the Applicant was sentenced in the Brisbane Magistrates Court after he pleaded guilty to 35 offences (G6/34). His sentence included 12 month concurrent terms of imprisonment for each of “enter premises with intent to commit indictable offence” (two counts) and “enter premises and commit indictable offence” (two counts) (G4/29-30; G6/36).
At the time of sentencing, the Applicant had been held in pre-sentence custody for 93 days from 25 January 2020 to 26 April 2020, and so the Magistrate released him on court ordered parole (G6/36).
The Applicant committed numerous further offences on 5, 23 and 24 August 2020, and so his parole was suspended indefinitely and he was returned to custody on 10 September 2020 (G8/69).
On 25 November 2020, the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (Visa) was mandatorily cancelled (Cancellation Decision) under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis that he had a substantial criminal record and was serving a full-time custodial sentence of imprisonment (G12/77).
The letter advising the Applicant of the Cancellation Decision advised that he could make representations to seek revocation of the Cancellation Decision. The Applicant sought revocation of the Cancellation Decision on 25 November 2020 (G7/49-52). He subsequently provided a personal circumstances form dated 12 December 2020 (G7/53-66).
On 11 December 2020, the Applicant was sentenced for numerous further offences he committed whilst on court-ordered parole together with two other offences that he had committed prior to going into pre-sentence custody. He was sentenced to one month imprisonment for the offence of “enter premises and commit indictable offence” which was suspended for 12 months. He was also sentenced to a probation period of 12 months for drug posession, fraud and property offences. A conviction was recorded with no further punishment for a “contravention of domestic violence order” offence.
On 23 February 2021, a delegate of the Minister decided not to exercise discretion under s 501CA(4) of the Migration Act to revoke the Cancellation Decision (G3/11). This is the Reviewable Decision currently before me.
On 25 February 2021, the Applicant lodged an application seeking a review of the Reviewable Decision in the General Division of this Tribunal (G2), within the nine-day period prescribed by s 500(6B) of the Migration Act.
However, on 18 May 2021, the Tribunal (differently constituted) affirmed the Reviewable Decision (R1/487).
On 30 November 2021 the Applicant sought judicial review of the Reviewable Decision in the Federal Court of Australia.
On 6 June 2023, the Federal Court granted the Applicant an extension of time and ordered that the decision of the Tribunal be quashed and that the matter be remitted to the Tribunal to be determined according to law (Trout v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 583 (Trout Federal Court).
The Applicant’s application for judicial review succeeded because the Court held that the Tribunal’s findings that the Applicant’s conduct involved “serious” family violence did not have a “logical, rational and intelligible justification”. This meant that the weight that the Tribunal gave to the family violence primary consideration was “out of proportion to the weight that could be attached to that factor in the proper exercise of the decision-maker’s power under s 501CA(4) of the [Migration] Act” (at [127]-[130]).
In approximately May 2023, the President of the Tribunal constituted me to hear and determine the remittal.
ISSUES
The issues that I need to determine are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if he does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
THE HEARING AND THE EVIDENCE
This application was heard in person on 5 and 6 December 2023.
The Applicant represented himself. The Respondent was represented by Mr M Hawker of Sparke Helmore Lawyers.
The Applicant gave evidence at the hearing in person on the first day of the hearing, as well as the Applicant’s friend, Matheus, who gave evidence by telephone.
I heard closing submissions on the second day.
I admitted the following documents into evidence at the hearing:
(a)Undated statement of Matheus (Exhibit A1).
(b)Two letters from Serco inviting the Applicant to a BBQ (Exhibit A2).
(c)Serco activity attendance records (Exhibit A3).
(d)Wikipedia information sheet on “Evans syndrome” (Exhibit A4).
(e)Bundle of course completion certificates (Exhibit A5) comprising:
(i)Drug and Alcohol Abuse 101 certificate dated 10 June 2023;
(ii)Anger Management 101 certificate dated 15 June 2023;
(iii)Stress Management certificate dated 16 June 2023;
(iv)Depression Management certificate dated 20 June 2023;
(v)Understanding Addictions certificate dated 15 August 2023;
(vi)Domestic Violence 101 certificate dated 30 August 2023; and
(vii)Positive Parenting techniques certificate issued 1 November 2023.
(f)Internet webpage: “Best Countries – Quality of Life” (Exhibit A6).
(g)Article titled “Fathers’ Importance in Adolescents’ Academic Achievement” (Exhibit A7).
(h)Internet news article titled, “Immigration minister orders changes to assessment for New Zealanders facing deportation dated 1 February 2023” (Exhibit A8).
(i)Photograph and bundle of screenshots (WhatsApp and call logs) (Exhibit A9).
(j)Letter from L&D Contracting dated 30 April 2021 (Exhibit A10).
(k)Applicant’s “Summary of Submissions” (Exhibit A11).
(l)Applicant’s submissions, “The Nature of Seriousness of the Conduct: A Deeper Insight” (Exhibit A12).
(m)Remittal Bundle, labelled 1-8, comprising 621 pages (Exhibit R1).
(n)Summons Bundle, labelled SB1, comprising 102 pages (Exhibit R2).
I also had before me the Respondent’s Statement of Facts, Issues and Contentions (SFIC) dated 14 September 2023 with an attached Annexure A: Table of the Applicant’s offences.
LEGISLATIVE FRAMEWORK
Migration Act
Subsection 501(3A) of the Migration Act provides that:
(3A)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:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); 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.
Subsection 501(6)(a) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(Original emphasis.)
Section 501CA of the Migration Act further provides, in part:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 99
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 23 January 2023, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 99) under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced the previous Direction No 90: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA made on 8 March 2021 (Direction No 90).
Paragraph 5.1 of Direction No 99 sets out “[o]bjectives”, with paragraphs 5.1(3) and (4) being relevant to the current application:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen 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. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
(4)The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of Direction No 99 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles are:
(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)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.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)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 noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in paragraph 5.2 of Direction No 99, when making a decision the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 99) must consider the primary considerations listed in paragraph 8 of Direction No 99, and the other considerations listed in paragraph 9 where relevant (see para 6 of Direction No 99).
Specifically, paragraph 8 of Direction No 99 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)       whether the conduct engaged in constituted family violence;
(3)       the strength, nature and duration of ties to Australia;
(4)       the best interests of minor children in Australia;
(5)       expectations of the Australian community.
Paragraph 9 of Direction No 99 lists other considerations to be considered as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)        legal consequences of the decision;
b)        extent of impediments if removed;
c)        impact on victims;
d)        impact on Australian business interests
Guidance as to how a decision-maker is to apply the considerations in
Direction No 99 can be found in paragraph 7, “[t]aking the relevant considerations into account”, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?

The Minister may revoke the Cancellation Decision if the Minister is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
The Applicant does not pass the character test due to the operation of s 501(6)(a) of the Migration Act because he has a “substantial criminal record” as defined by s 501(7) of the Migration Act, having been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
As I mentioned in the Background section above, on 27 April 2020, the Applicant was sentenced in the Brisbane Magistrates Court to numerous concurrent terms of imprisonment including 12 month concurrent terms of imprisonment for each of “enter premises with intent to commit indictable offence” (two counts) and “enter premises and commit indictable offence” (two counts).
When his Visa was cancelled he was serving a full-time custodial sentence of imprisonment (s 501(3A)(b) of the Migration Act), having been returned to custody on 10 September 2020 after reoffending in breach of his parole (G8/69).
Consequently, the Applicant fails the character test, and the statutory power to revoke will only be enlivened if there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
PRIMARY CONSIDERATIONS
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 99)
Paragraph 8.1(1) of Direction No 99 provides that:
(1)When considering protection of the Australian community, decision-makers should keep in mind 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. 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.
Paragraph 8.1(2) of Direction No 99 then provides:
(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 conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 99)
Paragraph 8.1.1(1) of Direction No 99 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii.crimes of a violent nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)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, , [sic] or an offence against section 197A 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 frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended 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).
h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant has two convictions from New Zealand that are of a relatively minor nature. He has a “Wilful Damage” conviction on 12 August 2003 for which he was fined $100 and ordered to pay court costs of $130 and reparation of $150. The other conviction is “breach liquor ban” for which the Applicant was fined $350 (R1/32).
The Applicant’s Australian criminal history shows that the first three times he appeared in Court no conviction was recorded. These were “possess utensils or pipes etc that had been used” for which he appeared in Court on 23 October 2018 and was made to pay $200 recognisance, had a good behaviour period of four months imposed, and “drug diversion” (G4/31). On 26 April 2019 he appeared in Court for “possessing dangerous drugs” and “possess utensils or pipes etc that had been used” and was fined $400. He then appeared in Court again on 22 May 2019 for “trespass – entering or remaining in dwelling or yard” for which he did not receive any further punishment. As no convictions were recorded, it would be appropriate to regard these as conduct, rather than offences. I also observe that they are of a relatively minor nature, and the Applicant had no previous criminal history in Australia, which is perhaps why no convictions were recorded.
The Applicant’s first convictions were recorded on 27 April 2020, when he was sentenced for 35 offences in the Brisbane Magistrates Court after he pleaded guilty (G6/34). The offences and sentences included (G4/29-30; G6/36):
·12 month concurrent terms of imprisonment for each of “enter premises with intent to commit indictable offence” (two counts) and “enter premises and commit indictable offence” (two counts).
·six month concurrent terms for four offences of “receiving tainted property”.
·a “contravention of domestic violence order” for which the Applicant was fined $400.
·“unauthorised dealing with shop goods” and “contravene direction or requirement” (two counts) for which the Applicant was convicted, but not further punished.
·three month concurrent sentences of imprisonment for 23 other offences that the sentencing Magistrate summarised as “offences in relation to possession of drugs, possession of drug utensils, possession of things for use in connection with the commission of drug offences, stealing, fraud, possessing property suspected of being stolen, possessing tainted property, trespass.”
The sentencing Magistrate observed that the offences took place between 28 March 2019 and 25 January 2020. The Magistrate described the Applicant as operating during this period “in a way that could be described as without any regard for the law at all” and “[c]ertainly, without any regard for the rights of other persons in the community, their property rights, and without any consideration to the impact of your offending on those persons” (R1/34).
The sentencing Magistrate broadly described the offences as follows (R1/34):
The offences include some quite serious property offences. Entering premises and committing indictable offences in the premises, for example, is a particularly serious property offence which carries as a maximum penalty, if I recall correctly, 14 years imprisonment. The other offences – most of the other offences carry as maximum penalties significant terms of imprisonment too.
Receiving tainted property, stealing, fraud all carry maximum terms of imprisonment of several years. Possessing dangerous drugs has a maximum penalty of 15 years imprisonment in the way that those charges have been laid in your case. A couple of the offences can be dealt with by way of fine only, contravening a direction or requirement of police, unauthorised dealing with shop goods.
The offence that perhaps stands out is an offence apart from the others, is the offence of contravening a domestic violence order. It can be met with a maximum penalty of three years imprisonment.
I discuss the “contravention of domestic violence order” offence below under the family violence primary consideration. That offence involved the Applicant sending his former partner, M a text message on 11 May 2019 which stated “don’t u fukn hurt him with u bullshit toward me coz that face said he is hurting I will fukn hurt u”. This was a contravention of a protection order granted on 8 February 2018.
The sentencing Magistrate referred to a sentencing schedule which outlined the facts of the other offences in more detail. Some examples are that the Applicant was found riding a stolen bicycle (R1/418), that he entered an apartment building and took a loose parcel from a communal bank of mailboxes (R1/420), was found by police to be in possession of 1.24 grams of methylamphetamine (R1/421), entered a storage shed in a secured carpark in a building complex, forced it open and stole a power tool, batteries and drill bits which he later pawned (R1/425), stole a designer t-shirt from a department store (R1/428), was found in possession of a glass pipe containing burnt residue, consistent with it having been used and a credit card stolen from a vehicle (R1/429-430), and that he broke into a secure bicycle storage facility and stole a bicycle and other items (R1/433).
On 11 December 2020, the Applicant was sentenced in the Brisbane Magistrates Court for 24 offences. He had committed the majority of these offences whilst on court-ordered parole. They included “enter premises and commit indictable offence” for which he was sentenced to one month imprisonment to be suspended for 12 months concurrent. There were also two other offences that he had committed prior to going into pre-sentence custody.
The convictions the Applicant committed whilst he was on court ordered parole were:
·12 “fraud – dishonestly gain benefit/ advantage” offences committed on 24 August 2020;
·six “fraud – dishonestly gain benefit/ advantage” offences committed on 23 August 2020;
·one “receiving tainted property” offence committed on 23 August 2020;
·one “possess property suspected of having been used in connection with the commission of a drug offence”; one “possess utensils or pipes etc that had been used” offence and one “possessing dangerous drugs” offence, committed on 5 August 2020.
The two offences committed prior to his going into pre-sentence custody were “contravention of domestic violence order” committed between 25 December 2019 and 6 January 2020 and “enter premises and commit indictable offence” committed on 9 January 2020.
The sentence the Applicant received on 11 December 2020 was one month imprisonment for “enter premises and commit indictable offence” which was suspended for 12 months, a probation period of 12 months for the drug, fraud and property offences, and a conviction recorded but no further punishment for the “contravention of domestic violence order” offence.
The “contravention of domestic violence order” offence involved the Applicant contravening a protection order by telephoning M on 25 December 2019 and texting her on 6 January 2020.The phone call and text messages were abusive and aggressive in nature because the Applicant felt aggrieved that he was not able to see his children. I outline the content of the phone and text message and discuss this offence in detail under the domestic violence primary consideration below.
The other offences that the Applicant was convicted of on 11 December 2020 included stealing an E-Bicycle that was locked in the basement of a carpark (R1/402), police finding the Applicant to be in possession of two used glass pipes and a clipseal bag containing 0.1 grams of a crystalline substance (R1/403), and making fraudulent transactions using a stolen credit card (R1/405).
One of the Applicant’s ACIC history documents that is before me refers to a charge of “contravention of domestic violence order (aggravated offence)” committed on 22 August 2020 that was mentioned in the Brisbane Magistrates Court on 16 September 2020 (R1/29). A Queensland Court Outcomes record states that he was convicted of this offence (R1/482). This offence resulted from the Applicant telephoning to wish his son a happy birthday and then texting M to blame her and her boyfriend for the protection order (R1/404). I discuss this text message in more detail below in the section on family violence. The Applicant was asked about this offence at the hearing and agreed that he made the phone call (transcript/56).
Direction No 99 provides that certain types of offending should be considered as “very serious” or “serious” (paras 8.1.1(1)(a) and (b) of Direction No 99). The Applicant has not committed any of the categories of crimes listed in para 8.1.1(1)(b) of Direction No 99. Additionally, he has not committed any violent crimes or crimes of a violent nature against women (paras 8.1.1(1)(a)(i) and (ii)). However, for reasons I explain below for the family violence primary consideration, he has engaged in conduct that would meet the broad definition of family violence (para 8.1.1(1)(a)(iii)). The conduct consisted of repeated derogatory taunts that were made to the Applicant’s former partner, M, although no actual violence was involved. I discuss the facts in more detail under the family violence primary consideration below. However paragraph 8.1.1(1) of this primary consideration states that they should be “viewed very seriously”.
The Applicant also committed four traffic infringements between 29 April 2015 and 19 September 2017, comprising two “exceed speed limit in speed zone by less than 13 km/h” and two “exceed speed limit in speed zone by at least 13 km/h not more 20 km/h” for which he received fines and lost demerit points (R1/476). Speeding infringements can be serious because it can put innocent road users at risk, but they were at the lesser end of the scale of seriousness for those offences, as evidenced by the Applicant not having to go to court and the penalties imposed.
The categories of offences that can be regarded as “serious” or “very serious” are not limited to the categories of offences set out in in paragraphs 8.1.1(1)(a) and (b) of Direction No 99. Those categories are not exhaustive and other offences can be serious or very serious. The Tribunal has previously recognised the serious nature of drug-related offending due to the harmful effects of drugs on the community (see, for example, Senior Member Cameron in SCJD and Minister for Home Affairs [2018] AATA 4020 at [81]–[83]). The Applicant has committed multiple drug-related offences that were associated with his personal use, including possessing dangerous drugs. Although these offences are at the lower end of the scale of seriousness, possessing and using dangerous drugs supports the illicit drug trade in our community and the crimes that are associated with it, such as property and stealing offences.
Many of the Applicant’s offences can be regarded as being of a less serious nature than, for example, offences that can cause physical harm such as violent offences. The Applicant’s offences I am referring to as being of a less serious nature include trespass and property offences, stealing, fraud (involving using stolen credit cards) and possessing stolen property.
The less serious nature of many of the Applicant’s offences is reflected in the sentences and fines that he received. These include fines, convictions being recorded with no further punishment, and being ordered to pay restitution. As I have outlined above, on 27 April 2020 he received several concurrent terms of imprisonment resulting in an effective 12 month sentence of custodial imprisonment. On 11 December 2020 he was sentenced to one month imprisonment suspended for 12 months. Although sentencing a person to a term of custodial imprisonment suggests that the offending is serious, those terms are relatively short which suggests that the Applicant’s offences should be placed in a category that is less than serious (para 8.1.1(1)(c) of Direction No 99).
The Applicant has been convicted of 56 criminal offences committed over a relatively short period of approximately 17 months. His offending history is fairly consistent in terms of the types of offences he committed during this period. Overall, I find that the Applicant’s offending is frequent and there is no trend of increasing seriousness, other than the repeated nature of some of his offending (para 8.1.1(1)(d) of Direction No 99).
The Applicant has committed a large number of offences, and many repeated offences, including offences committed while the Applicant was on parole which resulted in him being returned to custody. This would have placed a burden on the resources of police, corrective services, and the Courts. I find that there is likely to have been a minor cumulative effect (para 8.1.1(1)(e) of Direction No 99).
I am also required to consider whether the Applicant has provided false or misleading information to the Department of Home Affairs, including not disclosing prior criminal offending (para 8.1.1(1)(f) of Direction No 99). In incoming passenger cards dated 13 March 2010 and 18 April 2010, the Applicant ticked “no” in the box next to the question, “Do you have any criminal convictions?” (R1/74-75). At that time, the Applicant did not have any criminal convictions in Australia. However, he had the two convictions in New Zealand that I outlined above (R1/32). The Applicant explained that because he received a fine for the offences he did not realise they were convictions and so he admitted to ticking “no” on the cards (transcript/48). I accept the Applicant’s explanation. The Applicant made an error but did not deliberately provide false of misleading information. Consequently, I have not drawn any adverse inference from the Applicant’s incorrect declaration on his incoming passenger cards.
Paragraph 8.1.1(1)(g) of Direction No 99, requires me to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status. The Applicant has not received any such prior warnings.
Where the offence or conduct was committed in another country, paragraph 8.1.1(1)(h) of Direction No 99 requires me to consider whether that offence is an offence in Australia. I have already discussed the Applicant’s New Zealand offences above.
The Applicant has committed numerous and frequent offences that are mostly of a relatively minor nature. His drug possession offences are slightly more serious given the harm that can be caused to the Australian community by that type of offending (which I explain in more detail below when I discuss the nature of the harm). He has also engaged in conduct which would meet the definition of family violence by making repeated derogatory taunts to his former partner, M, which Direction No 99 states should be viewed very seriously. The less serious nature of the Applicant’s other offending is indicative from the lesser panalties that he received such as fines, restitution, convictions recorded without being further punished and the relatively short effective sentences of imprisonment of 12 months and three months that he received. There is no trend of increasing seriousness and a slight cumulative effect. The Applicant also made a mistake that was not deliberate in failing to record that he has criminal convictions on his incoming passenger cards.

When viewed overall, I find that paragraph 8.1.1 of Direction No 99, the nature and seriousness of the conduct, weighs moderately against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 99)
Paragraph 8.1.2(1) of Direction No 99 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.
Paragraph 8.1.2(2) of Direction No 99 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
Nature of the harm (para 8.1.2(2)(a) of Direction No 99)
Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should he engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 99).
The nature of the harm if the Applicant were to commit further drug offences is varied, however they are generally less serious than violent offences. Possessing drugs supports the illicit drug trade in the Australian community. The prevalence of drugs in the community causes harm to the community on many levels, including drug related crimes such as violence and theft, increases in property and health insurance premiums, as well as mental and other health issues for drug users, and the negative impact that this can have on their families.
The nature of harm if the Applicant were to commit further general offences (for example offences involving property such as tresspass, stealing and fraud offences) is varied and may include financial and psychological harm to members of the Australian community. The nature of harm that results from such offending is generally less serious than the harm which results from violent offences.
The Applicant has convictions for contravening domestic violence orders which involved him contacting his former partner, M. Whilst not as serious as offences involving physical violence, these types of offences can make victims fearful of their safety, and therefore such offending can have a negative psychological impact. Restraining orders are in place to protect the safety of those protected, and so breaching them can cause psychological and even physical harms to victims, depending on the nature of the breach.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 99)
Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (sub-paras 8.1.2(2)(b)(i) and (ii) of Direction No 99).
The Applicant is a 40-year-old man who, as I mentioned above, has been convicted of 56 criminal offences committed over a relatively short period of approximately 17 months. He reoffended again in August 2020 (approximately three months after being sentenced on 27 April 2020) by committing numerous offences whilst subject to parole supervision. As well as reoffending during that time in the community the Applicant returned two positive urinalysis tests (R1/72). This offending history suggests that the Applicant was not deterred from drug use and reoffending after his convictions and sentencing on 27 April 2020, nor by parole supervision. This history suggests a likelihood of future reoffending.
When the Applicant came to Australia in 2010 as a 26-year-old he led a law-abiding life (except for four speeding infringements) until approximately 2018. He obtained employment within one month of arriving and worked full-time (transcript/23-24). His relationship with his former-partner came under strain when both of his children experienced serious health issues. His son, K, suffered a medical episode after receiving an immunisation when he was six-months-old. K was later diagnosed with an auto-immune disease called “Evans Syndrome”. Over approximately a-year-and-a-half K had steroid medication and blood transfusions before going into remission (transcript/25). Around that time, the Applicant’s daughter H was born. When she was approximately one-and-a-half to two-years-old she started having what the Applicant referred to as “absent seizures”. The Applicant described the nature of K’s seizures as: “Her eyes were just rolled back in her head and she’s not there” (transcript/26). The Applicant and his former partner, M, apparently had difficulty having their daughter’s condition being taken seriously by medical staff. It was not until M wrote to their local member of parliament that an MRI was undertaken which found a benign cyst in H’s frontal lobe. The Applicant’s evidence was that the stress of coping with the two children’s medical conditions put a strain on his relationship which culminated in M leaving with the children towards the end of 2017. After he separated from M, he saw the children every second weekend, but towards the end of 2017 M stopped allowing him to see the children or have any contact with them. After he separated from M, the Applicant was also made redundant from his employment. M also commenced a relationship with the Applicant’s best friend, whom she later married. The Applicant’s evidence was that he started using methylamphetamine within several months of his separation from M to numb the pain of losing his partner, his job and not being able to see his children. He described only occasionally using methylamphetamine at the outset, but that his use developed to a daily habit (transcript/27-29). It is the Applicant’s methylamphetamine addiction that motivated his offending. This was acknowledged by the sentencing Judge on 27 April 2020 who observed: “The motivation for this offending, it seems, was your methylamphetamine addiction” (R1/35).
The Applicant is motivated not to resume drug use. He has not used drugs since August 2020 (transcript/105). He stated that, “the last thing I want to do is go down that path [of relapsing to drug use] because look at where it’s put me” (transcript/106). He realises that his drug use has resulted in him potentially being deported and not being able to mend his relationship with his children, hug them, kick a ball with his son or attend his daughter’s gymnastics competitions (transcript/106). There is no evidence that he has used drugs in prison or in immigration detention and there is no evidence of poor behaviour in prison or immigration detention. The Applicant’s children are a strong motivation for him. They are the reason he has not voluntarily returned to New Zealand. He has elected to remain in immigration detention for a further three years after his one year prison sentence so he can fight to remain in Australia to be with them. The Applicant also appears to have matured. He expressed a genuine willingness to work with his former partner M, to resume contact with his children at a pace and under conditions M feels comfortable with. The Applicant’s motivation not to resume drug use, his appreciation of the impact of his drug use on his relationship with his children and his desire to be personally involved in their upbringing is a strong motivator for him to abstain from drug use and not to reoffend.
If the Applicant is released into the Australian community he has confirmed employment with a friend, Matheus, who owns a business installing flooring. Matheus has also offered the Applicant accommodation for as long as the Applicant needs and wants. Matheus is aware that the Applicant was in prison for drug-related offending (transcript/80-81). Stable employment and accommodation are protective factors that are likely to motivate the Applicant not to resume drug use and not to reoffend.
Of concern, however, is that the Applicant has relatively few support persons in the Australian community. His friend, Matheus, has offered accommodation and employment, but most of the Applicant’s family are in New Zealand. Another friend, Mitchell, wrote a letter in support of the Applicant being able to stay in Australia in 2021 (R1/123). The Applicant plans to be employed, to resume contact with his children, to provide financial support to M and the children and to continue working on his fitness by going to the gym (transcript/32). He does not appear to have a clear relapse prevention plan including any plan to engage in counselling or other rehabilitation to assist him to abstain from drug use in the community. He did, however, express a willingness to seek help in the community if he needs it. In this regard, I note the Applicant’s evidence that he has been seeing a psychologist in immigration detention (transcript/37 and 69). Given that the Applicant has been in a structured environment for the last four years (one year in prison and three years in immigration detention), a plan incorporating rehabilitation would likely assist his reintegration into the Australian community and to not resume using drugs. Nevertheless, the plans that the Applicant has made are positive, make meaningful use of his time and are likely to be protective.
There is no expert medical evidence, nor evidence from rehabilitation facilitators, regarding the Applicant’s likelihood of reoffending. He did not complete any programs in prison because there were less courses being run due to the COVID-19 pandemic (transcript/30). When he first went into immigration detention there were restrictions on courses running due to the COVID-19 pandemic and so he started completing workbooks on stress management and anger management with other detainees and a welfare person, but was not able to complete all of the workbooks (R1/239 and 273). However, more recently he has completed several voluntary courses including (A5):
·Drug and Alcohol Abuse 101 for seven contact hours in June 2023.
·Anger Management 101 for five contact hours in June 2023.
·Stress Management for four contact hours in June 2023.
·Depression Management for five contact hours in June 2023.
·Understanding Addictions for 10 contact hours in August 2023.
·Domestic Violence 101 for eight contact hours in August 2023.
·Positive Parenting Techniques for five contact hours in November 2023.
The Respondent queried the timing of these certificates because Trout Federal Court was handed down on 6 June 2023. The Applicant was asked about this during cross examination. The Applicant’s answer was unclear, but it seemed to be that he knew completing courses would assist him in these proceedings, but that he also wanted to complete them to “get better” (transcript/69). Although these proceedings may have provided some motivation, the Applicant was in part motivated by a desire to change, which should be viewed positively. On the other hand, there are no reports from treatment facilitators that state any treatment gains the Applicant may have made as a result of completing them.
In summary, the following factors are not protective or suggest some likelihood of reoffending:
·The Applicant was convicted of 56 criminal offences committed over an 17 month period and was undeterred by a prison sentence and being on parole during which time he used drugs and reoffended.
·He had a daily methylamphetamine addiction, and his rehabilitation has not been tested in the community. The Applicant commenced using drugs to cope with significant stressors in his life (his separation from his partner and children, being made redundant, and his partner commencing a relationship with his best friend). If stressors arise in the future, there is a risk that he may relapse to drug use and reoffending.
·He has limited support persons in the community, with his immediate family members living in New Zealand.
·He does not have a comprehensive relapse prevention plan, including drug rehabilitation, in place.
The following factors are protective and may reduce the likelihood of the Applicant reoffending:
·Although the Applicant committed two minor offences in New Zealand, he lived in the community for approximately eight years when he first came to Australia without using drugs and offending. It was the stress of his separation, redundancy, being unable to see his children and his partner commencing a relationship with his best friend that triggered his drug use and his offending. Those were significant life stressors in a short space of time and the Applicant appears more mature and better able to cope with stressors in the future.
·The Applicant has not used drugs for approximately four years and is motivated not to resume methylamphetamine use, which was the main contributing factor in his offending. This period of abstinence may also assist him to stay drug free in the community, which may in turn reduce the likelihood of his reoffending.
·The Applicant has completed voluntary programs in immigration detention which shows a willingness and motivation to change, despite the timing of the programs coinciding with the Federal Court’s judgment. He is currently seeing a psychologist and is willing to seek help in the community if he requires it.
·The deterrent effect of the time the Applicant has spent in prison and immigration detention, comprising one year in prison and a further three years in immigration detention.
·The Applicant’s concerns about returning to New Zealand and being permanently separated from his children in Australia, and his desire to be an involved father in his children’s lives and to help financially support their mother, M.
·Confirmed stable accommodation and employment with his friend Matheus and a plan to engage in activities that make meaningful use of his time such as supporting M financially, seeing his children and focussing on his fitness.
Overall, after balancing the protective factors against those that suggest a likelihood of reoffending, I find that the Applicant is likely to be a moderate likelihood of reoffending.
Overall, after considering the nature of the harm that could result if the Applicant reoffended, and the low likelihood of the Applicant committing further offences, I find that paragraph 8.1.2 of Direction No 99, being the risk to the Australian community should the Applicant commit further offences, weighs moderately against the revocation of the Cancellation Decision.
Summary on para 8.1 of Direction No 99
I have found that paragraph 8.1.1 and paragraph 8.1.2 both weighed moderately against the revocation of the Cancellation Decision. Therefore, overall, I find that primary consideration 8.1, being the protection of the Australian community, weighs moderately against the revocation of the Cancellation Decision.
Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 99)
Paragraph 8.2 of Direction No 99 requires decision-makers to have regard to family violence committed by the non-citizen:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
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.
Family violence is defined in the interpretation section of Direction No 99 at para 4(1), which provides, in part:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a)           an assault; or
b)           a sexual assault or other sexually abusive behaviour; or
c)           stalking; or
d)           repeated derogatory taunts; or
e)           intentionally damaging or destroying property; or
f)            intentionally causing death or injury to an animal; or
g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
j)unlawfully depriving the family member, or any member of the family member's family, or his or her liberty.
The following definition, in paragraph 4(1) of Direction No 99 is relevant:
member of person’s family, for the purpose of the definition of the definition of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person.

Paragraph 8.2(2) of Direction No 99, stated above, sets out the circumstances where this primary consideration will be relevant. Firstly, it is relevant where the applicant has been convicted of an offence, has been found guilty, or has had charges proven that involve family violence (para 8.2(2)(a) of Direction No 99). It will also be relevant where there is some information or evidence from independent and authoritative sources indicating that the applicant has been involved in the perpetration of family violence (para 8.2(2)(b) of Direction No 99).
There is material before me alleging family violence conduct by the Applicant against his former partner, M, who is the mother of his two minor children. M can be considered as a member of the Applicant’s family because they had an intimate personal relationship (see definition of “member of the person’s family” in para 4(1) of Direction No 99).
In her application for the protection order on 10 November 2017, M stated that she was making the application for reasons including that the Applicant had threatened to stab her in the eye with a fork because he stood on a piece of food he dropped on the floor and accused her of putting it there (the Fork Incident). She stated that this happened in front of both children (R1/441 and 447). The Applicant’s evidence was he and M had an argument the night before, and he was stirring his coffee with a fork. At the hearing, the Applicant denied the part about accusing M of dropping food on the floor but recalled saying, “just shut up, I’ll throw the fork at your eye” and that he then walked out (transcript/52).
M also stated that the children saw her crying and came and sat on her lap. She stated that she told them she was sorry they saw their dad act that way and that she would never let them be scared again. She said that she locked herself in the bathroom and messaged “someone” to say she was frightened and they encouraged her to leave the house immediately. She described the Applicant as a “scary person” (R1/447).
M also stated that the Applicant threatened to smash her head through the windscreen of the car while she was driving with both children in the car and that he punched the car door and dash whilst yelling (R1/441 and 447). The Applicant denied that he had threatened M and denied that he had punched the car (transcript/53).
M stated in her application that in the months before she left, the Applicant had been “increasingly mean” to her, and would not let her speak without putting her down or yelling at her. The Applicant also disagreed with this (transcript/53). More generally, he said (transcript/72):
I’ve been mean to her. I’ve said bad things to her; I’ve upset her a lot over the last years.
M also stated that he was controlling of finances (R1/441 and 447). The Applicant denied controlling her finances. He said they had separate bank accounts, but he put “all the money” into her account every week because she paid all the bills (transcript/62).
M’s application for a protection order was granted on 8 February 2018 and included the children. It was in force until 8 February 2023 (R1/463). M applied to vary the order to add a no contact clause and to include her new partner on 10 January 2020. The variation was sought on the basis that the Applicant refused to see the children at a supervised contact centre and then sent her abusive messages claiming she was preventing him from seeing them. She also said he was abusive on a phone call with their son towards her (R1/466). In the documents following the variation request there are copies of text messages, some of which do not contain dates. They appear to be part of the variation application and are abusive text messages from the Applicant directed towards M because he wants to see his children. One of the texts contains the statement, “… keep fuckin pushing me!!” which could be perceived as a threat (R1/469-473). An abusive text message sent on 6 January 2020 was the basis for a contravention of the protection order which the Applicant was convicted of on 11 December 2020, which I discuss below. A variation was granted on 27 April 2020 (R1/474).
As I mentioned above, the Applicant denied threatening to smash M’s head through the windscreen of the car and punching the car whilst yelling and denied controlling her finances. Despite the existence of the protection orders, and noting that it is an ex-parte application based on the evidence of M, I am not satisfied the allegations made by M are sufficiently independent and authoritative sources from which I can be satisfied that the Applicant engaged in family violence conduct (para 8.2(2)(b) of Direction No 99). They are allegations made by M in the context of a family breakdown, and are not otherwise corroborated. M was not available to give evidence or for cross-examination about these allegations, whereas the Applicant was. However, the Applicant did admit to making a statement about the fork that could have been construed as a threat. Paragraph 4(1) of the Direction contemplates “repeated derogatory taunts” as behaviour that may constitute family violence. Thus, coupled with other derogatory taunts which I discuss below, the Fork Incident is likely fall within the broad definition of family violence.
The Applicant has been convicted of contravening domestic violence orders.
On 27 April 2020, the Applicant was sentenced for 35 offences, including “contravention of domestic violence order” on 11 May 2019 by sending M a text message which stated “don’t u fukn hurt him with u bullshit toward me coz that face said he is hurting I will fukn hurt you”. The text was sent after an incident where the Applicant and M had arranged to meet for a supervised visit at a shopping centre. The Applicant arrived late and took the children to McDonalds and then out of the view of M who confronted him about it. This was a contravention of the protection order granted on 8 February 2018 (G4/31; G6/34; R1/413).
On 11 December 2020, the Applicant was again convicted of “contravention of domestic violence order” (G4/25). The Applicant had contravened the order by telephoning M on 25 December 2019 and texting her on 6 January 2020. The sentencing schedule which describes the contraventions states that (R1/401; see also R1/469):
On the 25^th December 2019 the respondent has called the aggrieved, verbally abused her, used profound language and has called her names including “You’re a fucking dog”
On the 6^th of January 2020 the respondent sent the aggrieved a text message saying:
“U know I really would like to C my kids an talk to them how are U so fucking bitter an cold. What part of Ur fukd up head thinks wat Ur doing is ok!!! I’ve fucking destroyed myself to fucking cover up the pain an hurt that U taking my 2 young kids an basically fukin baring me from knowing them because U got a problem with me An fuking [name of M’s new partner omitted]. U went thru something similar didn’t u, talk fukin sence to her U fukin weak kunt. Fuck use both all I’ve wanted is to be part of there lives I should never of stopped now it’s pretty much gonna be to late fukin hate use for hurting me an my kids by stopping us knowing each other putrid fukin scum use both r”
As I mentioned under the first primary consideration above, the Applicant was charged with “contravention of domestic violence order (aggravated offence)” committed on 22 August 2020 (R1/29) and a conviction was recorded by the Court (R1/482). The Applicant agreed that he had committed this offence at the hearing (transcript/56). The sentencing schedule states that this offence resulted from the Applicant telephoning to wish his son a happy birthday. It records that M had given the phone to their son and the Applicant had a conversation with him before hanging up. It records that shortly after the conversation the Applicant sent M a text message making derogatory comments about the aggrieved [M] and her boyfriend and blaming them for the current protection order in place. It recorded that the Applicant had stated at the end of this text (R1/404):
There you go. This will breach the dvo an that will breach my parole rtp warrant finish my sentence in jail then immigration. I just made it easy for you. Welcome.
I now turn to whether this conduct meets the definition of family violence. As I mentioned above, M can be considered to be a member of the Applicant’s family for the purpose of the definition of family violence (s 4(1) of Direction No 99). On the facts above, M does not appear to have been coerced or controlled by the Applicant’s conduct. However, taking out the protection order suggests that she was fearful. As I mentioned above, M also applied for a variation order on 10 January 2020 asking for a no contact clause and for her partner to be included (R1/465-468). Her reason for seeking the variation were:
Refuses to see children at a supervised contact centre and sends me abusive messages claiming I stop him seeing them. Also abusive on a phone call with son toward me.
In the form she also stated she wished for a temporary protection order to be made and the reason included, “I am concerned his anger is increasing coming closer to sentencing” (R1/467). This also suggests that M was fearful.
Further, the definition of family violence refers to “repeated derogatory taunts” as being examples of behaviour that may constitute family violence (para 4(1)(d) of Direction No 99). The Applicant’s behaviour occurred on approximately five occasions (including the Fork Incident) and could therefore be considered to be “repeated derogatory taunts”. Also, when asked at the hearing about these December 2019 and January 2020 contraventions, the Applicant agreed that this behaviour had continued towards M for a long period of time (transcript/65), although he later stated that he could not recall exactly what he had done (transcript/66). In this regard, there can be said to be a frequency to the Applicant’s behaviour (para 8.2(3)(a) of Direction No 99).
Based on the above analysis, the Applicant’s conduct meets the broad definition of family violence.
The text message sent on 11 May 2019 contains a threat from the Applicant to hurt M, and could be characterised as a “derogatory taunt” that meets the definition of family violence. The telephone call on 25 December 2019 and text on 6 January 2020 are aggressive and abusive. However, I agree with Feutril J’s characterisation of these messages when His Honour stated (Trout Federal Court at [122]), “these communications do not contain any threats and it is not obvious that they would cause the applicant’s former partner to be fearful”. There is no evidence that the Applicant telephoning his son to wish him a happy birthday on 22 August 2020, and the subsequent text, coerced or controlled M or would have made M feel fearful. In contrast, the sentencing schedule suggests she answered the phone and allowed her son to speak to the Applicant. His subsequent text to M was less aggressive than his previous phone call and text but could be characterised as a taunt that M would likely enjoy his breaching the protection order. I therefore find that those messages do not meet the definition of family violence.
With respect to the Applicant’s offending and conduct that does meet the definition of family violence, there does not seem to have been a trend of increasing seriousness and whether there was any cumulative effect is unclear (para 8.2(3)(a) and (b) of Direction No 99).
The Applicant did not attempt to deny or minimise the conduct associated with these family violence related convictions. Those convictions were from contraventions involving the Applicant phoning and texting M. The Fork Incident appears to have been witnessed by the children. The Applicant has also undertaken a voluntary Anger Management 101 course consisting of five contact hours, which was completed in June 2023. He also completed Stress Management, a four hour course in June 2023, and Domestic Violence 101, an eight contact hour course in August 2023 (A5). I note that the source of the Applicant’s anger towards M was his inability to see his children. At the hearing, the Applicant showed insight into his behaviour and appeared genuinely willing to work with M “at her pace”. He expressed a willingness to have supervised or unsupervised access visits with the children and to see them as often as M is comfortable with (transcript/75) (para 8.2(3)(c)(i)-(iii) of Direction No 99).
The Applicant has not received any formal warnings about the consequences of further acts of family violence (para 8.2(3)(d) of Direction No 99).
After balancing the above considerations, I find that this primary consideration weighs slightly against the revocation of the Cancellation Decision.
The strength, nature and duration of ties to Australia (paras 8(3) and 8.3 of Direction No 99)
Paragraph 8.3(1) of Direction No 99 provides that:
(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.
Paragraphs 8.3(2) and (3) of Direction No 99 direct decision-makers to consider the non-citizen’s ties to any children, and the strength, duration, and nature of any family or social links to members of the Australian community who are citizens, permanent residents or who have an indefinite right to remain in Australia:
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
Further, in paragraph 8.3(4) of Direction No 99, decision-makers are required to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. Specifically:
(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)The length of time the non-citizen has resided in the Australian community, noting that:
i.      considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.     more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.    less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant has two minor children, an 11-year-old son, K, and a nine-year-old daughter, H. Their interests are considered under the primary consideration of the best interests of minor children. However, with respect to this primary consideration, the Applicant’s children, are indicative of strong ties to the Australian community and I therefore give significant weight to those relationships (para 8.3(2) of Direction No 99).
The Applicant’s former partner M, is also in Australia. After their separation, they were estranged, but his evidence at the hearing was that they are now communicating about the children. M did not provide a statement in these proceedings, or in the previous Tribunal proceedings, and so it is difficult to assess the impact of my decision on her. The Applicant’s evidence was that it was “hard to know” how her interests would be affected if he was returned to New Zealand, but he thought that if he remained in Australia he could assist her financially and could also give her a break by helping to look after the children. M has the care of her two children with the Applicant. She also has another child with her subsequent partner (transcript/34) who she has now separated from. It is likely that M may suffer some practical and financial detriment if the Applicant is returned to New Zealand.
The Applicant also stated that he has a cousin who lives in Australia, although they are not close and he does not speak to his cousin. The Applicant does not have any other family members living in Australia (transcript/36; G7/62).
A friend of the Applicant’s, Mitchell, wrote an email in support of his being able to stay in Australia dated 28 April 2021 (R1/123). He did not state how he would be impacted if the Applicant was unable to remain in Australia, but his friendship is a tie to the Australian community.
Another friend of the Applicant’s, Matheus, wrote a statement in support of the Applicant being able to stay in Australia (A1), and also gave evidence at the hearing. Matheus met the Applicant when they were both working on a construction site approximately six or seven years ago. Matheus did not state how he would be impacted if the Applicant was unable to remain in Australia, but he is willing to offer the Applicant accommodation at his home and employment in a flooring company he owns with another friend. This friendship is also another tie to Australia.
The Applicant has been a resident in Australia for 14 years, having arrived as a 26-year-old adult. Consequently, the Applicant was not a resident in Australia during his formative years, which would attract considerable weight, but he has been a resident in Australia for a lengthy amount of time (para 8.3(4)(a)(i) of Direction No 99).
The Applicant has made a positive contribution to the Australian community through fairly continuous employment (G7/65) (para 8.3(4)(a)(ii) of Direction No 99).
Whist the Applicant was not a resident in Australia during his formative years, he did not start offending soon after arriving in Australia (para 8.3(4)(a)(iii) of Direction No 99). He appeared in Court on 23 October 2018 for “possess utensils or pipes etc that had been used” on 2 October 2018, approximately eight years after arriving in Australia, but no conviction was recorded. His first convictions were recorded by the Brisbane Magistrates Court on 27 April 2020, nearly 10 years after the Applicant arrived in Australia. Therefore, I do not think that this factor should diminish the weight to be given to the Applicant’s time in Australia.
Most of the Applicant’s family reside in New Zealand. He only has a cousin he does not speak to, his former partner M, and two friends in Australia. M may suffer some practical and financial detriment if the Applicant is removed from Australia. The Applicant does have two minor children in Australia, which is a strong tie, and which Direction No 99 says should be given more weight. The Applicant has been a resident in Australia for 14 years and although he did not spend his formative years in Australia, that is still a significant amount of time. He has also made some positive contributions through employment. On balance, I find that the strength, nature, and duration of the Applicant’s ties to Australia weighs moderately in favour of revocation of the Cancellation Decision.
Best interests of minor children in Australia affected by the decision (paras 8(4) and 8.4 of Direction No 99)
Paragraph 8(4) of Direction No 99 states that in making a decision under s 501CA(4), “the best interests of minor children in Australia” is a primary consideration.
Direction No 99 states that decision-makers must determine whether the decision under review is, or is not, in the interests of a child affected by the decision. The first three paragraphs of 8.4 provide:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

Paragraph 8.4(4) of Direction No 99 sets out the factors that the decision-maker must consider where relevant:
(4) In considering the best interests of the child, the following factors must be considered where relevant:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has two children (with his former partner, M) whose interests will be affected by my decision.
They are an 11-year-old son, K (born in 2012), and a nine-year-old daughter, H (born in 2014).
I will provide a brief overview of the evidence concerning the children, before considering their interests together, whilst pointing out where their interests differ.
The Applicant’s evidence was that his former-partner, M, left him, and took the children with her, in July 2017 (transcript/49). H was approximately three or four years old and K was approximately five-years-old (transcript/27). The relationship had deteriorated due to significant stress caused by the children both suffering from health conditions (transcript/50).
The Applicant’s son, K, has a condition known as “Evans Syndrome”. The condition affects the immune system, and K became seriously ill after having an immunisation when he was six months old. There is no medical evidence before me about the condition. The Applicant submitted a Wikipedia definition of the syndrome (A4). The Applicant’s understanding was that K’s immune system would attack his red blood cells. He said that for a year and a half K had blood transfusions, heavy doses of steroids, and immune suppressants to “stop his [K’s] immune system from basically killing him”. He believes K’s condition then went into remission. The Applicant’s understanding was that K still has regular medical checks (transcript/25-26).
According to the Applicant, at about the time K went into remission, H was born. The Applicant stated that H started to have seizures when she was approximately one-and-a-half to two-years-old, resulting in an ambulance being called half a dozen times. He described difficulty in getting ambulance officers to take H’s condition seriously because her seizures took the form of H’s eyes rolling back in her head and her not being conscious of her surroundings. After contacting a local member of Parliament, an MRI was conducted on H which found a cyst behind her frontal lobe. The Applicant’s understanding is that the cyst is benign and that H “seems healthy and well” (transcript/26-27 and 35).
As I have mentioned, there is no medical evidence, such as letters from treating practitioners, about the children’s health conditions, and so it is difficult to assess how they are currently impacted by their health conditions. The Applicant stated that when he asks M about how the children are, and how their health is, she states they are “good” and that M does not give him a lot of detail unless something goes wrong (transcript/35).
The Applicant’s evidence was that after he separated from M, he saw the children every second weekend, but that towards the end of 2017 M stopped allowing him access to the children (transcript/29). He resumed contact with the children in late 2021 when he went into immigration detention. He sent M a message and asked if he could speak with the children and he started speaking to them every three weeks. The Applicant now has the children’s telephone numbers and speaks to them approximately twice a week. He described his relationship with M as “getting better” and said that they mainly communicate about the children (transcript/33-34). The Applicant stated that his daughter is “really sporty” and shows him her gymnastics and doing burpees and push ups on phone video calls. The Applicant said that his son loves soccer and says he is looking forward to kicking the ball with his father (transcript/33).
As I discussed in the section on family violence conduct above, the Applicant denied threatening M in the car, yelling at her and punching the car when the children were present. However, the evidence suggests that the children were present during the Fork Incident which met the definition of family violence (in combination with other incidents where the Applicant made derogatory taunts to M).
In her application for the protection order, M also relevantly stated:
·The Applicant had called his son a “faggot” and has asked his son for money;
·The Applicant would call her a “bitch” and told one of the children it was her fault they had no dad; and
·The children became angry and upset after having phone calls with the Applicant (R1/442).
The Applicant strongly denied calling his son a “faggot”. He said that he never spoke about money on the phone, but that when he had seen K he asked if his mum had money because he was going to put money in K’s bag to give to her (transcript/62). The Applicant’s evidence was that he never tried to upset his children and he did not remember his children getting upset with him (transcript/61). He stated that he would never make derogatory comments about their mother to the children (transcript/63). The Applicant said that he was not on drugs during this time (transcript/63). He started taking drugs later after he did not have contact with the children.
The Applicant agreed with a summary provided by M where he told one of the children that he was not his dad anymore on approximately 1 January 2018. M had stated that the child became upset and cried. She attached copies of an email trail between herself and the Applicant regarding this incident in her protection order application (R1/448).
The evidence tends to suggest that the children witnessed arguments between their parents, including the Fork Incident. It also appears that the Applicant became increasingly frustrated when he could not see his children, and that he directed his frustration at M, as shown in the email trail. The email trail also tends to suggest he did tell one of his children he was no longer their dad, which was likely to have caused the child to become upset. The Applicant otherwise denied threatening M in front of the children and punching the car. M did not give a statement or evidence and could not be cross-examined. I therefore accept the Applicant’s recollection of events.
M now has another child from the relationship with the partner she had after the Applicant, who was formerly the Applicant’s best friend. She has now separated from that partner. The Applicant understood that this was because the partner was not treating his children very well. The Applicant described M as “a good mum” (transcript/35).
Based on the Applicant’s evidence, the children do not seem to understand the Applicant’s situation. He said that when he first reconnected with the children they asked if he was going back to New Zealand and that he told them he was not. He said they now think he is in jail because he does not want them to be under more stress. He said the children ask when he is coming home and talk about what they want to do when he gets out (transcript/35). K enjoys playing soccer and wants to kick the ball with the Applicant. The Applicant said he knows K would be “so upset” if he was returned to New Zealand. The Applicant also described being particularly close to his daughter and that she was his “little princess”. He said that if she hurt herself she would always come to the Applicant instead of her mother (transcript/36).
The Applicant does not think that M would move back to New Zealand with the children if he was sent back there, and he does not think M would bring the children to visit him (transcript/36).
My impression of the Applicant is that he is a loving father. He struggled being separated from his wife and not being able to see his children. His primary reason for fighting to stay in Australia, and staying in immigration detention for the last three years, is to be able to stay in Australia with his children (transcript/37, 57). He stated that he wants to be there for his children and that he is willing to work with M so he can see the children as often as she is comfortable with (transcript/57).
The relationship is parental because the Applicant is the children’s father. Although there was a period where the Applicant did not have contact with the children due to the operation of the protection order, he has now resumed phone contact with them and speaks to them regularly. He interacts with them about their interests including soccer for K and gymnastics with H (para 8.4(4)(a) of Direction No 99).
There are approximately 7 years until K turns 18, and nine years until H turns 18. Thus the children have all of their teenage years ahead of them. This is a substantial amount of time during their formative years. The evidence before me suggests that the Applicant is a loving father who would be involved in his children’s daily lives as much as their mother would permit. As I have mentioned, his primary reason for fighting deportation, including an appeal which has resulted in his being in immigration detention for three years, is his children. If the Applicant can abstain from drug use, he is likely to play a positive parental role in the future. In this regard I note that he has undertaken a voluntary Positive Parenting Techniques course, consisting of five contact hours in November 2023 (A5) (para 8.4(4)(b) of Direction No 99).
There is some evidence that the Applicant upset one of his children by telling them he was not his dad anymore and that the Applicant and his former partner argued in front of the children. The Fork Incident also occurred in front of the children. However, there is otherwise no evidence to suggest any negative impact of this conduct on K or H. If the Applicant is released into the Australian community, reconnects with the children, resumes drug use, and reoffends, it is likely to have a negative impact on K and H who will face further instability and separation from their father (para 8.4(4)(c) of Direction No 99).
The Applicant has been communicating with the children by telephone and video call, and he could continue to do so if he was returned to New Zealand. His evidence was that M and the children would not relocate to New Zealand with him if he is deported, and M is unlikely to bring the children to visit him. The evidence is that the children want their father to be involved in their hobbies. The Applicant’s daughter shows him her gymnastics on video call and his son wants him to kick the soccer ball with him. The Applicant would not be able to be personally involved in the children’s lives if he was returned to New Zealand. Maintaining contact by video call or phone is likely to be a poor substitute for the children having their father physically present and involved in their lives. I am also concerned that the children have had serious health issues in the past. If those health issues were to become problematic in the future, the children would benefit from having two parents to care for them. Now that the children have reconnected with their father and are looking forward to seeing him, they are likely to suffer emotional detriment if he is returned to New Zealand, as well as practical detriment because they only have one parent to care for them (para 8.4(4)(d) of Direction No 99).
The children are cared for by their mother whom the Applicant says is a good mother. She is now separated from the children’s stepfather, and they now have a younger sibling by this relationship. There is no evidence of any father figure in their lives, or of anyone else who assists with their care (para 8.4(4)(e) of Direction No 99).
There is no direct evidence about the children’s views. I accept the Applicant’s evidence, which was not challenged, that the children ask when he is coming home (para 8.4(4)(f) of Direction No 99).
The Respondent submitted that if M had something positive to say about the Applicant, she would have provided a statement, particularly given he has been in contact with the children since February 2023 (transcript/98). The Applicant’s evidence was that he asked her for a statement to use in these proceedings, and she was going to think about it. He said he did not want to pressure her because he had put himself in this situation and did not want to keep asking her. He mentioned that M was busy and that she was working and caring for three children by herself (transcript/71). There could be many reasons why M did not provide the Applicant with a statement. I do not think it is logical for me to infer in the circumstances that M not providing a statement demonstrates she had nothing to say in support of the Applicant.
I am not of the view that the children are at risk of any family violence from the Applicant. He has never been violent towards them. There is no evidence that they have been abused or neglected by the Applicant. He may have spoken to the children in a manner in the past that he regrets, specifically telling one of the children he was not his dad anymore. The children have also been present during arguments with their parents, including the Fork Incident. Overall, the evidence suggests that the Applicant is a loving and caring father who is fighting to stay in Australia so that he can be a good father to his children (para 8.4(4)(g) of Direction No 99).
There is no direct evidence that the children have experienced any physical or emotional trauma from the Applicant’s conduct, other than the stress they may be experiencing from being separated from their father and thinking their father is in prison (para 8.4(4)(h) of Direction No 99).
In summary, the relationship is parental, the children have resumed contact with the Applicant, there is a lengthy time until they both turn 18 (including their formative teenage years) and they only have their mother to care for them. They have had serious health issues in the past and the future impact of those issues is unknown. They are active children who would benefit from the Applicant being personally involved in their lives and they are likely to suffer emotional and practical detriment if the Applicant is deported.
On balance, I find that the revocation of the Cancellation Decision is in the best interests of the Applicant’s son, K, and daughter H. I find that their interests both weigh strongly in favour of the revocation of the Cancellation Decision.
Expectations of the Australian community (paras 8(5) and 8.5 of Direction No 99)
A decision-maker must consider the expectations of the Australian community when making a decision under ss 501 or 501CA.
These expectations are set out in paragraph 8.5 of Direction No 99, which provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2)In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a) acts of family violence; or
b)    causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d)    commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e)    involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f)     worker exploitation.
(3)The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community's expectations in the particular case.
I must give effect to the “norm” stipulated in paragraph 8.5(1) of Direction No 99, being that the Australian community expects non-citizens to obey Australian laws whilst in Australia. This will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future. As demonstrated by his criminal history, the Applicant has breached this expectation by not obeying Australian laws. Consequently, the expectation of the Australian community would be that the Applicant’s Visa should remain cancelled (para 8.5(1) of Direction No 99).
As is evident from the reference to the “norm” in paragraph 8.5(1) of Direction No 99, I am being told unequivocally what the community’s expectations are. Further, paragraph 8.5(4) of Direction No 99 confirms more explicitly that the Australian community’s expectations are what the Government deems them to be, because decision-makers are directed to proceed based on the Government’s views about community expectations without independently assessing them (see Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68 at [41]-[44]).
I agree with the observations of Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143, which were adopted by Deputy President Boyle in Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208 (Wightman).
I note that Deputy President Boyle was writing about the previous Direction No 90, however the wording in Direction No 99 is identical in this regard, and therefore those observations apply equally to Direction No 99.

In Wightman, Deputy President Boyle stated, at [85]–[86]:
… Direction 90 superseded Direction 79 on 15 April 2021. Senior Member Morris in NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (NTTH) at [194] noted that the provisions of Direction 90 contain generally similar wording to the corresponding provisions in Ministerial Direction No 65 (Direction 65), the predecessor to Direction 79. Those corresponding provisions in Direction 65 were considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs (FYBR).
Senior Member Morris at [195] and [196] of NTTH summarises the view expressed by the Full Court in FYBR and the adoption of some of the language of the judgment in FYBR into Direction 90 as follows:
195.It was the Court’s view that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed — they are what the executive government has declared are its views, not what a decision-maker may derive by some other assessment or process of evaluation.
196.It is significant that the new Direction imports the statement that the expectations of the Australian community are to be considered as a ‘norm’, which I take to be an acknowledgement of the approach taken by the plurality of the Court in FYBR. ...
(Original emphasis and footnotes omitted.)
Further detail about the Australian community’s expectations with respect to certain types of conduct is given in paragraph 8.5(2) of Direction No 99. That paragraph states that the Australian community expects that the Australian Government should cancel a non-citizen’s visa if they raise serious character concerns through specific conduct listed in sub-paragraphs 8.5(2)(a)–(f), including “acts of family violence” (8.5(2)(a)). The Applicant has engaged in conduct that meets the broad definition of family violence, although those offences did not involve any actual violence and consisted of repeated verbal derogatory taunts.
Paragraph 8.5(3) of Direction No 99 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Further, paragraph 8.5(4) of Direction No 99 tells decision-makers that this consideration is about the expectations of the Australian community as a whole. It directs decision-makers to proceed based on the Government’s articulated views without assessing the community’s expectations in the particular case. I therefore cannot speculate about what the community’s views might be about the Applicant.
I therefore find that the primary consideration in paragraph 8.5 of Direction No 99, being the expectations of the Australian community, weighs moderately against the revocation of the Cancellation Decision.
OTHER CONSIDERATIONS (PARA 9(1) OF DIRECTION NO 99)
As I outlined above, Direction No 99 directs decision-makers to have regard to a non-exhaustive list of several other considerations to the extent they are applicable.
Legal consequences of decision under section 501 or 501CA (para 9(1)(a) and 9.1 of Direction No 99)
Paragraph 9.1 of Direction No 99 identifies the legal consequences that decision-makers must bear in mind when making a decision under ss 501 or 501CA of the Migration Act.
The first sub-paragraph, 9.1(1), of Direction No 99, outlines that an unlawful non-citizen is liable for removal from Australia, notwithstanding any non-refoulement obligations:
(1)Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
In other words, if I affirm the Reviewable Decision, the Applicant will likely be removed to New Zealand as soon as is reasonably practicable and he will remain in immigration detention until he is removed.
Further, if he is removed to New Zealand, it is likely that the Applicant will face a range of restrictions which would make it unlikely that he would meet the criteria under the Migration Act for a visa to enable him to re-enter Australia (for a comprehensive overview with respect to Special Category (subclass 444) visas, see Senior Member Burford in Moli and Minister for Immigration, Citizenship and Multicultural Affairs [2023] AATA 666 at [167]-[169]).
The next two sub-paragraphs of Direction No 99, 9.1(2) and (3), address Australia’s non-refoulement obligations:
(2)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3)International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
As contemplated by sub-paragraph 9.1(3) of Direction No 99, the Applicant has not raised any non-refoulement obligations, nor do they arise from the Applicant’s circumstances or on any of the materials before me.
The Applicant’s removal would be a consequence of the operation of Australia’s migration laws, and as there are no non-refoulement considerations that would apply to the Applicant, I give this consideration neutral weight.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 99)
Paragraph 9.2(1) of Direction No 99 provides:
(1)Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen’s age and health;
b) whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
The Applicant is 40 years of age.
In his personal circumstances form the Applicant ticked the box marked “no” in answer to the question “Do you have any diagnosed medical or psychological conditions?” (G7/65). His evidence at the hearing was that he is in good physical health and feels better than he has ever felt. He regularly works out at the gym. He stated that he has been seeing a psychologist in immigration detention because he “struggled with seeing somebody die” in immigration detention (transcript/37 and 69).
If the Applicant is returned to New Zealand and does need assistance with his mental health, he is likely to be able to access some assistance in New Zealand. In a general sense, he will have access to the same social, medical, and economic supports as other citizens of New Zealand, which are equivalent to those available in Australia (Webb v Minister for Home Affairs [2020] FCA 831 at [98]; Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [68]-[69]).
The Applicant has lived in Australia for the last 14 years, since he was 26-years-old. There are unlikely to be any language or cultural barriers if he were to return to New Zealand, but it may be difficult for him to adjust to life in New Zealand after living in Australia for a lengthy amount of time. The Applicant has travelled back to New Zealand in 2010 and 2011 and so it is not an unfamiliar country (G11/76).
The Applicant is likely to face emotional detriment if he was returned because he would be separated from his two Australian citizen children and would not be able to return to Australia if, for example, they experienced any health issues (and I note they have both had significant health issues in the past) or for any significant life events.
The Applicant’s mother, father (who has had some health issues) and two sisters live in New Zealand. His evidence was that he does not speak to his youngest sister, S. He has another sister, N, who is married with two children. The Applicant’s evidence was that he was not close to N and he did not speak to her very often. They last spoke approximately a year ago. The Applicant’s evidence was that he talks to his parents every one to two months. His evidence was that he no longer has any friends in New Zealand (transcript/22-23). There is an email dated 18 April 2021 from the Applicant’s mother in the materials in support of him being able to stay in Australia (R1/122). In that email she states that the Applicant has phoned her many times “almost crying” because he could not speak to his children. This suggests to me that has sought emotional support from his mother in the past and that she may be able to offer him any emotional or social support if he was returned to New Zealand.
The Applicant spent his formative years in New Zealand. He left school when he was 15 and started working operating machinery (transcript/21). He worked as a heavy machinery operator and has good references from two previous employers in New Zealand (R1/124-125). However, his status as a returnee with a criminal record may make it more difficult for him to find work and to support himself.
I find that there are some impediments to the Applicant being able to establish himself and maintain basic living standards if he was returned to New Zealand but they are not insurmountable.
Consequently, I find that this consideration weighs slightly in favour of the revocation of the Cancellation Decision.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 99)
Paragraph 9.3(1) of Direction No 99 provides that:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no information before me regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations), or on the Applicant’s former-partner M who was a victim of the Applicant’s “contravention of domestic violence order” offences and other conduct in the form of repeated derogatory taunts that met the definition of family violence, or any victims of the Applicant’s other offences (such as his fraud and stolen property offences).
Consequently, this other consideration should be given neutral weight.
Impact on Australian business interests (paras 9(1)(d) and 9.4 of Direction No 99)
Paragraph 9.4(1) of Direction No 99 states that decision-makers should consider the impact of a decision whereby the Applicant is not allowed to remain in Australia on any business interests. It provides:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
In his evidence the Applicant stated that he had worked on large infrastructure projects in Brisbane including building tunnels, mine sites, roads and apartment buildings (transcript/77-78). Despite having worked on these projects in the past, there is no evidence that the delivery of a major project or delivery of an important service would be compromised if the Applicant is not permitted to remain in Australia.
I therefore give this consideration neutral weight.
THE WEIGHING EXERCISE
The Applicant does not pass the character test under s 501 of the Migration Act.
I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 99.
For the reasons set out above, I made the following findings about the relevant primary considerations in Direction No 99. These were:
·The protection of the Australian community from criminal or other serious conduct primary consideration weighed moderately against the revocation of the Cancellation Decision.
·The family violence primary consideration weighed slightly against the revocation of the Cancellation Decision.
·The strength, nature, and duration of the Applicant’s ties to Australia weighed moderately in favour of the revocation of the Cancellation Decision.
·The best interests of the Applicant’s 11-year-old son, K, and a nine-year-old daughter, H, weighed strongly in favour of the revocation of the Cancellation Decision.
·The expectations of the Australian community weighed moderately against the revocation of the Cancellation Decision.
I made the following findings with respect to the other considerations that were relevant. These were:
·I gave neutral weight to the other consideration of the legal consequences of the decision.
·The extent of impediments if removed other consideration weighed slightly in favour of revocation of the Cancellation Decision.
·The other considerations regarding the impact on victims and impact on Australian business interests were also given neutral weight.
I have weighed the primary and other considerations against each other and after doing so, I am of the view that the expectations of the Australian community, when weighed against the remaining primary and other considerations, particularly when compared to the first primary consideration of protection of the Australian community and the family violence primary consideration, should be weighed slightly, instead of moderately, against the revocation of the Cancellation Decision. I am otherwise satisfied that the weight I have assigned to the remaining primary and other considerations is appropriate.
Overall, I find that the primary considerations of the best interests of the Applicant’s 11-year-old son, K, and nine-year-old daughter, H, which weighed strongly in favour of revocation of the Cancellation Decision were determinative. The strength, nature and duration of the Applicant’s ties to Australia which weighed moderately, and the extent of impediments if removed other consideration, which weighed slightly in favour of the revocation of the Cancellation Decision, further added to the overall weight being in the Applicant’s favour.
I find that the considerations that weighed in favour of the revocation of the Cancellation Decision outweighed the considerations that weighed against the revocation of the Cancellation Decision. Those were the primary considerations of the protection of the Australian community which weighed moderately, and family violence and the expectations of the Australian community which both weighed slightly against the revocation of the Cancellation Decision.
In summary, I am satisfied that there is another reason why the Cancellation Decision should be revoked. Therefore, the correct or preferable decision is to set aside the Reviewable Decision, and to substitute a new decision that the Cancellation Decision should be revoked.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 23 February 2021 is set aside and substituted with a decision that the cancellation of the Applicant's Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

I certify that the preceding 198 (one hundred and ninety eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

...........[Sgd]................................................
Associate
Dated: 5 April 2024

Date of hearing: 5 and 6 December 2023

Representative for the Applicant: Self-represented

Representative for the Respondent:

Mr M Hawker, Sparke Helmore Lawyers

Date of hearing:	5 and 6 December 2023
Representative for the Applicant:	Self-represented
Representative for the Respondent:	Mr M Hawker, Sparke Helmore Lawyers