Tutunoa and Minister for Immigration and Citizenship (Migration) - [2025] ARTA 1408

Tutunoa and Minister for Immigration and Citizenship (Migration) [2025] ARTA 1408 (18 August 2025)
Applicant:Uaealesi Tutunoa
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3814
Tribunal:General Member K Thornton
Place:Melbourne
Date:18 August 2025
Decision:The Tribunal affirms the decision under review.

..................[SGD].................
General Member K Thornton
Catchwords
MIGRATION – Non-revocation decision under s 501CA(4) of the Migration Act 1958 (Cth) of the mandatory cancellation of Applicant’s Class TY (subclass 444) Special Category visa – where the Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation – family violence offending – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Secondary Materials
Australian Government, Australian Institute of Health and Welfare, ‘Family, domestic and sexual violence’ ‘Intimate partner violence’ website updated 30 July 2025
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, dated 7 June 2024
Statement of Reasons
INTRODUCTION

The Applicant is a 44-year-old citizen of New Zealand. He seeks review of a decision made by the delegate of the Respondent not to revoke the mandatory cancellation of his Class TY (subclass 444) Special Category (Temporary) visa under s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’).
For the following reasons, the Tribunal affirms the decision under review.
RELEVANT LEGISLATION
Section 501(3A) of the Act provides that 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.
Section 501(6)(a) provides that, for the purposes of this section, a person does not pass the character test if the person has a ‘substantial criminal record’ (as defined by s 501(7)). Section 501(7)(c) provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person. Section 501CA(4) provides that 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.
Section 500(1)(ba) provides that an application may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
DIRECTION 110
Section 499(1) of the Act provides that the Minister may give written directions to a person or body having functions or powers under the Act if the directions are about: (a) the performance of those functions; or (b) the exercise of those powers. Section 499(2A) provides that a person or body must comply with a direction under s 499(1).
Such a direction has been given under s 499 of the Act, namely Direction 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction 110’). The purpose of Direction 110 is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act.
Principles
Paragraph 5.2 of Direction 110 contains the principles which provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under s 501, or whether to revoke a mandatory cancellation under s 501CA. Those 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) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 110 provides that, informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 7 provides guidance in taking the relevant considerations into account. It states:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 contains the primary considerations which are:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
Paragraph 9(1) contains the other considerations. That paragraph provides that the other considerations must also be taken into account, where relevant, in accordance with their provisions. The other considerations include (but are not limited to):
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on Australian business interests.
PERSONAL BACKGROUND
Arrival into Australia and visa history
The Applicant was born in New Zealand in 1981. He arrived in Australia at age five with his parents and siblings.[1] He has two adult children (a son and a daughter) who each reside in Australia. His parents and siblings still reside in Australia.[2]
[1] Exhibit R1, 47, 190.
[2] Ibid 154.
On 19 March 2019, the Applicant was granted a Class TY (subclass 444) Special Category (Temporary) visa.[3]
[3] Ibid 191.
On 30 March 2023, the Applicant was sentenced in the Local Court of New South Wales at Burwood for various family violence offences. He was sentenced to an aggregate term of four years imprisonment with a non-parole period of three years.[4] The Applicant appealed the severity of this sentence.
[4] Ibid 60.
On 11 October 2023, the District Court of New South Wales allowed the appeal and re-sentenced the Applicant to an aggregate term of two years imprisonment with a non-parole period of 12 months.[5]
[5] Ibid 57.
On 15 March 2024, the Applicant’s visa was mandatorily cancelled under s 501(3A) by a delegate of the Respondent on the basis that the Applicant had a substantial criminal record within the meaning of s 501(6)(a) of the Act because he had been sentenced to a term of imprisonment of 12 months or more.[6]
[6] Ibid 191.
On 23 April 2024, the Applicant made representations seeking revocation of the cancellation decision.[7]
[7] Ibid 135-140.
On 28 May 2025, a delegate of the Respondent decided under s 501CA(4) not to revoke the original cancellation decision (‘the non-revocation decision’).[8]
[8] Ibid 23.
On 29 May 2025, the Applicant was notified of the non-revocation decision.[9]
[9] Ibid 50.
On 30 May 2025, the Applicant lodged an application for review of the non-revocation decision with the Tribunal.[10]
[10] Ibid 6.
TRIBUNAL HEARING
On 7 August 2025, a Tribunal hearing was held by video at the Melbourne Registry. The Applicant represented himself during the proceedings and appeared by video from immigration detention. The Respondent also appeared by video and was represented by Mr Simon Knuckey from HWL Ebsworth.
Documentary evidence
At the hearing the Tribunal received into evidence a combined Hearing Book as Exhibit R1 totalling 495 pages of material. The Hearing Book contained the following documents:
(a)G-documents totalling 252 pages;
(b)Respondent’s Statement of Facts, Issues and Contentions dated 10 July 2025;
(c)The Applicant’s documents comprising:
(i)A letter of apology and personal plea from the Applicant dated 20 July 2025;
(ii)Statutory Declaration from the Applicant’s adult daughter dated 23 July 2025;
(iii)A letter of support from the Hillsong Church dated 30 July 2025;
(d)Respondent’s Evidence Bundle comprising:
(i)Extract of documents produced under summons by the Burwood Local Court;
(ii)Extract of documents produced under summons by the Downing Centre District Court;
(iii)Extract of documents produced under summons by the New South Wales Department of Corrective Services; and
(iv)Extract of documents produced under summons by the Parramatta Local Court.
Oral evidence
During the Tribunal hearing, the Applicant gave evidence by video. Prior to giving evidence, the Applicant was advised about his privilege against self-incrimination. He indicated to the Tribunal that he understood that privilege.
The Applicant also called evidence from the following witnesses:
(a)His adult daughter;
(b)His adult niece; and
(c)His mother.
A summary of the oral evidence given at the Tribunal hearing follows.
The Applicant
The Applicant told the Tribunal that he is deeply regretful about his behaviour. He said he knows he has caused a lot of trouble for everyone and does not put the blame on anyone but himself.
The applicant said he is trying to find better ways to deal with challenges that don’t lead to alcohol. He told the Tribunal that alcohol is not a problem for him anymore. He said he has done alcohol education courses and behaviour courses which has helped him. He said if he is released into the community, he plans to undertake a men’s behaviour change program.
He said that his daughter recently gave birth to her first child, which was his first grandchild. He has met the grandchild twice whilst in immigration detention. He wants to do better for them and do better for his daughter. He told the Tribunal he wants to repair the damage he has caused to his family.
The Applicant told the Tribunal he wants to be around for his elderly parents. He gave evidence that his mother is on dialysis and his father is not doing well.
He said whilst in detention he has been trying to improve himself by gardening, training in the gym, eating healthy and engaging in programs.
In terms of his rehabilitation, he has done some drug and alcohol courses, and courses on emotions. He has learnt better ways to deal with his emotions, such as meditation and breathing exercises, which have helped him a lot.
He told the Tribunal he has been in Australia since he was five years old. He completed a Certificate IV in Hospitality and has been a chef for 27 years at multiple clubs in New South Wales.
He said all his friends and family are in Australia, and he has no one in New Zealand. His sisters live here and each of them have children. His eldest niece (who also gave evidence on his behalf) is his goddaughter and he said they are very close.
He said he is not a risk to the Australian community. He said he knows he won’t get another chance. He wants to care for his parents and care for his children and grandchild. He told the Tribunal they rely on him for emotional and financial support.
During cross-examination, the Applicant’s prior offences were put to him. He admitted most of the offending but said that he couldn’t recall some of the detail. He said he does take responsibility for his offences and that he hates himself for doing it. He said he never wanted to hurt his family.
The Applicant also said he has taken responsibility for an incident that occurred in immigration detention where he verbally abused a staff member but maintained that he was spoken to disrespectfully by the staff member.
He admitted to prior criminal offending against his family and son. He also admitted to prior criminal offending against police officers. He said he regrets his actions and wrote the letter of apology to the Tribunal as an acknowledgement of the harm he had done.
The Tribunal asked the Applicant about his plans if he were released into the community. He said he would live with his elderly parents, adult niece and her children. He said the children are primary school age or younger.
He said he has a current Apprehended Violence Order (AVO) against him protecting his former partner and son. He wasn’t sure how long it is in place for, but he said it had recently been extended for a further two years.
He told the Tribunal he sees a counsellor on a weekly basis in detention and has previously been on medication for his mental health but is no longer on medication now. He said he has some physical health conditions such as ‘bad knees’ but is still able to work.
He has had regular visits with his family in immigration detention, but otherwise they maintain contact through regular phone calls and text messages.
He said if he encounters stressful situations in the future he knows to walk away or engage in meditation. He said activities such as gardening and going to the gym has assisted his mental health and wellbeing.
The Applicant’s adult daughter
The Applicant’s adult daughter gave evidence by video. She told the Tribunal she recently had her first child in April of this year. She has visited her father in immigration detention with her child and otherwise has daily contact with him through phone calls and FaceTime.
She said their relationship is close. She said she has observed a change in his behaviour through the courses he has been doing and the counselling he has undertaken. She said her father now talks to her openly about how he is feeling, whereas in the past he may have kept things to himself. She said this has improved their relationship.
She told the Tribunal she believes her father is genuinely remorseful for his actions. She is certain that the past family violence incidents won’t happen again. She said he is working hard to rebuild relationships with his family.
The Applicant’s adult niece
The Applicant’s adult niece told the Tribunal that her family accepts the seriousness of his offences and that they don’t take his past behaviour and previous alcohol abuse lightly. She said her family has come to terms with the past events but does not excuse them.
She said she believes her uncle has genuine remorse for his actions and her family is hopeful he can lead a better life. She said the Applicant’s mother is currently awaiting a kidney transplant and they have been informed that the Applicant is potentially a suitable donor.
She told the Tribunal that if the Applicant is returned to the community and resides in the house with her and her children, she will impose strict boundaries on him, such as maintaining his sobriety and engaging in ongoing counselling. She said she believes people can change and she wants to give the Applicant a chance to be a better person.
She said the Applicant is like a father to her and his adult daughter is like a sister. She said she has been taking on a heavy load of looking after her children and grandmother while the Applicant is in detention. She said she hasn’t told her own children the truth about where their uncle is in order to protect them as they are currently dealing with other family issues. She said she is currently a single mother and would rely on the Applicant for his support for her children and for caring for his elderly parents.
The Applicant’s mother
The Applicant’s mother told the Tribunal that she is unwell and is waiting for a kidney replacement. She has dialysis every day and told the Tribunal that her son is a match for her. When asked how she knows this, she said her doctor has told her.
She said she knows her son is sorry, because she is his mother, and she knows her son. She said she doesn’t have any family in New Zealand, but her husband does. She said her husband’s family still reside in New Zealand.
She said she has visited the Applicant in detention a few times and he calls her on a regular basis.
ISSUES TO BE DETERMINED
The Tribunal needs to consider two issues in determining this application for review.
First issue: Does the Applicant pass the character test?
The first issue the Tribunal needs to determine is whether the Applicant passes the character test. On 11 October 2023, the District Court of New South Wales allowed an appeal lodged by the Applicant against the severity of the sentence imposed by the Burwood Local Court on 30 March 2023.[11] The District Court re-sentenced the Applicant to an aggregate term of two years’ imprisonment with a non-parole period of 12 months.[12]
[11] Ibid 85-96.
[12] Ibid.
The Applicant therefore has a ‘substantial criminal record’ according to the definition in s 501(7) of the Act because he was sentenced to a term of imprisonment of 12 months or more. A person who has a ‘substantial criminal record’ does not pass the character test according to s 501(6)(a) of the Act.
The Tribunal therefore finds that the Applicant does not pass the character test. Accordingly, he cannot rely on s 501CA(4)(b)(i) as a basis to revoke the cancellation decision.
Second issue: Is there another reason why the cancellation decision should be revoked?

The remaining issue to be determined is whether there is ‘another reason’ why the cancellation decision should be revoked under s 501CA(4)(b)(ii) of the Act.
In order to determine this issue, the Tribunal is required to undertake an assessment of the representations put forward by the Applicant.[13] The Tribunal is required to read, identify, understand and evaluate the representations and must bring its mind to bear upon the facts stated in them or the arguments and opinions put forward and appreciate who is making them.[14] The weight to be afforded to the representations is a matter for the decision-maker.[15]
[13] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582, 589 [22].
[14] Ibid [24].
[15] Ibid.
The Tribunal will apply the terms of Direction 110 in determining whether there is another reason why the cancellation decision should be revoked.
PRIMARY CONSIDERATIONS
Primary consideration one: Protection of the Australian community
Paragraph 8.1 of Direction 110 states:
(1)When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2)Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen's conduct to date; and
b) the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal has had regard to the matters set out at paragraph 8.1(1). The Tribunal has kept in mind that the safety of the Australian community is the highest priority of the Australian Government. The Tribunal has had 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.
The Tribunal has considered the matters identified at paragraph 8.1(2) of Direction 110, which are dealt with below.
The nature and seriousness of the conduct
Paragraph 8.1.1(1) of Direction 110 sets out the factors that decision-makers must have regard to when considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date.
Paragraph 8.1.1(1)(a) provides that 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. They are:
i.violent and/or sexual crimes;
ii.crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed.
Paragraph 8.1.1(1)(b) identifies a non-exhaustive list of crimes or conduct that are considered serious by the Australian Government and the Australian community. They include crimes committed against vulnerable members of the community (such as the elderly or disabled), or government representatives or officials due to the position they hold or in the performance of their duties.[16]
[16] Direction 110, 8.1.1(1)(b)(ii).
Paragraph 8.1.1(1) also identifies other factors to which decision-makers must have regard. Those factors are considered further below.
The Applicant’s offending
The Applicant’s criminal offending has spanned most of his adult life. He has a lengthy criminal history dating back to March 2000 when he was aged 18.[17]
[17] Exhibit R1, 74.
The offending that led to the cancellation of his visa and most recent sentence of imprisonment occurred on 17 March 2023.[18] He was sentenced for that offending on 30 March 2023 by the Burwood Local Court.[19]
[18] Ibid 79.
[19] Ibid 76-82.
The offending was described by the sentencing court as follows:[20]
The victim was your wife or your former wife, victim one. Victim two was your 16 year old boy. You had been married for about 22 years, you had two children. A 21 year old daughter and the victim two, being 16. There was a current enforceable AVO, you breached it in this way, on 17 March you returned home intoxicated, having consumed beer. When you arrived, your wife was asleep on the lounge and she woke up because she heard a loud smashing noise and she found you smashing the remote control and white headphones. She was confused. You were aggressive and hostile and she thought it was out of character. You then accused her of sleeping too much.
She then stands up, goes to the kitchen. She is asking you why you are angry and then you push her with one hand and you push her on the shoulder, and you continued pushing her on to the wall and then you grabbed her around the throat and squeezed it for ten seconds. She repeatedly told you to get off.
You then kicked the locked bedroom door demanding to be let in to the room. Once you get in to the room, there is verbal abuse, you called her a dog, the mother of your children. Then victim two tried to intervene, your 16 year old son. You followed your wife in to the room, again you grabbed her by the throat, tightly. You squeezed her throat for 30 seconds, she was struggling to speak.
After you finished choking her, you have pushed her in to the bedframe with your two hands on her chest causing her to fall over on the floor, causing pain to her tail bone. You have then grabbed her around the chest and you pulled her shirt aggressively. Your 16 year old son entered the room after witnessing and hearing it all, you have lunged at him with a closed fist and just missed him. She has told you not to lay hands on the son, you said “I can do whatever… I want”, started slapping her again so it was this ongoing persistent abuse and violence on victim one, the mother of your children but it did not stop there. You have then grabbed her around the neck, again and not letting go and this was for ten to 15 seconds. She eventually managed to get away and she sent text messages when the police arrived.
[20] Ibid 79-80.
Those facts formed the basis of the family violence offending and resulted in the following charges:
·four charges of common assault (DV);
·three charges of intentionally choke person without consent (DV);
·one charge of contravene prohibition/restriction in AVO (domestic);
·one charge of stalk/intimidate intend fear physical etc harm (domestic); and
·one charge of destroy or damage property (under $2,000).[21]
[21] Ibid 60.
The Applicant was also sentenced on the same occasion on:
·one charge of licensed driver, high range PCA sit next to learner; and
·one charge of contravene prohibition/restriction in AVO (domestic).
Those offences occurred on 25 November 2022.[22] On that occasion, the Applicant was accompanying his son, who was a learner driver, driving at 125 kilometres in a 90-kilometre zone. The vehicle was stopped by police, and the Applicant was breath tested. He returned a positive reading of 0.231.[23] The Applicant also contravened an AVO on this occasion because the AVO prevented the Applicant from being in the company of his son for at least 12 hours after consuming alcohol.[24]
[22] Ibid 316-22.
[23] Ibid 79.
[24] Ibid 28.
In relation to the November 2022 offending, the Magistrate noted that general and specific deterrence for the Applicant is paramount, as is the protection of the community.[25] In regard to the seriousness of the family violence offending, the Magistrate stated as follows:[26]
In terms of the objective gravity, that is at the upper end of objective seriousness. This is against a background and a history of violence, a history of domestic violence, a history of violence against the same complainant and the authorities have made clear that in relation to your conduct on this occasion, I am going to tell you this, domestic violence is a blight on civil society. No man should strike a woman. To do so is cowardly, it is abhorrent and it is contrary to the rules of a civilised society. If you strike a woman, you forfeit your right and your opportunity to live in a civil society. By engaging in that behaviour, you forfeit the privilege to remain in a civil society. You must be removed and gaol is the only option for you. Your conduct was unwarranted. Your conduct was violent. Your conduct was abhorrent, it was disrespectful, it was forceful, it was an abuse of a relationship of trust, it was brutal. You were aggressive. You were violent and it is the longstanding obligation of the State to vindicate the dignity of each victim of violence to express the community’s disapproval of that offending and to afford such protection as can be afforded by the State to the vulnerable against violence.
[25] Ibid 79.
[26] Ibid 80.
The Magistrate also noted that in sentencing the Applicant who was a repeat domestic violence offender, specific and general deterrence were important factors, together with the requirement of a powerful denunciation and a need to protect the community.[27] The Magistrate described the Applicant’s prospects of rehabilitation as ‘zero to none’ and that his history of non-compliance with court orders, and lack of motivation to change his behaviour as a reason why the Court must protect the victim and the community at large.[28]
[27] Ibid.
[28] Ibid.
In allowing the Applicant’s appeal against his sentence, the District Court indicated that the driving offence is not of sufficient objective seriousness to cross the threshold of warranting the imposition of a custodial sentence.[29] For that offending the court imposed a Community Correction Order (‘CCO’) for 18 months.[30] The District Court did not regard the objective seriousness of each of the offences concerning the family violence to collectively warrant an aggregate term of four years imprisonment.[31] The Court accepted that the Applicant had a history of abuse of domestic violence orders, particularly in relation to his family, ‘such that it is time to feel the full effects of the law’.[32] The District Court also found special circumstances existed such as the need for rehabilitation of the Applicant’s alcoholism.[33] The Court therefore allowed the appeal and re-sentenced the Applicant to an aggregate term of two years imprisonment, with a non-parole period of 12 months.[34]
[29] Ibid 88.
[30] Ibid.
[31] Ibid 89.
[32] Ibid.
[33] Ibid 91.
[34] Ibid.
Prior convictions
The Applicant has significant prior convictions, including prior convictions for family violence against the same victim, being his former partner, as follows:
On 9 June 2022, he was sentenced at the Burwood Local Court to one charge of armed with intent to commit indictable offence, one charge of stalk/intimidate intend fear physical etc harm (domestic) and one charge of assault occasioning actual bodily harm (DV).[35] Those charges arise out of an incident of family violence that occurred on 5 April 2022.[36]
[35] Ibid 65.
[36] Ibid 288.
On that occasion, the victim had arrived home after being out with a friend. The Applicant started a verbal confrontation with the victim about her not being at home. The argument became more heated with the Applicant standing over the victim and berating her for her actions. He was pointing his finger in her face and the victim feared the Applicant was going to slap her. The witness, the Applicant’s son, tried to intervene and pull the Applicant away, which the Applicant shrugged off and demanded the witness return to his bedroom and not get involved.[37]
[37] Ibid.
Due to the stress of the situation, the victim ran to the bathroom and vomited. Whilst this was occurring, the Applicant continued to stand over the victim and berate her. The Applicant then kicked the victim on the left-side of her mouth and kicked her again to her forehead. The victim was screaming. The witness overheard this and ran to the bathroom to see the victim on the floor and blood coming from her mouth. The witness attempted to pull the Applicant away, yet he continued to shrug it off.[38]
[38] Ibid.
The victim went into the bedroom and the Applicant followed her continuing the argument. The witness observed the Applicant leave the bedroom and then return with a 19 cm meat cleaver in his right hand. The Applicant started to swear and berate the victim stating he would kill her and waved the knife in her face as he slowly stepped closer to her. The Applicant then held the spine of the knife to the base of the victim’s neck and yelled at her, threatened to cut her and slice her head open. The victim was able to calm the Applicant down, at which point she went to the bathroom. As she exited the bathroom, she whispered to the witness to call police.[39]
[39] Ibid 288-9.
For this offending the Applicant was sentenced to an Intensive Correction Order (‘ICO’) for 18 months.[40] He breached this ICO by his further family violence offending which he committed on 17 March 2023.[41]
[40] Ibid 65.
[41] Ibid 77.
On 4 March 2021, he was sentenced at the Bankstown Local Court of one charge of intimidate police officer in the execution of duty, and one charge of resist or hinder police officer in the execution of duty.[42] For this offending, he was sentenced to a term of 12 months imprisonment with a non-parole period of seven months for the first charge, and eight months imprisonment with a non-parole period of six months on the second charge.[43] On appeal, the District Court upheld the head sentences but reduced the non-parole period of the first charge to six months.[44] The non-parole period of the second charge was confirmed.
[42] Ibid 66.
[43] Ibid.
[44] Ibid.
On 27 July 2020, the Applicant was sentenced at the Burwood Local Court of two charges of assault officer in execution of duty, one charge of resist officer in execution of duty, one charge of behave in offensive manner, one charge of intimidate police officer in execution of duty, two charges of common assault and one charge of destroy or damage property.[45] For this offending he was sentenced to an ICO for 10 months with a condition to be of good behaviour and to abstain from alcohol.[46]
[45] Ibid 66-72.
[46] Ibid.
On 26 September 2019, the Applicant was sentenced at the Burwood Local Court of two charges of stalk/intimidate intend fear physical harm (personal) and one charge of resist officer in execution of duty.[47] For this offending, he was sentenced to a CCO of two years.[48] He breached that order by the further offending in 2020 referred to above. He was re-sentenced on these charges to an ICO of 10 months.[49]
[47] Ibid 72.
[48] Ibid.
[49] Ibid 66-72.
On 27 September 2018, the Applicant was sentenced at the Burwood Local Court of one charge of drive with high range PCA and one charge of attempt stalk/intimidate intend fear of harm (personal).[50] He was sentenced to a 10-month ICO and a conditional release order. He was ordered to participate in alcohol and drug rehabilitation programs.[51]
[50] Ibid 73.
[51] Ibid.
On 15 January 2014, the Applicant was sentenced at the Burwood Local Court to two charges of intimidate police officer in the execution of duty.[52] He was sentenced to a good behaviour bond of 18 months.[53]
[52] Ibid 73.
[53] Ibid.
On 18 August 2011, the Applicant was sentenced at the Burwood Local Court of one charge of larceny for which he received a good behaviour bond of 12 months.[54]
[54] Ibid.
On 28 July 2010, the Applicant was sentenced at the Parramatta Local Court to one charge of assault occasioning actual bodily harm (DV) and one charge of common assault (DV). He was sentenced to a Community Service Order of 400 hours.[55] This offending was another incident of family violence which occurred on 8 January 2010.[56]
[55] Ibid.
[56] Ibid 473-6.
On this occasion, the Applicant and the victim attended a licensed venue where they consumed alcohol. At about 4am the victim and the Applicant returned home. The Applicant instructed the victim to purchase cigarettes.[57] The victim agreed and while she was sitting on the edge of the bed, the Applicant kicked the victim in the middle of her back causing her to fall off the bed and hit her head on the wall.[58] In retaliation, the victim picked up an empty water bottle and threw it back at the Applicant, hitting him in the head. The Applicant grabbed the victim by her shirt and pulled her back on the bed. The Applicant then threatened to kill the victim. He grabbed the victim around her throat and forced her against a wall.[59] He then attempted to punch the victim several times with a closed fist, however none of these attempts were successful. The Applicant continued to hold his hand around her neck. The Applicant then released his grip and proceeded to throw a television and a dresser against the wall. The victim then left the house and went out to her car. The Applicant followed her and entered the passenger seat.[60] The victim drove to a service station.
[57] Ibid 474.
[58] Ibid.
[59] Ibid 475.
[60] Ibid.
During the journey, the Applicant continued to scream at the victim. When the victim went into the service station, she asked the attendant to call police and wrote her address on the reverse side of the receipt. The victim was extremely upset and crying but did not want to be caught asking for police assistance. A short time later, the police attended the home address.[61]
[61] Ibid 476.
On 22 September 2009, the Applicant was sentenced at the Burwood Local Court on one charge of drive while disqualified to periodic detention for nine months.[62]
[62] Ibid 73.
On 11 October 2007, the Applicant was sentenced at the Parramatta Local Court on one charge of drive while disqualified, one charge of use uninsured motor vehicle and one charge of use unregistered motor vehicle. He was sentenced to a Community Service Order and his licence was disqualified on the drive whilst disqualified charge. He later breached that order and was re-sentenced on 3 September 2008 on the drive while disqualified charge to six months imprisonment, which was suspended for six months.[63]
[63] Ibid.
On 2 April 2007, the Applicant was sentenced at the Burwood Local Court on two minor driving offences for which he received a $250 fine.[64]
[64] Ibid 74.
On 16 March 2000, the Applicant was sentenced at the Burwood Local Court of one charge of demand property with menaces with intent to steal and one charge of common assault.[65] He was sentenced to six months imprisonment on the demand property charge. He later appealed that sentenced and was re-sentenced to periodic detention for five months.[66]
[65] Ibid.
[66] Ibid.
Family violence offending
The most recent offending conduct that occurred on 17 March 2023 occurred in the context of family violence. ‘Family violence’ is defined in Direction 110 and means ‘violent, threatening or other behaviour that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful.’[67] The definition gives examples of behaviour that may constitute family violence which include assault, stalking, repeated derogatory taunts, or intentionally damaging or destroying property.[68]
[67] Direction 110, 4(1).
[68] Ibid.
The Applicant was convicted of a number of offences in relation to the March 2023 incident including charges of common assault, intentional choking, stalking and destroying or damaging property.[69]
[69] Exhibit R1, 60.
The sentencing court described the offending as ‘at the upper end of objective seriousness.’[70] The offending involved the Applicant choking the victim on three separate occasions over the course of the offending incident. He pushed the victim causing her to fall to the floor. He lunged at his then 16-year-old son with a closed fist, just missing him. He then slapped the victim when she tried to intervene.[71]
[70] Ibid 80.
[71] Ibid 79.

This is not the only incidence of family violence that the Applicant has been convicted of. As detailed above there are at least two further family violence incidents. One of these incidents occurred in April 2022 and involved the Applicant kicking the victim in the mouth and to the forehead and holding a meat cleaver to her throat and threatening to kill her. Another incident occurred in January 2010 and involved the Applicant kicking the victim in her back, attempting to assault her with a closed fist and damaging property.
The Applicant’s conduct in all three events plainly meets the definition of family violence. The offences were committed against the same victim, and on two of those occasions was witnessed by the Applicant’s son.
The Tribunal concludes that the Applicant’s family violence offending is conduct that can be considered as very serious according to paragraph 8.1.1(1)(a) of Direction 110.
The Tribunal also notes that the Applicant has committed offences against police officers. That type of conduct is considered serious by the Direction as it involves crimes committed against government representatives or officials due to the position they hold, or in the performance of their duties.[72] The Tribunal does not have the details of these offences or the circumstances in which they occurred, so the weight that can be attributed to those offences is limited.
[72] Direction 110, 8.1.1(1)(b)(ii).
In relation to the other factors identified at paragraph 8.1.1(1) of the Direction, the Tribunal notes as follows:
Paragraph 8.1.1(1)(c): The Tribunal has taken into account the sentence imposed for the Applicant’s other crimes or conduct. The Tribunal notes that the Applicant was sentenced to periodic detention for nine months for drive while disqualified on 22 September 2009.[73] For the offence of drive with high range PCA, he was sentenced to an ICO for ten months on 27 September 2018.[74] The most recent driving offence involved the Applicant being heavily intoxicated whilst his son, a learner driver, was driving at 125 kilometres in a 90-kilometre zone.[75] The District Court re-sentenced the Applicant to a CCO for a period of 18 months for that offending (which was reduced from an indicative term of six months imprisonment as initially handed down by the Local Court).[76] The Tribunal has taken into account these sentences which included periodic detention and a lengthy CCO. The Tribunal considers this is reflective of the seriousness with which the courts view the Applicant’s conduct.
[73] Exhibit R1, 73.
[74] Ibid.
[75] Ibid 88.
[76] Ibid 94, 83.
Paragraph 8.1.1(1)(d): The Tribunal does not have evidence before it of the impact of the Applicant’s offending on his victims in the form of victim impact statements or the like. However, the Tribunal has had regard to the police summaries which detail the injuries the victim sustained and her emotional distress at the time of the offending. The police have described the injuries they observed on the victim in relation to the April 2022 incident and had taken photographs of injuries sustained in the January 2010 incident.[77] It is clear from a plain reading of this material that the Applicant’s offending would have had a significant negative physical and psychological impact on the victim and his son, and the Tribunal has taken this impact into account.
[77] Ibid 289, 476-83.
Paragraph 8.1.1(1)(e): The Applicant’s offending has been frequent and has increased in seriousness. The Tribunal has detailed the Applicant’s prior offending history above. The Tribunal notes that the Applicant has been consistently offending since 2000. The Applicant has been previously subject to many court-imposed orders which have not had the desired effect of curbing his offending behaviour and alcohol use. The Tribunal has had regard to the frequency and increasing seriousness of the Applicant’s offending.
Paragraph 8.1.1(1)(f): The Tribunal has had regard to the cumulative effect of the Applicant’s repeated offending. The Tribunal notes that the Applicant has previously breached a CCO and ICO’s. He has also breached his AVO twice, in the case of his most recent offending. The cumulative effect of the Applicant’s repeated offending resulted in an increasing seriousness of penalties being imposed, from a CCO, to periodic detention, to an ICO, and full-time imprisonment. The Applicant has been frequently engaged with the New South Wales Department of Corrective Services over many years, as evidenced by the Case Note Reports obtained by the Respondent.[78] The Tribunal considers that the Applicant’s repeated offending has impacted the victim, the community, and the criminal justice system as a whole. The Tribunal has taken the cumulative effect of the Applicant’s repeated offending into account.
[78] Ibid 340-449.
Paragraph 8.1.1(1)(g): The Tribunal notes that the Applicant has provided false or misleading information on two incoming passenger cards on 4 February 2018 and 9 March 2019.[79] On each occasion, he declared he didn’t have any criminal convictions when in fact he did have criminal convictions dating back to March 2000. The Tribunal has taken this into account and attributed it some weight.
[79] Ibid 188, 133-4.
Paragraph 8.1.1(1)(h): There is no evidence that the Applicant had previously been formally warned about the consequences of further offending on his migration status. However, the Applicant was at least alive to the possibility that he was placing his visa status in jeopardy in April 2020, as he mentioned to his Community Corrections Officer at the time that ‘he was worried about possible deportation depending on his sentence.’[80] The Tribunal notes that the absence of a warning should not be considered to be in the non-citizen’s favour.[81] On balance this factor is given no weight.
[80] Ibid 412.
[81] See Direction 110, 8.1.1(1)(h).
Paragraph 8.1.1(1)(i): This factor is not relevant to the Applicant.
In conclusion, the Tribunal considers that the nature of the Applicant’s offending to be very serious. It has involved repeated instances of family violence committed against the same victim, and involved the use of physical violence, including choking and kicking. The Tribunal has had regard to Direction 110 which states that acts of family violence is conduct that is viewed very seriously by the Australian Government and the Australian community.[82] In the Applicant’s case, the conduct was repeated, prolonged and violent and on two occasions involved the Applicant’s teenage son attempting to intervene to protect his mother.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
[82] Direction 110, 8.1.1(1)(a)(iii).
Paragraph 8.1.2(1) provides that 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.
The Direction provides that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk it may be repeated may be unacceptable.[83]
[83] Direction 110, 8.1.2(1).
In making an assessment of the risk that may be posed by the non-citizen to the Australian community, decision-makers should have regard to, cumulatively, the following factors:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the non-citizen reoffending; 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).
The Respondent submits that the Applicant’s sustained and escalating pattern of violent offending, including serious acts of family violence, and offending against government officials, demonstrates that the Applicant is an unacceptable risk to the Australian community if that conduct were repeated.[84] To that end the Respondent relies upon the following factors which is submitted inform an assessment of the Applicant’s risk:
(a)Breach of Court imposed conditions: The Respondent notes that the Applicant has a history of breaching Court orders and conditions.[85] For example, in regard to his most recent offending on 17 March 2023, the Applicant was in breach of an AVO and was at the time subject to an ICO.[86]
(b)Substance abuse: The Respondent submits that there is a causal link between the Applicant’s offending and his substance abuse.[87] It is noted that at the time he committed his most recent offences, he was affected by alcohol while supervising his son who was a learner driver and travelling at speeds of 125 kilometres per hour in a 90-kilometre zone. He not only returned a high-range blood alcohol reading of 0.231 but was also in breach of his AVO by being in the company of his son whilst alcohol affected.[88] He also consumed alcohol prior to the commission of his most recent family violence offence.[89]
(c)Insight: It is submitted that the Applicant demonstrates a lack of insight into the significance and impact of his offending by failing to consider the impact of his offending on others.[90] Specifically, the Respondent relies upon an exchange between the Applicant and the Magistrate at the Burwood Local Court on 9 June 2022 in which the Applicant plainly denied that any physical altercation had taken place in regard to the incident where he was alleged to have kicked his former partner in the head.[91] The Court accepted the facts as charged and the Applicant was sentenced to an ICO for a period of 18 months for that offending.[92]
(d)Behaviour in custody: The Respondent relies on the Applicant’s behaviour in prison and in immigration detention to establish that he is still an unacceptable risk to the community. The Respondent notes that the Applicant had been reported for six incidents in prison on 18 June 2021 and 7 January 2024 for which he received various sanctions.[93] He was also involved in an incident in immigration detention where he was reported to be abusive and aggressive to medical staff.[94] The Applicant later wrote a letter apologising for the incident.[95]
[84] Exhibit R1, 270 [61].
[85] Ibid 268 [50].
[86] Ibid 268 [52].
[87] Ibid 268 [53].
[88] Ibid.
[89] Ibid.
[90]Ibid 267-9 [55].
[91] Ibid 98.
[92] Ibid 104.
[93] Ibid 269 [57], 120.
[94] Ibid 269 [58].
[95] Ibid 269 [58], 131.
The Applicant submitted that he has taken steps towards personal change and healing and has engaged in behavioural change and self-reflection programs. He submits that he has taken ownership of his actions and is committed to doing better for those he hurt.[96] He stated he is determined to remain sober and rebuild his life with purpose.[97]
[96] Ibid 275.
[97] Ibid 276.
Nature of the harm should the Applicant engage in further criminal or other serious conduct
Should the Applicant engage in further criminal or other serious conduct, the Tribunal is of the view it would cause further physical and psychological harm to his former partner, his son and the Australian community at large. Any further offending would also be in breach of the current AVO which is in place to protect his former partner and son.
Likelihood of the Applicant engaging in further criminal or other serious conduct
The Tribunal has had regard to the courses the Applicant has completed whilst in immigration detention in an effort to reduce his risk of reoffending. Those courses include:[98]
[98] Ibid 180-7.
·Domestic Violence Awareness:[99]
[99] Ibid 180.
oThe Certificate for this course was issued on 30 April 2024. There is no formal information on the content of this course, but the Certificate states that the course required eight contact hours.
·Understanding Addictions:[100]
[100] Ibid 181.
oThe Certificate for this course was also issued on 30 April 2024. There is no formal information on the content of this course, but the Certificate states that the course required ten contact hours.
·Drug and Alcohol Abuse 101:[101]
[101] Ibid 182.
oThe Certificate for this course was issued on 21 April 2024. There is no formal information on the content of this course, but the Certificate states that the course required seven contact hours.
·Anger Management Techniques:[102]
[102] Ibid 184.
oThe Certificate for this course was issued on 18 April 2024. There is no formal information on the content of this course, but the Certificate states that the course required five contact hours.
·Anxiety Therapy 101:[103]
[103] Ibid 185.
oThe Certificate for this course was issued on 23 April 2024. There is no formal information on the content of this course, but the Certificate states that the course required five contact hours.
·Depression Management:[104]
oThe Certificate for this course was issued on 15 April 2024. There is no formal information on the content of this course, but the Certificate states that the course required five contact hours.
·Positive Lifestyles Program:[105]
oThis program is administered by the Salvation Army. The Certificate for this program was issued on 28 June 2024. The Certificate states that the subjects completed in this program are self-awareness, anger, depression and loneliness, stress, grief and loss, assertiveness, self-esteem and future directions.
[104] Ibid 186.
[105] Ibid 187.
The Applicant also attended the SMART Recovery Program on 21 March 2024.[106] The Attendance and Participation Form for that program indicates that attendees will be required to participate in the meeting and not merely attend in order to receive a signature. The Tribunal accepts that the Applicant attended and participated in the meeting on 21 March 2024 because the program facilitator affixed their signature to the Applicant’s form.[107]
[106] Ibid 183.
[107] Ibid.
The Tribunal has had regard to the Applicant’s attendance and completion of these courses and programs. The Tribunal has had regard to the number of contact hours involved and the Applicant’s commitment to attending such courses to address the reasons for his offending behaviour and to rehabilitate.
The Tribunal accepts the Applicant’s oral evidence to the Tribunal that these courses have helped him to address his anger and understand the nature of his addiction to alcohol. He states in his apology letter that he has taken ownership of his actions and is committed to doing better.[108] He regrets and acknowledges the pain he inflicted, and deeply regrets the suffering he caused his family.[109]
[108] Ibid 275.
[109] Ibid.
In regard to information and evidence on the Applicant’s risk of reoffending, the Tribunal notes that NSW Corrective Services have undertaken various Sentencing Assessment Reports in preparation for the Applicant’s court appearances.
In a report dated 6 June 2022, the author notes that the Applicant was assessed at a medium risk of re-offending according to the Level of Service Inventory – Revised (LSI – R) assessment tool.[110] The author noted that the Applicant had an ‘extensive criminal history comprising of similar offending’ and has ‘a sustained history of offending under the influence of alcohol.’[111] The Applicant expressed a willingness to engage in supervision and psychological intervention.[112] The report was accompanied by a letter from his GP dated 3 June 2022 which stated that the Applicant has symptoms of depression and anxiety and is taking anti-depressant medication.[113] There was also a letter from the Applicant’s psychologist (Mr Kasim Abaie) dated 3 June 2022 which confirmed that the Applicant had attended on six occasions for psychotherapy to address his stress and unwanted thoughts.[114] Mr Abaie opined that the Applicant is not at risk to himself or others and that he is a supportive father.[115]
[110] Ibid 293.
[111] Ibid 292.
[112] Ibid 292-3.
[113] Ibid 296.
[114] Ibid 297.
[115] Ibid.
The Applicant told the Tribunal he no longer takes anti-depressant medication and ceased taking the medication when he went to prison. He told the Tribunal he sees a counsellor weekly in detention and has been attending counselling ‘for a few months.’
Unfortunately, subsequent to the June 2022 report, the Applicant did re-offend by committing the high-range drink driving and breach of AVO offence on 25 November 2022. In preparation for the court appearance for that offending, NSW Corrective Services prepared a further Sentencing Assessment Report dated 20 February 2023.[116] The author of this subsequent report noted that the Applicant ‘appears to have limited insight regarding the negative impact alcohol continues to have on his life.’[117] The author noted that the Applicant was referred to Odyssey House for treatment for his alcohol abuse issues.[118] The Applicant was again assessed as a medium risk of re-offending on the LSI-R tool. The author recommended that the Applicant be subject to ‘Tier 2 Medium-High’ supervision with Corrections which means he would be required to have weekly contact and engage in treatment to address his alcohol issues.[119] The letter from Odyssey House dated 4 March 2023 confirmed that the Applicant had been engaged in a non-residential treatment program to address his addiction to alcohol. The letter stated that the Applicant had attended for counselling twice since commencing treatment on 15 December 2022, with his most recent attendance at counselling being on 3 March 2023.[120]
[116] Ibid 332-9.
[117] Ibid 333.
[118] Ibid.
[119] Ibid 335.
[120] Ibid 339.
Against this however, the Tribunal notes that the Applicant committed his most recent family violence offending on 17 March 2023, which is a fortnight after he last attended for counselling and treatment at Odyssey House. The NSW Police Fact Sheet reports that the Applicant had been drinking at a pub on 17 March 2023, and then consumed further alcohol when he returned home.[121]
[121] Ibid 324.
The Applicant has not provided any updated medical materials or reports on his current level of risk. His Church Pastor did write a letter of support for the Applicant and noted that the Applicant has been attending weekly church services which has assisted in his rehabilitation and changed his outlook on life.[122] The Tribunal accepts the Applicant’s evidence that the recent birth of his first grandchild has changed the Applicant’s outlook and that he wants to be there to support his children and grandchild.[123] The Tribunal also accepts that he has the support of his immediate family members including his parents and adult daughter. The Applicant gave evidence that upon release he would reside with his parents, and adult niece and her three children. The Tribunal accepts the evidence of his niece that she would take a zero-tolerance approach to the Applicant’s alcohol consumption and that she would ensure he would engage in counselling as required.
[122] Ibid 279-80.
[123] Ibid 275.
The Tribunal has considered the information and evidence on risk, and the evidence of rehabilitation achieved at the time of the Tribunal’s decision. The Tribunal considers that the Applicant presents with a medium risk of re-offending which is consistent with the findings of his two most recent Sentence Assessment Reports. The Tribunal accepts the Respondent’s submissions that the Applicant has demonstrated a poor adherence to Court orders and has a demonstrated substance abuse issue which has contributed in a significant way to his offending. The Tribunal accepts that whilst the Applicant is now remorseful and has restrained from alcohol use in the controlled environment of immigration detention, the Tribunal is cautious about his ability to abstain from alcohol in the community. The Tribunal asked the Applicant how he would approach certain stressful situations in the future, and he indicated he would ‘walk away’. The Tribunal does not have confidence that the Applicant would be able to refrain from alcohol use or withdraw from stressful situations given his extensive criminal history and poor compliance with previous court orders. The Tribunal considers that the harm that would be caused, if the Applicant were to once again re-offend, is so serious that any risk it may be repeated is unacceptable. The Applicant has offended against the same victim on three separate occasions. If the Applicant were to re-offend again, the victim may be at risk of further serious injury.
Conclusion on primary consideration one

The Tribunal concludes that this primary consideration as a whole weighs very heavily in favour of not revoking the mandatory cancellation decision.
As permitted by paragraph 7.2(2), the Tribunal has decided to give this primary consideration greater weight than the other primary considerations due to the nature and seriousness of the Applicant’s family violence offending and the risk to his victim and the Australian community in general should the Applicant re-offend.
Primary consideration two: Family violence committed by the non-citizen
Paragraph 8.2(1) of Direction 110 states that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Direction states that the Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
This consideration is relevant in circumstances where the non-citizen has been convicted, found guilty, or had charges proven, that involve family violence.[124]
[124] Direction 110, 8.2(2).
Paragraph 8.2(3) provides that in considering the seriousness of the family violence engaged in by the non-citizen, the following factors must be considered, where relevant:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non-citizen's migration status, should the non-citizen engage in further acts of family violence.
The Tribunal has had regard to these factors as follows:
Paragraph 8.2(3)(a): Frequency of conduct and/or whether there is any increasing trend of seriousness: The Applicant has been convicted of three instances of family violence where the Tribunal has details of those facts before it. Those offences occurred on 8 January 2010, 5 April 2022, and 17 March 2023.
(a)8 January 2010:[125] This incident involved the Applicant kicking the victim to the back, causing her to fall to the floor and hit her head. She drove with the Applicant to a service station where she raised the alarm.
(b)5 April 2022:[126] This incident involved the Applicant kicking the victim to her mouth and forehead and placing a meat cleaver to her neck whilst making threats to injure her. The Applicant’s son attempted to intervene but was shrugged off by the Applicant.
(c)17 March 2023:[127] This incident involved the Applicant choking the victim three times and lunging at the Applicant’s son with a closed fist when he attempted to intervene.
[125] Exhibit R1, 473-6.
[126] Ibid 286-90.
[127] Ibid 332-6.
The Tribunal is satisfied that the Applicant’s family violence offending has been frequent and there is an increasing trend of seriousness. The violence was perpetrated against the same victim on all three occasions and involved the Applicant’s son on two of those occasions. The Tribunal considers that the presence of the Applicant’s underage child on the last two occasions aggravates the seriousness of the conduct.
Paragraph 3.2(3)(b): Cumulative effect of repeated acts of family violence: The Tribunal considers that the repeated acts of family violence on the victim and the Applicant’s son would have had a profound negative impact upon them. The Tribunal notes that each of these victims are still protected by an AVO. The Applicant reports that his son is attempting to have the AVO lifted, but there is no independent evidence before the Tribunal to corroborate this.[128] There is no question of the devastating impact that repeated acts of family violence have on victims. The Australian Institute of Health and Welfare has published findings which state that intimate partner violence can have long-lasting impacts on an individual’s physical and mental health as well as their economic and social wellbeing.[129] The Tribunal has had regard to this statement and considers that the victim and her son would be impacted by the cumulative effect of repeated acts of family violence perpetrated against them.
[128] Ibid 275.
[129] Australian Government, Australian Institute of Health and Welfare, ‘Family, domestic and sexual violence’ Intimate partner violence’ website updated 30 July 2025 <>
Paragraph 8.2(3)(c): Rehabilitation achieved at the time of decision since the person’s last known act of family violence: The Tribunal acknowledges the Applicant’s letter of apology and efforts he has taken to rehabilitate himself. It is acknowledged that he has undertaken courses to address his offending behaviour and has regularly attended counselling services. The Tribunal accepts that the Applicant has taken responsibility for his offending and does understand the impact of his behaviour on the abused and witness of that abuse (being his son). The Tribunal acknowledges the Applicant’s admission that whilst alcohol was a factor in his offending, he is the sole cause of his own actions, and that the choices he made in offending were his own.[130] The Tribunal has taken this into account and considers it does weigh moderately in the Applicant’s favour, although it is noted that the Applicant has a poor history of maintaining his sobriety in the community. It is also noted that there is an absence of formal supports in place to assist the Applicant post-release, although it is accepted that his family would provide informal support to the Applicant in this regard. The Applicant’s church pastor has also offered to provide the Applicant with some form of assistance ‘either physically or emotionally’ post-release, though the specifics of this support are not clear.[131]
[130] Exhibit R1, 275.
[131] Ibid 280.
Paragraph 8.2(3)(d): Whether the non-citizen has re-offended since being formally warned about the consequences of further acts of family violence: The most recent family violence offences were committed in breach of his AVO. The first breach occurred on 25 November 2022, when he was in the presence of his son after consuming alcohol. The second breach was on 17 March 2023, when he offended against his former partner. The Applicant was also in breach of his previous ICO which was imposed on 9 June 2022 for prior family violence offending. The Applicant has therefore re-offended since being formally warned about the consequences of further acts of family violence and the Tribunal takes this into account.
Conclusion on primary consideration two
Having considered the matters identified at paragraph 8.2 of Direction 110, the Tribunal concludes that this primary consideration weighs very heavily in favour of not revoking the mandatory cancellation decision. The Tribunal has attributed this primary consideration heavy weight because of the frequency and increasing seriousness of the Applicant’s offending, the cumulative effect of repeated acts of family violence, and the fact that the Applicant had committed further acts of family violence despite being formally warned about the consequences of further offending.
Primary consideration three: The strength, nature and duration of ties to Australia
Paragraph 8.3 of the Direction provides that decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia. This primary consideration also provides that where consideration is being given to cancel a visa or whether to revoke the mandatory cancellation of the visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Respondent concedes that while this primary consideration weighs in the Applicant’s favour, it is contended that, consistent with the principles in paragraph 5.2 of Direction 110, the seriousness of the Applicant’s conduct and the potential harm if it were repeated outweigh the countervailing considerations regarding the Applicant’s ties to Australia.[132]
[132] Ibid 272 [75].
The Tribunal has considered that the following immediate family members would be impacted by non-revocation decision:
(a)The Applicant’s two adult children: The Applicant has two adult children in Australia who are currently aged 24 and 20 years of age. The Applicant’s daughter has written two statements in support of her father.[133] She stated that her father has been her biggest support and guide.[134] In her most recent statement, she said that their relationship has been and continues to be tight knit. She visits him frequently in immigration detention when she is able to. She said she needs her father for physical, mental and emotional support.[135] She reports this is even more so now she has her own child.[136] She states that her own child is missing out on the love and care from his grandfather. The Applicant’s son is still subject to protection under the AVO. The Applicant’s daughter reports that her brother has tried to reunite with his father.[137] The Tribunal accepts that a non-revocation decision would negatively impact the Applicant’s children and takes this into account. The Tribunal considers that his adult daughter would be more impacted because she is now a mother herself and has stated she would rely on the Applicant to support her and her child. The Tribunal has also taken into account the impact on the Applicant’s grandchild, who is without the support of his grandfather.
(b)The Applicant’s parents: The Applicant’s parents are married and reside in Australia. Each have written letters of support for the Applicant, and the Applicant’s mother has given oral evidence to the Tribunal. The Tribunal accepts that the Applicant’s parents are both suffering from physical ill-health, and that his mother is currently on dialysis. The Tribunal accepts that a non-revocation decision would have a devastating impact on the Applicant’s mother and father given their age and ill-health. The Tribunal accepts that they would not be able to travel to New Zealand to be with their son if he were removed from Australia. The Tribunal accepts that they have offered the Applicant a place to stay if he is released into the community and that they would rely on his physical, emotional and practical support.[138]
(c)The Applicant’s siblings: The Applicant has two adult sisters who reside in Australia. The Tribunal accepts the Applicant’s statement in his Personal Circumstances form that his deportation would adversely affect his sisters and that they would be at a loss without him.[139] The Tribunal does not have statements from the Applicant’s sisters before it but accepts that they would be adversely impacted by a non-revocation decision and has taken this into account.
[133] Ibid 173-5, 277-8.
[134] Ibid 175.
[135] Ibid 278.
[136] Ibid.
[137] Ibid.
[138] Ibid 138.
[139] Ibid 154.
The Tribunal has also considered the strength, nature and duration of the Applicants’ other ties to Australia. The Tribunal notes that the Applicant has stated in his Personal Circumstances form that he has 32 uncles and aunts, 87 nieces and nephews and 41 cousins who reside in Australia.[140] The Tribunal also has a written statement from his adult niece who also gave oral evidence on the Applicant’s behalf.[141] She regards the Applicant as a father-figure, and a trustworthy and honourable part of her family.[142] The Applicant has assisted her by helping to raise her three children, and has provided them with a great amount of support and affection.[143] She also stated that her own children would be profoundly affected by a non-revocation decision.[144] She wrote that she has named her youngest child in his honour, and said that the Applicant’s potential absence from his life means he may never get the chance to meet his namesake or have him as a godfather.[145] She stated that the Applicant’s removal from Australia ‘would severely cripple us emotionally, mentally and financially.’[146] The Tribunal has had regard to the strong ties the Applicant has with his nieces and nephews and his grandnieces and grandnephews. The Tribunal has had regard to the evidence that the Applicant used to reside in a household with his adult niece, her three children and his elderly parents. The Tribunal acknowledges that the Applicant contributed in a practical, financial and emotionally supportive way to the household.[147]
[140] Ibid.
[141] Ibid 176-9.
[142] Ibid 177.
[143] Ibid.
[144] Ibid 178.
[145] Ibid.
[146] Ibid 179.
[147] Ibid 271 [69], 148.
The Tribunal has also considered the Applicant’s other ties that he has formed since he first arrived in Australia as a five-year-old.[148] The Applicant attended primary and secondary schooling in Australia through to Year 10 and completed vocational training in Hospitality.[149] He has maintained a steady employment record since 2016 as a chef in various venues, and more recently as a machine operator.[150] The Tribunal accepts that that the Applicant has formed strong family and social links with Australia, through his family, his schooling, and consistent work history.
[148] Ibid 190.
[149] Ibid 156.
[150] Ibid.
The Tribunal has considered the Applicant’s ties to the community through his participation in his church, who have offered to provide support to the Applicant once released.[151]
[151] Ibid 280.
The Tribunal notes that paragraph 8.3(2)(a) provides that decision-makers must have regard to how long the non-citizen has resided in Australia, including whether they arrived as a young child. The Tribunal acknowledges that the Applicant has resided in Australia for 38 years and has resided here since he was five years old.
However, the Tribunal notes that the Applicant has an extensive criminal history dating back to March 2000, when the Applicant was 18 years of age.[152] He has been convicted in the past of driving offences, various assaults on police officers, and family violence offending. So, whilst the Applicant may have been contributing to Australia through his employment during this period, he was also offending and was subject to various court orders and terms of imprisonment during most of this period.
[152] Ibid 74.
Conclusion on primary consideration three
On balance the Tribunal accepts that this primary consideration does weigh in favour of revoking the mandatory cancellation decision. The Tribunal has given this primary consideration substantial weight in the Applicant’s favour given the strength, nature and duration of his familial ties to Australia.
However, the Tribunal considers that the weight attributed to primary consideration one outweighs the weight given to this primary consideration. That is because of the very serious nature of the Applicant’s offending. Paragraph 7(2) of Direction 110 states that primary consideration one is generally to be given greater weight than the other primary considerations and the Tribunal has done so in the Applicant’s case.
Primary consideration four: Best interests of minor children in Australia affected by the decision
Paragraph 8.4(1) of Direction 110 provides that decision-makers must make a determination about whether cancellation or refusal under s 501, or non-revocation under s 501CA, is, or is not, in the best interests of a child affected by the decision.
This consideration only applies if the child is, or would be, under 18 years old at the time the decision is made.[153] 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.[154]
[153] Direction 110, 8.4(2).
[154] Ibid 8.4(3).
Paragraph 8.4(4) identifies certain factors that must be considered where relevant.
The Applicant has one minor grandchild, three nieces and nephews, and four great nieces and nephews in Australia who would be affected by a non-revocation decision. The Tribunal has given each of these minor children individual consideration to the extent that their interests may differ.
The Applicant’s minor grandchild: The Applicant’s minor grandchild was recently born to his eldest daughter whilst the Applicant was in immigration detention. The Applicant’s daughter gave evidence to the Tribunal that the Applicant has met his grandchild in immigration detention. She also gave evidence that she stays in regular contact with the Applicant through phone calls and FaceTime. The Tribunal has had regard to the nature and duration of the relationship which has been limited due to the Applicant being detained. However, the Tribunal accepts the Applicant’s daughter’s evidence that she hopes her child develops a strong bond with his grandfather. Although the relationship is non-parental, the Tribunal gives the nature and duration of this relationship substantial weight in the Applicant’s favour (paragraph 8.4(4)(a)). The Tribunal has considered the extent to which the Applicant is likely to play a positive role in the child’s future given the length of time until the child turns 18 (paragraph 8.4(4)(b)). Any likely future conduct would have a negative impact on the grandchild as it would likely result in future incarceration and separation (paragraph 8.4(4)(c)). The Applicant has had in person visits in detention with his grandchild but has otherwise maintained electronic communication with him. The Tribunal accepts that any future separation would impact the Applicant’s grandchild as the Applicant’s daughter has given evidence that she will be unable to afford to travel to New Zealand consistently to visit her father (paragraph 8.4(4)(d)).[155] The Tribunal notes that the grandchild already has persons in their life that fulfill a parental role, being the child’s mother and father (paragraph 8.4(4)(e)). The Tribunal accepts the Applicant’s daughter’s views that her child is missing out on love, care and nurturing from his grandfather (paragraph 8.4(4)(f)). There is no evidence that the child has been exposed to family violence or suffered any physical or emotional trauma arising from the non-citizen’s conduct (paragraph 8.4(4)(g) and (h)).
[155] Exhibit R1, 278.
In conclusion, the Tribunal considers that a non-revocation decision would not be in the Applicant’s grandchild’s best interests and gives this substantial weight in the Applicant’s favour.
The Applicant’s sister has three children, being the Applicant’s two nieces and one nephew. The best interests of each of these children has been considered below.
Eldest nephew: This child is currently 17 years of age and resides in Australia. The Applicant reports that they have a strong relationship.[156] The Applicant said they share common sporting interests, and he has stayed with the Applicant on weekends. The Applicant said before being incarcerated they would talk almost daily.[157] The Tribunal accepts that the nature and duration of this relationship is close and that there has been meaningful contact in the past, despite the relationship being non-parental. The Tribunal gives this some weight in the Applicant’s favour (paragraph 8.4(4)(a)). The Tribunal notes that the eldest nephew is close to turning 18 so gives this factor limited weight (paragraph 8.4(4)(b)). The Applicant stated that whilst he was incarcerated, he avoided speaking to his eldest nephew directly because he felt a sense of shame and embarrassment. The Applicant feels regret at not being there for his eldest nephew when he needed support. The Tribunal considers that the Applicant’s prior conduct has negatively impacted the eldest nephew, as it resulted in physical separation and a period of time where the Applicant avoided speaking to his nephew (paragraph 8.4(4)(c)). The Applicant states that communication has never been an issue for them as they are connected on social media and have maintained contact through video calls and messaging whilst the Applicant has been in detention. The Tribunal considers that this level of contact could be maintained if the Applicant is removed from Australia. The Tribunal otherwise accepts that future separation would negatively impact the eldest nephew (paragraph 8.4(4)(d)). The eldest nephew already has other persons in his life who fulfill a parental role (paragraph 8.4(4)(e)). The Applicant wrote in his Personal Circumstances form that his nephew would be devastated if the Applicant were not allowed to remain in Australia. Otherwise, the views of the eldest nephew are not known as there is no direct evidence from the child or his parents (paragraph 8.4(4)(f)). There is no evidence that the child has been exposed to family violence or suffered any physical or emotional trauma arising from the non-citizen’s conduct (paragraph 8.4(4)(g) and (h)).
[156] Ibid 151.
[157] Ibid.

The Tribunal considers that a non-revocation decision would not be in the Applicant’s eldest nephew’s best interests and gives this some weight in the Applicant’s favour. The Tribunal notes that the eldest nephew will shortly turn 18 years of age and has taken this into account in the balancing exercise.
Eldest niece: The Applicant’s eldest niece is currently 15 years of age and resides in Australia.[158] The Applicant states that his eldest niece is his goddaughter. The Applicant states that they have a close relationship and share sporting interests.[159] Although the relationship is non-parental, the Tribunal gives this some weight in the Applicant’s favour (paragraph 8.4(4)(a)). The Tribunal has considered the extent to which the Applicant is likely to play a positive role in her future, noting that the child is in her mid-teens and has people in her life that fulfill a parental role (paragraph 8.4(4)(b)). The Applicant stated that prior to his incarceration, the eldest niece would send messages to the Applicant two to three times a week. The Tribunal considers that the Applicant’s prior conduct and any likely future conduct has had and will likely have a negative impact on the child (paragraph 8.4(4)(c)). The Applicant stated that he would often speak to her via social media. He states that he longs to apologise to her as he felt he had let her down since being incarcerated. The Tribunal considers that the Applicant could continue to maintain contact through electronic means, though accepts that any future separation would negatively impact the eldest niece (paragraph 8.4(4)(d)). The eldest niece already has other people in her life who fulfill a parental role (paragraph 8.4(4)(e)). The views of the child are not known (paragraph 8.4(4)(f)). There is no evidence that the child has been exposed to family violence or suffered any physical or emotional trauma arising from the non-citizen’s conduct (paragraph 8.4(4)(g) and (h)).
[158] Ibid 147.
[159] Ibid 152.
The Tribunal considers that a non-revocation decision would not be in the Applicant’s eldest niece’s best interests and gives this some weight in the Applicant’s favour. The Tribunal notes the relationship is non-parental and therefore this weighs less in the overall balancing exercise.
Youngest niece: The Applicant’s youngest niece is currently 5 years of age and resides in Australia.[160] The Applicant states that the youngest of his sister’s three children holds a special place in his heart.[161] The Tribunal accepts that the nature and duration of this relationship of uncle and niece is loving. Despite the relationship being non-parental, the Tribunal accepts that this factor weighs in the Applicant’s favour (paragraph 8.4(4)(a)). The Tribunal has considered the extent to which the Applicant is likely to play a positive role in her future given the length of time until she turns 18 (paragraph 8.4(4)(b)). The Applicant stated that his youngest niece was only three years of age when he was incarcerated, and that missing more of her life saddens him profoundly.[162] The Tribunal considers that the Applicant’s prior conduct and any likely future conduct has had and will likely have a negative impact on the child as it would result in further separation (paragraph 8.4(4)(c)). There is no evidence that the youngest niece has visited the Applicant in immigration detention. The Tribunal considers that they could maintain contact through electronic means (paragraph 8.4(4)(d)). The youngest niece already has other people in her life who fulfill a parental role (paragraph 8.4(4)(e)). The views of the child are not known (paragraph 8.4(4)(f)). There is no evidence that the child has been exposed to family violence or suffered any physical or emotional trauma arising from the non-citizen’s conduct (paragraph 8.4(4)(g) and (h)).
[160] Ibid 147.
[161] Ibid 152.
[162] Ibid 153.
The Tribunal considers that a non-revocation decision would not be in the Applicant’s youngest niece’s best interests and gives this some weight in the Applicant’s favour. The Tribunal notes the relationship is non-parental and therefore this weighs less in the overall balancing exercise.
The Applicant has two grandnephews and two grandnieces that reside in Australia and are under the age of 18. The Tribunal has considered the best interests of each of these children below.
Eldest grandniece: The Applicant’s eldest grandniece is currently 11 years of age and resides in Australia.[163] The Applicant wrote that he treats his niece like his own child and has a loving bond with her child (being the eldest grandniece).[164] The Tribunal accepts that the nature of this relationship is close, and that the Applicant and the eldest grandniece have a special bond. The Applicant used to reside in the same household as this child. Despite the fact that the relationship is non-parental, the Tribunal accepts that this factor weighs in the Applicant’s favour (paragraph 8.4(4)(a)). The Tribunal has considered the extent to which the Applicant is likely to play a positive role in her future given the length of time until she turns 18 (paragraph 8.4(4)(b)). The Tribunal considers that the Applicant’s prior conduct and any likely future conduct has had and will have a negative impact on the eldest grandniece, as the Applicant wrote that they used to have a close bond, and that now they are physically separated due to the Applicant’s offending (paragraph 8.4(4)(c)).[165] The Applicant stated that the pair have phone calls and video conversations which reinforce their close bond, even though they are currently separated.[166] The Tribunal considers that this contact could be maintained if the Applicant were removed to New Zealand, but it is accepted that physical separation would negatively impact this child (paragraph 8.4(4)(d)). The eldest grandniece resides with her mother who fulfills a parental role in her life. The Tribunal does accept however that, according to the Applicant’s niece, the Applicant played a role in supporting her to raise her children prior to his incarceration (paragraph 8.4(4)(e)).[167] Although the views of the eldest grandniece are not known, the Applicant’s niece stated that her children love the Applicant and respect him greatly (paragraph 8.4(4)(f)). There is no evidence that the child has been exposed to family violence or suffered any physical or emotional trauma arising from the non-citizen’s conduct (paragraph 8.4(4)(g) and (h)).
[163] Ibid 145.
[164] Ibid 149.
[165] Ibid.
[166] Ibid.
[167] Ibid 177.
The Tribunal considers that a non-revocation decision would not be in this child’s best interests and gives this some weight in the Applicant’s favour. The Tribunal notes the relationship is non-parental, but the Applicant did formerly reside in the same household as the child. The Tribunal gives this some weight in the Applicant’s favour.
Eldest grandnephew: The Applicant’s eldest grandnephew is currently nine years of age and resides in Australia.[168] The Applicant stated that they enjoy spending time together and engaging in a variety of activities such as watching movies, cooking, shopping, and trips to the park.[169] The Tribunal accepts that the nature of this relationship is close. The Applicant used to reside in the same household as this child. Despite the fact that the relationship is non-parental, the Tribunal considers that this factor weighs in the Applicant’s favour (paragraph 8.4(4)(a)). The Tribunal has considered the extent to which the Applicant is likely to play a positive role in his future given the length of time until he turns 18 (paragraph 8.4(4)(b)). The Tribunal considers that the Applicant’s prior conduct and any likely future conduct has had and will have a negative impact on this child, as the Applicant wrote that they used to have a close bond, and the child always asks when the Applicant will be returning home (paragraph 8.4(4)(c)).[170] The eldest grandnephew has not visited the Applicant in immigration detention, but the Applicant has spoken with his eldest grandnephew over the phone. It is accepted that future separation would have a negative impact on this child (paragraph 8.4(4)(d)). The eldest grandnephew resides with his mother who fulfills a parental role in his life. The Tribunal does accept however that, according to the Applicant’s niece (being the child’s mother), the Applicant played a role in supporting her to raise her children prior to his incarceration (paragraph 8.4(4)(e)). Although the views of the eldest grandnephew are not known, the Applicant’s niece stated that her children love the Applicant and respect him greatly (paragraph 8.4(4)(f)). There is no evidence that the child has been exposed to family violence or suffered any physical or emotional trauma arising from the non-citizen’s conduct (paragraph 8.4(4)(g) and (h)).
[168] Ibid 149.
[169] Ibid 150.
[170] Ibid.
The Tribunal considers that a non-revocation decision would not be in this child’s best interests and gives this some weight in the Applicant’s favour. The Tribunal notes the relationship is non-parental, but the Applicant did previously reside in the same household as the child. The Tribunal gives this some weight in the Applicant’s favour.
Youngest grandniece: The Applicant’s youngest grandniece is currently seven years of age and resides in Australia.[171] The Applicant stated the pair share a close and playful relationship.[172] The Tribunal notes that the Applicant used to reside in the same household as this child. Although the relationship is non-parental, the Tribunal accepts that the pair have a close bond and has taken this into account (paragraph 8.4(4)(a)). The Tribunal has considered the extent to which the Applicant is likely to play a positive role in her future given the length of time until she turns 18 (paragraph 8.4(4)(b)). The Tribunal considers that the Applicant’s prior conduct and any likely future conduct has had and will have a negative impact on this child as it resulted in physical separation (paragraph 8.4(4)(c)). The youngest grandniece (like his other grandnieces and grandnephews) has not visited the Applicant in immigration detention. It is accepted that future separation would have a negative impact on this child (paragraph 8.4(4)(d)). This child resides with her mother who fulfills a parental role in her life. The Tribunal does accept however that, according to the Applicant’s niece (the child’s mother), the Applicant played a role in supporting her to raise her children prior to his incarceration (paragraph 8.4(4)(e)). Although the views of the youngest grandniece are not known, the Applicant’s niece stated that her children love the Applicant and respect him greatly (paragraph 8.4(4)(f)). There is no evidence that the child has been exposed to family violence or suffered any physical or emotional trauma arising from the non-citizen’s conduct (paragraph 8.4(4)(g) and (h)).
[171] Ibid 149.
[172] Ibid 150.
The Tribunal considers that a non-revocation decision would not be in this child’s best interests and gives this some weight in the Applicant’s favour. The Tribunal notes the relationship is non-parental, but the Applicant did reside in the same household as the child. The Tribunal gives this some weight in the Applicant’s favour.
Youngest grandnephew: The Applicant’s youngest grandnephew is aged one and resides in Australia.[173] This child was born whilst the Applicant was incarcerated, which the Applicant describes as ‘one of the hardest things I’ve had to face.’[174] This child is the Applicant’s godson, and the Applicant wants to build a deep and nurturing relationship with him.[175] Although the relationship is non-parental, the Tribunal accepts that the Applicant shares a close bond with the child’s mother and the child’s siblings and is keen to develop his relationship with this child. The Tribunal gives this factor some weight in the Applicant’s favour. (paragraph 8.4(4)(a)). The Tribunal has considered the extent to which the Applicant is likely to play a positive role in his future given the length of time until he turns 18 (paragraph 8.4(4)(b)). This child was born whilst the Applicant was incarcerated so the Applicant’s conduct has resulted in physical separation for the entirety of this child’s life (paragraph 8.4(4)(c)). It is accepted that future separation would negatively impact this child as the Applicant would not be able to build the same close bond with this child, as he has with the child’s siblings (paragraph 8.4(4)(d)). This child resides with his mother who fulfills a parental role in his life (paragraph 8.4(4)(e)). The Tribunal notes that this child is still an infant but nonetheless the Tribunal has had regard to the Applicant’s niece’s view that the Applicant’s absence ‘would cause a significant void in our family fabric’ (paragraph 8.4(4)(f)).[176] There is no evidence that the child has been exposed to family violence or suffered any physical or emotional trauma arising from the non-citizen’s conduct (paragraph 8.4(4)(g) and (h)).
[173] Ibid 149.
[174] Ibid 151.
[175] Ibid.
[176] Ibid 178.
The Tribunal considers that a non-revocation decision would not be in this child’s best interests and gives this some weight in the Applicant’s favour. The Tribunal notes however the relationship is non-parental, and this child was born while the Applicant was incarcerated so the Applicant has been separated from this child his entire life. The Tribunal has therefore moderated the weight afforded to this consideration.
Conclusion on primary consideration four
The Tribunal accepts that the Applicant has a close bond with each of the minor children as detailed above. The Tribunal notes that the Applicant used to live in the same household with his niece and three of her minor children. The Tribunal accepts that the Applicant provided practical, emotional and financial support to these children.
Having considered the best interests of each of these children individually, the Tribunal considers that this primary consideration as a whole weighs substantially in favour of revoking the mandatory cancellation decision.
However, the Tribunal considers that the weight attributed to primary consideration one outweighs the weight attributed to this primary consideration. The Tribunal notes that paragraph 7(2) of Direction 110 states that primary consideration one is generally to be given greater weight than other primary considerations. The Tribunal has applied that here due to the very serious nature of the Applicant’s offending.
Primary consideration five: Expectations of the Australian community
Paragraph 8.5 deals with the expectations of the Australian community. It states:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
a) acts of family violence; or
b) causing a person to enter into, or being party to (other than being a victim                    of), a forced marriage;
c) commission of serious crimes against women, children or other vulnerable        members of the community such as the elderly or disabled; in this context,   'serious crimes' include crimes of a violent or sexual nature, as well as other   serious crimes against the elderly or other vulnerable persons in the form of   fraud, extortion, financial abuse/material exploitation or neglect;
d) commission of crimes against government representatives or officials due                    to the position they hold, or in the performance of their duties; or
e) involvement or reasonably suspected involvement in human trafficking or          people smuggling, or in crimes that are of serious international concern   including, but not limited to, war crimes, crimes against humanity and   slavery; or
f) worker exploitation.
(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.
This primary consideration requires decision-makers to consider the expectations of the Australian community as articulated by the Australian Government, without independently assessing the community’s expectations in a particular case. This ‘deemed community expectation’ must be understood and applied normatively.[177]
[177] FYBR v Minister for Home Affairs (2019) 272 FCR 454 [91].
The Respondent contends that this primary consideration should weigh very heavily against revocation because the Applicant has committed offences which raise serious character concerns according to paragraph 8.5(2) of Direction 110 including acts of family violence (paragraph 8.5(2)(a)), serious crimes against women (paragraph 8.5(2)(c)), and the commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties (paragraph 8.5(2)(d)).[178]
[178] Exhibit R1, 273 [83]-[84].
The Tribunal notes that the community’s expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[179]
[179] Direction 110, 8.5(3).
Conclusion on primary consideration five
The Tribunal considers that this is a case where non-revocation is appropriate because of the nature of the character concerns being acts of family violence, commission of serious crimes against women, and commissions of crimes against government officials or officials (being police officers). The Applicant engaged in very serious conduct in breach of the community’s expectations. The Australian community would expect such a person to not be granted or continue to hold a visa.
The Tribunal has decided that this primary consideration weighs very heavily in favour of not revoking the mandatory cancellation decision.
OTHER CONSIDERATIONS
Other consideration one: Legal consequences of the decision
Paragraph 9.1 provides that decision-makers should be mindful that unlawful non-citizens are, in accordance with s 198, liable for removal from Australia as soon as reasonably practicable in the circumstances specified in that section. This other consideration considers non-citizens who are covered by a protection finding (as defined in s 197C of the Act), and those who are not.
The Applicant is not covered by a protection finding. The Applicant has not made any claims relevant to this other consideration, nor is there any evidence that any such claims arise in this case.
The Tribunal acknowledges that the Applicant will be subject to the intended legal consequences of a non-revocation decision, that is, he will be liable for removal from Australia as soon as is reasonably practicable and will be subject to a period in immigration detention under ss 189 and 198 of the Act.
This other consideration is given very limited weight in the Applicant’s favour.
Other consideration two: Extent of impediments if removed
Paragraph 9.2 of the Direction states that decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country).

Decision-makers are to have regard to the non-citizen’s age and health, whether there are substantial language or cultural barriers, and any social, medical and/or economic support available to them in that country.
The Applicant is currently 44 years of age and is in relatively good health. There are no substantial language or cultural barriers known that would present an impediment to removal. The Tribunal considers that the Applicant would have access to the same social, medical and/or economic support available to citizens of New Zealand.
The Applicant’s mother gave evidence to the Tribunal that her husband’s family still resides in New Zealand, even though her family have now moved to Australia.
The Tribunal accepts that the Applicant has grown up in Australia and this is where the majority of his family resides. However, the Tribunal finds that whilst the Applicant may face some initial practical difficulties upon relocation, the Applicant does have family that reside in New Zealand on his father’s side. Further, the Applicant was previously employed as a chef, and most recently employed as a machine operator, which means that the Applicant has some vocational skills which would assist him to obtain employment in New Zealand.
The Tribunal also notes that the Applicant is motivated by a strong desire to rehabilitate his life and seek the professional help he needs to maintain his sobriety and repair the relationships with his family. The Applicant has not provided any evidence of any formal counselling or treatment options that he proposes to undertake in Australia that are specific to his needs, that would not be available elsewhere. In other words, if the Applicant were to seek treatment and counselling, he will likely be able to access the same level of treatment in New Zealand.
This other consideration is given limited weight in the Applicant’s favour.
Other consideration three: Impact on Australian business interests
Paragraph 9.3(1) provides that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia.
There are no known impacts on Australian business interests to consider under this other consideration, nor has the Applicant raised any. It is given neutral weight in the balancing exercise.
CONCLUSION
The Applicant has failed the character test according to s 501(6)(a) of the Act. This means that the Applicant cannot rely on s 501CA(4)(b)(i) as a basis to revoke the mandatory cancellation of his visa.
The question the Tribunal therefore needs to decide is whether it is satisfied there is another reason why the original cancellation decision should be revoked under s 501CA(4)(b)(ii) of the Act. In determining this question, the Tribunal has considered the Applicant’s representations, and the considerations and factors set out in Direction 110. The Tribunal is required to carry out an evaluative exercise of weighing and balancing the various considerations in order to determine whether it is satisfied that there is ‘another reason’ to revoke the cancellation decision.[180]
[180] CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 [27]-[28].
The Tribunal has also had regard to the principles at paragraph 5.2 of Direction 110. Relevantly, the Tribunal has noted that the safety of the Australian community is the highest priority of the Australian Government.[181] The Tribunal has also noted that the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct, that raises serious character concerns.[182] The Tribunal considers the Applicant’s offending as very serious. It involved multiple instances of family violence perpetrated against the same victim. It was violent offending and occurred (on two occasions) in the presence of the Applicant’s youngest child. The Tribunal acknowledges that the Applicant has lived in Australia from a very young age, and notes that the community may therefore afford a higher degree of tolerance of criminal or other serious conduct.[183] However, the Tribunal is of the view that this level of tolerance would be significantly moderated given the very serious nature of the Applicant’s family violence offending.
[181] Direction 110, 5.2(2).
[182] Ibid 5.2(4).
[183] Ibid 5.2(6).
The Tribunal has also had regard to the principle at paragraph 5.2(7) of Direction 110 and considers that the nature of the Applicant’s conduct, and the harm that would be caused if it were to be repeated is so serious that even strong countervailing considerations, are not sufficient to justify revoking the mandatory cancellation in the Applicant’s case,
The Tribunal has determined that primary considerations one, two and five weigh very heavily in favour of not revoking the cancellation decision. The Tribunal has found that primary considerations three and four weigh substantially in the Applicant’s favour. The Tribunal also gave some limited weight in the Applicant’s favour to other consideration one and two. The Tribunal afforded other consideration three neutral weight. The Tribunal has also given greater weight to the primary considerations than the other considerations.[184]
[184] Ibid 7(2).
As permitted by paragraph 7(2) of the Direction, the Tribunal has given greater weight to primary consideration one given the very serious nature of the Applicant’s offending. The Tribunal considers that primary consideration one outweighs the weight attributed to the primary and other considerations that are in the Applicant’s favour.
Having weighed all the relevant considerations individually and cumulatively, the Tribunal is not satisfied that there is another reason to revoke the original decision. It follows that the decision under review is therefore affirmed.
DECISION
The Tribunal affirms the decision under review.

Date of hearing: 7 August 2025

Applicant: Self-represented

Advocate for the Respondent: Mr Simon Knuckey

Solicitors for the Respondent: HWL Ebsworth

Date of hearing:	7 August 2025
Applicant:	Self-represented
Advocate for the Respondent:	Mr Simon Knuckey
Solicitors for the Respondent:	HWL Ebsworth