Uliigaloa and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 3157

Uliigaloa and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 3157 (5 September 2024)
Division:GENERAL DIVISION
File Number(s):2024/3929
Re:Mosese Uliigaloa
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member J Cipolla
Date:5 September 2024
Place:Sydney

The Tribunal affirms the Reviewable Decision.
...................[SGD]...............................................
Senior Member J Cipolla
CATCHWORDS
MIGRATION – cancellation of Applicant’s Class BS Subclass 801 Partner visa – substantial criminal record – family violence – alcohol abuse – protection of the Australian community – decision affirmed
LEGISLATION
Migration Act 1958 (Cth)
Crimes (Sentencing and Procedure) Act 1999 (NSW)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
Fasi and Minister for Home Affairs (Migration) [2018] AATA 4049
NQKB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4054
Pavey and Minister for Home Affairs [2019] AATA 4198
Plaintiff M1 [2022] HCA 17
SECONDARY MATERIALS
Corrective Services NSW, ‘Conditional Release Orders’ (Web Page, 11 May 2023) < No. 110, Visa cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA paras 5.2(2), 7(2), 8.1.1(1), 8.1.1(1)(a)-(i), 8.1.1(1)(a)(ii), 8.1.1(a)(iii), 8.1.1(1)(b)(i), 8.1.2(1)-(2), 8.2(1), 8.2(3), 8.2(3)(a)-(d), 8.3(2), 8.3(2)(a)-(b), 8.4(1)-(3), 8.4(4)(a)-(h), 8.5(1)-(4), 9(1)
Judicial Commission of New South Wales, ‘Conditional Release Orders (CRO’s)’ Sentencing Bench Book (Web Page, August 2023)
< FOR DECISION
Senior Member J Cipolla
5 September 2024
BACKGROUND

Mr Mosese Uliigaloa (the Applicant) is 37 years old, he was born in Fiji, and is a citizen of Fiji.
With respect to the Applicants Australian immigration history, the evidence before the Tribunal indicates that he first arrived in Australia on 29 January 2016. He departed Australia on 12 February 2016, and returned to Australia again on 5 November 2016. He again departed Australia on 5 February 2017, before returning to Australia on 28 February 2017, and the evidence before the Tribunal indicates that the Applicant has not departed Australia since that time.[1]
[1] Exhibit 5 – Paragraph [4].
With respect to the Applicant’s life in Fiji he provided the following evidence. His Father is a Pastor, and as a consequence, he was raised in a Christian environment. When the Applicant was 13, his mother won the US Green Card Lottery and she travelled to the United States. The Applicant’s father followed his wife some 4 years later when the Applicant was 17 and the Applicant and his brother were left to the care of relatives in Fiji. They never joined their parents in the United States.
The Applicant gave evidence that his parents have continually lived in the United States since their respective departures from Fiji and the Applicant expressed strong feelings of abandonment, which he says led to him getting in with the ‘wrong crowd’ as a young man and partaking in the consumption of alcohol from about the age of about 17. The Applicant gave evidence that he started with methylated spirits and home brews and progressed to other forms of alcohol over time, developing a significant drinking habit from a young age. The Applicant advised that at this age he would drink approximately every 3 days.
The Applicant gave evidence that from the age of 17 until the time that he came to Australia from Fiji that his consumption of alcohol was substantial.
The evidence before the Tribunal and provided by the Applicant and his estranged wife at hearing indicates that he brought his habit of significant alcohol consumption to Australia.
The Applicant gave evidence that since coming to Australia he drank a lot during the week, and particularly on the weekends, because beer was cheap, and the money that he made from his work in Australia meant that he could purchase alcohol freely.
A graphic example of the extent of his drinking habit in Australia is illustrated by the Applicant’s evidence at hearing with respect to his weight gain within three months of arriving in Australia. The Applicant advised that when he first arrived in Australia as the holder of a Partner visa, he weighed 85 kilograms. Three months later his weight had ballooned to 135 kilograms. The Applicant gave evidence that this weight gain was attributable to alcohol consumption and the Applicant described his newly found socio-economic circumstances and the ease in which alcohol could be obtained in Australia as factors that contributed to this.
The evidence before the Tribunal indicates that the Applicant met his estranged wife when she was in Fiji, the Applicant noted she had been selling protein powder on Facebook and that they communicated online for a number of years before making a commitment to a more permanent relationship going forward.
The evidence indicates that the Applicant’s wife had been involved in a previous marital relationship and that there are two children from that relationship. After the Applicant and his estranged wife married, and the Applicant relocated from Fiji to Australia, that those children initially came to live with them. The evidence at hearing indicated that these children were returned by their mother to their natural father after a period of time as a consequence of the Applicant’s excessive drinking behaviours.
Evidence adduced at the review hearing indicated that the Applicant turned to alcohol to deal with personal issues when he was in Fiji. The Applicant gave evidence that he believed that alcohol was a solution to his personal issues, however in recent times he had formed the view that it is not.
The evidence indicates that the Applicant was granted a Class BS Subclass 801 Partner visa on 23 October 2019,[2] on the basis of his marriage to his estranged wife, an Australian citizen.
[2] Exhibit 7 Page 54.
The evidence provided to the Tribunal at hearing indicates that the Applicants estranged wife miscarried prior to the birth of their two children. The Applicant gave evidence that the miscarriage affected him a lot, and also affected his estranged wife who he described was ‘very sad’ after the miscarriage. The Applicant stated that he used alcohol to take his mind off what had happened. The Applicant gave further evidence at hearing that he did not address his excessive drinking until he was taken into custody with respect to his offending. The Applicant gave evidence that since that time he had been attending a number of programs addressing both his alcohol abuse and family violence.
The Applicant and his estranged wife have two children, a son aged 7 and a daughter aged 3.
THE APPLICANT’S CRIMINAL HISTORY IN AUSTRALIA
The evidence before the Tribunal indicates that the Applicant, since residing in Australia, has acquired a significant criminal record.
The Tribunal has before it the New South Wales Police Force Criminal History Bail Report with respect to the Applicant dated 5 July 2024.
With respect to the Applicant’s offending history the report indicates the following.
On 23 June 2021, the Applicant was convicted in the Port Kembla Local Court of drink-driving with a high range prescribed concentration of alcohol. The Applicant was fined $600. The Applicant was the subject of Community Correction Order (‘CCO’) for 12 months, commencing on 23 June 2021, and concluding on 22 June 2022. The Applicant was disqualified from driving for 18 months.
The Applicant’s estranged wife was asked by the Tribunal at hearing whether the high range prescribed concentration of alcohol offence in June 2021 curtailed the Applicant’s drinking, and she advised that it did not. She advised the Tribunal that the Applicant’s disqualification from driving for 18 months created significant issues within her family and put direct pressure on her to drive the Applicant to work and to be responsible for transportation.
On 22 December 2021, the Applicant was convicted in the Port Kembla Local Court of Common Assault-Domestic Violence (DV)-T2. The Applicant was the subject of a conditional release order commencing on 22 December 2021 and concluding on 21 December 2022.
Mr Gao as representative for the Minister elicited evidence from the Applicant at the review hearing with respect to this offence. Mr Gao asked the Applicant whether he believed it was culturally appropriate for men to hit women. The Applicant stated that he had seen this happen in Fiji but that in Australia it should not happen and if there is a problem, they need to face the problem together.” The Applicant advised that he had learnt this on his journey from incarceration in prison to immigration detention and that after he was incarcerated he learnt that hitting a woman was not okay.
Mr Gao made direct reference to the Applicant’s offending on 22 December 2021. Mr Gao noted that the police records with respect to this offending indicated that the Applicant grabbed his estranged wife’s throat for 20 seconds and then took her mobile phone from her to stop her calling 000. The Applicant confirmed this. The police facts indicated that the outburst occurred when the Applicants estranged wife would not take him to work because she was taking their children to a birthday party. Mr Gao confirmed with the Applicant that he was reliant on his wife to take him to work because of his high range prescribed concentration of alcohol conviction and the loss of his license for 18 months.
Mr Gao also elicited evidence with respect to this offending and asked the Applicant whether an apprehended violence order (‘AVO’) was put in place, and he confirmed it was. The Applicant stated that it was a type 1 AVO that allowed him to live with his family for two years.
Mr Gao asked the Applicant what he learnt after the court proceedings for this domestic violence offence and the imposition of an AVO. The Applicant stated that he learnt that he did not have the skill set to manage his relationship and that he needed mentors to teach him these things, which he did not learn until he was incarcerated. Mr Gao asked the Applicant whether at the time of this specific offending he was affected by alcohol, the Applicant stated that he was affected the day before the offending but doesn’t think he was on the day of the offending. However, he could have been suffering the lingering affects from the day prior.
Mr Gao took evidence from the Applicants estranged wife with respect to the offending in 2021. The witness confirmed that the Applicant grabbed her neck for 20 seconds and took her mobile phone. Mr Gao noted that after this incident occurred the witness decided to maintain a relationship with the Applicant. The witness stated that he had a difficult upbringing as a child, also with his cultural issues it meant that she found it difficult to walk away and thought that they would be able to overcome their issues for the children’s sake. She also made transparent that when a person is drunk it impacts their behaviour. Mr Gao asked the witness whether she and the Applicant had a conversation about the incident in 2021, and she advised that they did talk about it, however the Applicant had no family support in Australia, and she had limited family support. She advised that the Applicant apologised and expressed his regrets after the offending.
On 4 May 2023, the Applicant was convicted in the Wollongong Local Court of the offence of driving whilst licence cancelled. At the time the Applicant was pulled over by police he produced a Fijian drivers licence. Mr Gao elicited evidence at hearing from the Applicant with respect to this offence. The Applicant stated that he was “being cheeky” with the police and that he was trying to evade the police as he knew that his licence had been disqualified. As a result of this offence the Applicant was the subject of a Section 10A order. A Section 10A refers to a section of the Crimes (Sentencing and Procedure) Act 1999 (NSW) which allows a Magistrate to find a person guilty of an offence, record a conviction and order that the relevant charge be dismissed without further penalty. The Applicant was the subject of a further disqualification from driving for six months commencing 4 May 2023.
On 6 June 2023, the Applicant was convicted in the Sutherland Local Court of contravene prohibition/restriction in Apprehended Violence Order (Domestic) offending that occurred on 6 March 2023. Additionally, on 6 June 2023, the Applicant was also convicted of a further and more egregious family violence offence, namely stalk/intimidate intend fear physical harm (Domestic)-T2. On 6 June 2023, the Applicant was also convicted of the offence of reckless wounding (Domestic Violence)-T1. As a consequence of these offences the Applicant was sentenced to an aggregate period of 16 months imprisonment commencing on 7 March 2023, concluding on 6 July 2024, with a ten month non-parole period. The Applicant dissatisfied with the sentence and lodged a severity appeal with the District Court of New South Wales.
On 7 September 2023, the Applicant’s severity appeal was heard in the District Court of New South Wales. The appeal was allowed in part. The Applicant’s period of imprisonment remained 16 months commencing on 7 March 2023 and concluding on 6 July 2024, however, the non-parole period was reduced by 2 months to 8 months commencing on 7 March 2023 and concluding on 6 November 2023.
On 27 November 2023, the Applicant was convicted in the Fairfield Local Court with respect to two offences of contravene prohibition/restriction in AVO (Domestic). These charges arose as a consequence of the Applicant contacting his former wife in breach of the AVO that was put in place on 19 June 2023 and remains valid until 5 June 2025. The Applicants contact with his estranged wife was via emails sent to her whilst he was in Villawood Detention Centre in breach of the no contact requirements of the AVO. As a consequence, the Applicant was subject to a conditional release order conviction of six months commencing on 27 November 2023 and concluding on 26 May 2024.
The Applicant provided evidence at hearing that he had sought assistance from SERCO officers in detention about the prospect of contacting his wife whilst he was in immigration detention. The Applicant advised that he was unaware of the need to seek an amendment of the AVO before he could make contact (leading to a breach of his AVO) and advised that he was ignorant of this because he was not a lawyer.
Mr Gao suggested that the Applicant’s credibility with respect to this evidence was tainted by virtue of a document found at G10 page 99 of the G documents, a statement of the Applicant dated 24 October 2023. At page 99 of that document the Applicant stated that “my biggest fear lies when I reach Villawood because it will take 3 months to amend the current AVO conditions as my son is already struggling mentally and not been able to talk to me and physically see me.”
As a consequence of the Applicant’s offending history and subsequent convictions, on 19 September 2023 his Class BS Subclass 801 Partner visa was cancelled under s.501(3A) of the Migration Act, and the Applicant was invited to make submissions with respect to the revocation of the cancellation. The Applicant duly provided representations to the Ministers delegate. Those representations were duly considered.
On 14 June 2024, a delegate of the Minister decided under s.501CA(4) of the Migration Act, not to revoke the original decision. It is this decision of the delegate that is the subject of merits review before the Administrative Appeals Tribunal.
APPLICANTS STATEMENT OF FACTS ISSUES AND CONTENTIONS
The Applicant’s representative in a submission to the Tribunal dated 19 July 2024, made reference to the Applicant’s background and criminal history with reference to the respective issues before the Tribunal.
The Applicant’s representative addressed the relevant Direction 110 considerations.
With respect to the protection of the Australian community the Applicant’s representative Mr Nikjoo stated that the Applicant’s criminal history served a dual purpose and that was firstly an assessment of “the objective seriousness of the Applicant’s past conduct through a “forward looking” approach.[3] Secondly it required an evaluation of the risk of the Applicant engaging in future reoffending and the extent of that risk. The Applicant’s representative with respect to these contentions made reference to the Tribunal decision of Fasi and Minister for Home Affairs (Migration) [2018] AATA 4049 at [27]. The submission further noted that the Tribunal in the case of Fasi determined that “the best guide to the objective seriousness of the particular persons offences come from an understanding of the actual circumstances involved in the various offences and their sentences.”[4]
[3] Exhibit 1, Page 7.
[4] Ibid.
The Applicant’s representative submitted that the Applicants most recent and indeed his most serious offending occurred during the context of a heated argument with his estranged wife. The Applicant’s representative noted that the Applicant acknowledged the severity of his offending and has made no attempt to minimise or justify his actions with respect to the circumstances in which those actions occurred. The Applicant’s representative posited that the Applicant’s guilty plea reflected an admission by the Applicant that his behaviour was unacceptable and demonstrated a number of things. Firstly that the guilty plea reflected the Applicant’s true character, it demonstrated his insight into his offending, and demonstrated a commitment by the Applicant to address his drug and alcohol issues. The Applicant’s representative noted that this is crucial in understanding the nature of the Applicant’s offending and assessing the future risk of offending.
With respect to the nature and seriousness of the Applicant’s conduct the Applicant’s representative noted that on 6 June 2023, the Applicant committed a number of offences, including reckless wounding in a domestic violence setting, stalk/intimidate with intent to instil fear of physical harm in a domestic setting in contravention of an AVO. The submission notes that these were serious offences to which the Applicant pleaded guilty, and that the Applicant does not dispute the serious nature of his actions. Further to this, the fact that the Applicant does not dispute that there were aggravating factors with respect to this offending, as it resulted in a breach of an AVO and the offending occurred in the presence of the Applicant’s young son.
With respect to risk to the Australian community the Applicant’s representative made reference to court findings that the Applicant displayed insight into underlying problems with respect to his offending and found that there was a potential risk of reoffending in the future if the Applicant failed to address his problems with alcohol. The submission noted that the Applicant since his imprisonment and immigration detention has voluntarily committed himself to a number of self-help programs and courses. The submission noted that a combination of the Applicant’s insight and his commitment to self-improvement through attending programs and courses lowered the risk of reoffending.
The submission noted that when the Applicant was sentenced with respect to his serious offending of June 2023 that he appeared as a ‘contrite person’, that he had completed a number of courses in prison, that he had issued a letter of apology and that these were steps in the right direction. The Magistrate determined that community protection was paramount and further restrained the Applicant from engaging in future offending by way of a further AVO.

The submission notes that the Applicant fully understood the operation of the AVO and the serious consequences that stemmed from a breach of these orders which could result in further and longer terms of imprisonment, along with the cancellation of his visa and deportation from Australia. The submission noted that the Applicant conceded that this primary consideration weighs against him.
With respect to family violence committed by the Applicant the representative’s submission noted that the Applicants offences occurred in domestic settings and occurred within a framework of family violence. The submission notes that:
“However, given the Applicant sincere remorse and regret, along with support from his victim, which led to his voluntary participation in numerous rehabilitation programs and courses while in custody in immigration detention, this primary consideration should not, either individually or collectively, outweigh the considerations in his favour.”[5]
[5] Ibid, Page 9.
With respect to strength, nature, and duration of ties in Australia the Applicant’s representative submits the following. The submission notes that the Applicant first arrived in Australia in 2016, and that since that time he had worked and supported his family in a range of employment positions. The Applicant had a strong network of friends, community, and work colleagues. The Applicant has two minor children who are Australian citizens with whom he shared a very close bond, particularly his seven-year-old son. The submission notes that the Applicant’s wife had been struggling whilst the Applicant was in prison and in immigration detention and was experiencing a combination of emotional, psychological and financial difficulties. The Applicant’s representative states that this primary consideration weighed in favour of revoking the cancellation of the Applicant’s visa.
With respect to the best interests of minor children the submission notes that the Applicant has two minor children in Australia, both Australian citizens, who would be adversely impacted if the Applicant were removed from the country. The submission notes that the Applicant shared a close bond with his children and is concerned about them lacking a male role model in their lives. The submission notes that the Applicant’s wife had agreed to a modification of the current apprehended violence order conditions to allow the Applicant more access to his children.
The submission notes that the removal of the Applicant from Australia will have an adverse impact on both the psychological and lifestyle well-being of the Applicant’s minor children and will create a detriment to their upbringing and future. The representative posits that this primary consideration substantially favoured the revocation of the cancellation of the Applicant’s visa.
With respect to expectations of the Australian community the Applicant’s representative posited that this consideration was a matter for the Tribunal. The submission notes that the Applicant concedes that this primary consideration weighs against him with respect to his offending background.
With respect to legal consequences of the decision the submission makes reference to the Tribunal decision in NQKB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4054 at [125]-[134], in which the Member stated that with respect to ICCPR articles 2, 6 and 7 should be “collectively taken to create an obligation not to remove the person to a place, if there are substantial grounds for believing that there is a real risk of irreparable harm in the form of torture or cruel, inhuman or degrading treatment or punishment, or being arbitrarily deprived of their life.” The Applicant’s representative posits that “the Tribunal should find it “nevertheless…necessary” to consider the Applicant’s claims of harm he faces, see below, as ‘another reason’ for revoking the cancellation of his visa (Plaintiff M1 [2022] HCA 17 at [39]).”[6]
[6] Ibid, Page 12.
With respect to the extent of impediments if the Applicant is removed from Australia, the Applicant’s representative notes that the Applicant is a 37-year-old man who suffers with shortness of breath due to a heart condition and that he requires further tests and examinations. The submission notes that the Applicant’s heart condition is a major concern for the Applicant if he returns to Fiji, due to the lack of facilities, the location of these facilities being far away from his village, and substandard healthcare available in that country. The submission notes that the Applicant has no close family members in Fiji as his parents resided in the United States and that his brother has his own family and no capacity to provide support to the Applicant. The submission notes this would be compounded by the Applicant’s mental state if he lost physical contact with his minor children and that the Applicant would risk falling back into a cycle of alcohol abuse. The representative notes that the Applicant considers that these considerations significantly favour the revocation of the cancellation of his visa.
RESPONDENTS STATEMENT OF FACTS ISSUES AND CONTENTIONS
The respondent’s representative provided a submission to the Tribunal dated 2 August 2024. The submission makes reference to the Applicant’s history in Australia and with respect to his offending history. The submission makes reference to the relevant law with respect to the cancellation of the Applicant’s Partner visa on character grounds and makes reference to the relevant considerations with respect to Ministerial Direction 110.
With respect to protection of the Australian community the submission notes that the Applicant was convicted of serious domestic violence offences in December 2021, and again in June 2023, and that the latter offence was committed against the Applicant’s wife and his then five-year-old son. The submission notes that the Applicant’s criminal conduct that led to a conviction in December 2021, was that the Applicant held his wife by the throat, and took her phone away whilst she was trying to call emergency services.
With respect to the Applicant’s criminal conduct in 2023, the Applicant verbally abused his wife, threatened harm, and recklessly wounded his minor son. The respondent’s representative notes that at sentencing the Local Court Magistrate stated that “on any view this is a very ugly and violent domestic violence incident.”[7] The respondent submits that the seriousness of the Applicant’s conduct is reflected in the fact that he was sentenced to a lengthy term of imprisonment and that it is concerning that the domestic violence offences occurred within a period of less than two years, with an escalation in the seriousness of the offending.
[7] Exhibit 7 Page 47; Exhibit 5 paragraph [30].
With respect to the risk to the Australian community the respondent’s representative notes that the Applicant’s domestic violence offences were perpetrated against his wife and young child. They were serious in nature and that “any likelihood that they may be repeated is unacceptable.”[8] The submission posits that any further criminal acts or other serious conduct committed by the Applicant would lead to physical and psychological harm to members of the Australian community including children.
[8] Exhibit 5 Paragraph [34].
The submission notes that despite the fact that the Applicant has expressed remorse for his criminal conduct and the fact that the Applicant had committed numerous rehabilitation programs, there remained a real risk of the Applicant committing further domestic violence offences for a number of reasons. Firstly, and significantly, that the Applicant had breached an AVO that was put in place following his conviction on 4 June 2023 with the breach occurring in November 2023. Secondly, the author of a sentencing report prepared for the Local Court dated 31 May 2023, made an assessment that the Applicant was at a ‘medium-low risk of reoffending.’
The author of that report noted that in coming to this conclusion the Applicant “appeared to apportion some blame to being provoked by his wife; appeared to minimise the offences claiming they were an accident; and claimed that when he was angered, it was ‘not for the wrong reasons.’”[9] The respondent’s representative states that these factors are significant as they demonstrate that the Applicant had minimal insight into his offending behaviours. Thirdly, the victim of the Applicant’s 2021 common assault conviction was his wife. Finally, that there was no clarity with respect to the Applicant’s current relationship status with his wife. The Applicant had claimed that his wife had expressed trust in the Applicant’s commitment to his rehabilitation and a desire to re-join his wife and children in the future. Mr Gao stated that there is no current and independent evidence before the Tribunal about the view of the Applicant’s wife regarding her marriage to the Applicant.
[9] Exhibit 7 Page 117.
With respect to family violence the respondent’s representative noted that there was a frequency and repeated nature with respect to the Applicant committing acts of family violence. The submission notes that the Applicant was convicted of very serious domestic violence offences in December 2021 and again in June 2023 and points out that there had been an escalation in the seriousness of that offending. The submission posits that the Tribunal needed to look at the cumulative effect of the Applicant’s acts of family violence, particularly the fact that the domestic violence took place in the presence of the Applicants child. The submission suggests that the Tribunal should be cautious about the Applicant’s rehabilitation on the basis that despite attending rehabilitation programs, the Applicant expressed in May 2023, views that were “incongruent with those of a person who truly understood the impact of his domestic violence offences.”[10]
[10] Exhibit 5 Paragraph [44](c).
The submission notes that the Applicant had repeatedly breached AVO’s and that the Tribunal needed to be cautious with respect to evidence of the Applicant’s rehabilitation given that the Applicants wife “stated that she would continue to live on her own with the children as it had provided a safe place with confidence for [her] to raise the children.”[11]
[11] Ibid Paragraph [45].
The Minister contends that with respect to this consideration it weighs very heavily against revocation of the cancellation of the Applicant’s visa.
With respect to the nature and duration of the Applicant’s ties to Australia the submission notes that the Minister conceives that this consideration weighs in the Applicant’s favour having regard to the fact that the Applicant has a wife and two children in Australia. The Minister accepts that having spent six years in Australia before being incarcerated that the Applicant would have developed some social ties to members of the Australian community. The submission further notes that the Applicant appeared to be gainfully employed before his incarceration. The submission notes that despite these factors the Applicant’s residence in Australia had been for a relatively short period of time, that the Applicant did not arrive as a young child in Australia but permanently entered in 2017 when he was aged 30. The submission contends that the Tribunal should only accord this consideration minimal weight in favour of revocation.
With respect to the best interests of minor children, the submission notes that the Minister conceives that this consideration weighs in the Applicant’s favour noting that he has two Australian citizen children, who are currently aged seven and aged three and resident in Australia. Further to this, that evidence indicates that the Applicant, prior to his incarceration, was active in his children’s lives. Weighing against this consideration is the fact that the children have been exposed to family violence particularly the Applicant’s son who was a victim of the Applicant’s criminal conduct. The fact is that the children’s mother is currently their full-time caregiver and that because of the application of the AVO the Applicant would have limited contact with his children. The submission notes that the Tribunal should only accord this consideration minimal weight in favour of revocation.
With respect to the expectations of the Australian community the submission notes that the Australian community would expect that the Australian government should cancel a person’s visa if there is serious character concerns pertaining to that person, particularly, with respect to acts of family violence and with respect to violent crimes against women and children. The submission notes that given the nature and seriousness of the Applicant’s offending that the expectation of the Australian community would be that the Applicant’s visa remains cancelled, and that this consideration would weigh heavily against revocation.
With respect to other considerations the Respondent submitted the following. With respect to the legal consequences if removed that despite the fact that the Applicant in his statement of issues, facts and contentions submits that this consideration is relevant, the respondent’s view is that the Applicant has not raised any matters that would engage Australia’s non-refoulement obligations.
With respect to the extent of any impediments if the Applicant was removed from Australia the submission notes that the Minister accepts that due to the Applicant’s medical problems that the Fijian medical system is not as developed as that in Australia. Countervailing that consideration is the fact that the Applicant spent his formative years in Fiji, was educated in Fiji, has family members residing in Fiji and that these are factors that would assist with his reintegration into Fijian society and culture. The submission further notes that the Applicant worked on a farm in Fiji into his adult years and this would suggest an ability to re-establish himself in Fiji.
APPLICANTS STATEMENTS
The Applicant provided two statements to the Tribunal with respect to the cancellation of his visa one dated 13 July 2024 and the other dated 17 July 2024 in which he makes reference to his children.
The Applicant notes that prior to his incarceration in prison, and more recently in immigration detention, that he had been fully committed to supporting his family both emotionally and financially. The Applicant states that he is close to his children and especially close to his son, , with whom the Applicant claims to share a special bond.
With respect to his estranged wife the Applicant stated that she “relies on me as her pillar of support, and I am committed to being there for her and our children.”
In his statement the Applicant advises that during the time that he has been in Australia he has been able to maintain employment which has allowed him to provide financial support to his family and to ensure that his children receive appropriate care and education.
The Applicant states that in response to his past behaviour that he had taken significant steps to address issues that he had with alcohol abuse and anger management. The Applicant stated that he had participated in numerous programs aimed at personal growth, since he had been incarcerated including addressing domestic violence, child safety for parents, anger management techniques, understanding addictions and healthy relationships. The Applicant added that he had also completed several Christian-based programs, the Narcotics Anonymous program, the SMART recovery program, and the remand domestic violence program. The Applicant also claims to have attended multiple counselling sessions during his periods of incarceration.
The Applicant in his statement indicates that he had continued to take responsibility for his actions by applying for his tax return and depositing the funds from the tax return into a joint account with his estranged wife.
The Applicant states that he has been diagnosed with a heart condition called bradycardia which causes his heart to beat slower than normal and that the condition requires medical attention that he believes is best provided to him in Australia.
However it should be noted that Mr Gao at hearing rebutted the Applicants claims with respect to this condition. He made reference to the medical evidence at G11, pages 233 and 235. A report from Dr Dylan Rajaratnam, dated 21 March 2024, which indicates that the condition is “benign and may be normal in a fit young man” and from Dr Christian Mussap, dated 1 May 2024, that the Holter and Echo studies were normal and that there was no cardiac pathology. Dr Mussap recommended sleep studies for potential sleep apnoea.
The Applicant states that returning to Fiji would be extremely challenging as he has no close family members in that country. The Applicant stated that his parents resided in the United States and that his brother is in the British Army and has his own family to support and is not in a position to provide support to the Applicant.
The Applicant claims in the statement that the programs that he has attended and the counselling sessions that he has engaged in have given him insight into his behaviour and how to handle difficult situations, conflict, effective communication and identification and management of triggers.
The Applicant states that he has a strong religious belief and faith, and he describes his faith as being a cornerstone with respect to personal growth.
In his statements, the Applicant notes that he had been without his parents for 24 years and that he did not want his children to experience the hardship of growing up without their father. The Applicant stated that he is committed to continuing his sobriety for the sake of his family and himself and that is ready and able to re-enter the workforce as he holds a forklift license and order picker licence and that he has significant employment experience.
The Applicant stated that he is committed to complying with the conditions of his apprehended violence order until its conclusion in 2025 and that he will adhere to all legal requirements to ensure the safety and well-being of his loved ones and the broader Australian community.
WITNESS STATEMENTS
A witness statement dated 22 November 2023 was provided by Mr Jon Kauri, from Valiant in Alexandria. The reference provides a strong endorsement of the applicant’s work ethic and reliability. The reference also refers to the applicant’s character stating that the applicant “is a person of high moral standing, honesty, and trustworthiness.” The reference does not refer to the applicant’s offending or to the applicant’s alcohol abuse.
A witness statement dated 13 November 2023 was provided by Helena Wagstaff a Manager of the Harvey Norman warehouse where the applicant had worked for a period of time. The reference indicates that the applicant was a solid and reliable worker. The reference does not refer to the applicant’s offending or to the applicant’s alcohol abuse.
A witness statement was provided by the Reverand Scott Kelly of the Uniting Church dated 20 October 2023. Reverand Kelly is a chaplain at the St Heliers Correctional Centre in Muswellbrook. Reverand Kelly notes that in conversations that the applicant had with him he talked about the absence of his parents in his life, and of his desire to become a good father to his children and a good husband to his wife. The reference notes that the applicants “current lifestyle evidences that women and children are not safe in his company.”
A witness statement was also provided by Mr Stiven Kotevski dated 7 February 2024. Mr Kotevski and the applicant had worked together at Harvey Norman in Warrawong in 2020 and he attests to the applicant being a hard-working and reliable colleague. The reference also notes that the applicant is “a family man who values and cherishes his loved ones.” The reference notes that Mr Kotevski had witnessed this first-hand.

A witness statement was submitted after the two-day rule for the admission of documents to the Tribunal in a s.501 review. However, at hearing the respondent’s representative Mr Gao, voiced no objection to that document being tendered into evidence, and at an interlocutory proceeding on 29 August 2024, the document from Darelle Williams the Co-Ordinator of Lives Lived Well dated 22 August 2024 was submitted into evidence.
Ms Williams in that document indicated that the applicant had attended the SMART recovery training program offered by Watershed Drug & Alcohol Rehabilitation & Education Services. Ms Williams noted that this was a six-week program where participants are introduced to strategies for dealing with their life with the absence of drugs or alcohol. The statement indicates that the applicant commenced attending the program on 10 July 2024 and at the time of the provision of the statement had attended 4 meetings and that his interactions with participants and staff was positive.
CONSIDERATION AND FINDINGS
With respect to the Applicant’s offending the Tribunal has made extensive reference to the Applicant’s criminal history in Australia since his arrival in the country.
The bundle of papers and evidence adduced at hearing refer to the fact that the Applicant has been a heavy drinker since aged 17 prior to his imprisonment and his immigration detention, a period of close to 20 years.
The cardiologists report of 1 May 2024 makes reference to the fact that the Applicant had been a heavy abuser of alcohol prior to his incarceration.
The evidence before the Tribunal indicates that the Applicant’s first instance of offending in Australia was a drink-driving offence with a high range of prescribed alcohol in 2021, which led to a conviction on 23 June 2021 resulting in a fine, a CCO for 12 months, and 18 months disqualification from driving.
This is a serious offence at the highest end of the scale of drink driving offences and the Applicant’s prescribed concentration of alcohol at the time was 0.183. In the view of the Tribunal this offending is very serious and shows complete disdain for other users of the road whose safety was compromised by the Applicant’s degree of intoxication.
This offence was followed with a common assault offence that occurred in a domestic setting, in which the Applicant grabbed his estranged wife by the throat, and held her around the neck for 20 seconds, and then confiscated her mobile phone to prevent her from calling the police. This offending, the Applicants first domestic/family violence offence led to a conviction on 22 December 2021, resulting in a conditional release order, and a conviction for a period of 12 months, commencing on 22 December 2021, and concluding on 21 December 2022. An AVO was also put in place as a consequence of this offending.
The New South Wales Department of Communities and Justice provided advice on their website in May 2023 that:
“the benefit of CROs is that the court can impose conditions such as drug and alcohol abstention, programs, non-association requirements or place restrictions where appropriate. CROs can also have a supervision condition. Courts have discretion to impose a conviction on a CRO, if they consider it appropriate. CROs can be imposed for a period of up to two years. The CRO acts as a warning and provides the option to divert less serious offenders out of the criminal justice system, freeing up resources to deal with the offenders who cause the greatest concern to the community. If an offender commits any further offences while on a CRO, subsequent penalties may be more severe.”[12]
[12] Corrective Services NSW, ‘Conditional Release Orders’ (Web Page, 11 May 2023) <>
The Judicial Commissions Sentencing Bench book notes that with respect to the application of CRO’s that they:
can only be made with respect to a domestic violence offender if the order includes a supervision condition (s 4A(3)) and the court has considered the safety of any victim of the offence/s (s 4B(3)). See [4-710] and [63-505].[13]
[13] Judicial Commission of New South Wales, ‘Conditional Release Orders (CRO’s)’ Sentencing Bench Book (Web Page, August 2023)
<>
The next offence for which the Applicant was convicted was driving whilst licence cancelled on 4 May 2023 in which, as has been noted above, a s.10A conviction with no other penalty was recorded with a three-month disqualification from driving commencing 4 May 2023.
The facts with respect to this offence indicates that the Applicant was asked to produce a driver’s licence when he was pulled over by the police and that he produced a Fijian licence in an attempt to evade police detection for driving whilst his licence was cancelled.
The next offences and indeed the most serious for which the Applicant was convicted occurred on 6 March 2023 and were with respect to 3 criminal charges. They establish that despite the common assault family violence offences of December 2021, the Applicant’s family violence offending escalated and became more volatile. With respect to the charges, the first was contravene prohibition/restriction in AVO (Domestic), stalk/intimidate intend fear of physical harm (domestic), and a third charge of reckless wounding (DV).
With respect to these offences the Applicant was sentenced to an aggregate term of imprisonment of 16 months, commencing on 7 March 2023, and concluding on 6 July 2024 with an initial non-parole period of 10 months which was reduced in the District Court to a non-parole period of 8 months commencing on 7 March 2023, and concluding on 6 November 2023.
The police facts sheet with respect to this offending has been provided to the Tribunal at review. The police facts sheet notes that the police determined that the actions of the Applicant with respect to this offending posed a serious and unacceptable risk to his estranged wife and to their children if the Applicant was released from custody and hence bail was opposed.
With respect to the offending the police facts sheet notes that the Applicant was the subject of a current final apprehended domestic violence order at the time with a number of conditions in place pertaining to his domestic relationship. The conditions of the order were that the Applicant was not to assault or threaten his estranged wife, stalk harass or intimidate her, intentionally or recklessly destroy or damage any property or harm an animal that belongs to or is in the possession of his estranged wife and that he must not approach or be in the company of his estranged wife and children for at least 12 hours after drinking alcohol or taking illicit drugs.
The fact sheet notes that on Monday, 6 March 2023 at around 6:30pm the Applicant was seated at the head of the dining table with his estranged wife in the kitchen preparing food. The Applicant’s son and daughter had already eaten. The Applicant’s daughter had been put to bed. The Applicant’s son was lying on the carpet in the dining area playing with an iPad. Whilst the Applicant’s estranged wife was serving the Applicant dinner they began to argue over their finances and a joint bank account with the Applicant requesting his estranged wife to go to the ATM machine and withdraw $150 in cash for him immediately. Evidence adduced at hearing was that this money was for a tithe that the Applicant provides to a number of ministries around the world each pay period. It was also adduced at hearing that there was no apparent urgency for the provision of this money right at that point in time. The facts sheet notes that the Applicant’s estranged wife was reticent to do this, and the Applicant had recently spent a large amount of money prior to this request. The fact sheet notes that the Applicant was insistent about his estranged wife attending the ATM and is recorded as saying to his estranged wife “don’t talk back to me, just go to the fucking ATM and get me the money.” The fact sheet notes that the Applicant became aggressive and continued threatening his estranged wife and that she was fearful of being hit by the Applicant. The Applicant is recorded as saying to his estranged wife “I’ll smash this plate across your head if you don’t go and get it now.”
The police facts sheet records that “L… exited the room at which time J reached for L… and asked to go with her. L… picked up J, put him on her hip and began to walk towards the back door of the house which is through the laundry. Before she had reached the exit, the accused approached her and raised one of his fists as though he was going to hit L with it, however instead of hitting her, he lowered his fist again. L said “are you gonna hit me are you?” Immediately after L asked this, the accused swung his right hand towards the side of L’s body which had J on her hip. In the accused’s right hand at the time he swung it, was the four pronged, metal fork he had been using to eat his dinner. The fork struck J on the back of his right calf, causing an injury initially estimated by staff at the hospital to be a 3cm deep wound.”
The police facts sheet indicates that as the Applicant’s son was bleeding his estranged wife advised that she was going to take their son to the hospital and prior to doing this she bandaged her son’s leg.
The police facts sheet notes that during the police interview the Applicant admitted to swinging the fork towards his estranged wife while she was carrying their son but denied intending to strike either of them with his actions.
With respect to a breach of the apprehended violence order the Applicant is recorded as saying in the police facts sheet that he believed that the AVO was no longer in place and had expired after a 12-month period in December 2022.
THE CHARACTER TEST AND DIRECTION 110
The operational effect of ss 501(6)(a) and 501(7)(c) of the Act is such that the Tribunal finds that the Applicant has a substantial criminal record as he has been sentenced to a term of imprisonment of 12 months or more. The Applicant in these circumstances does not pass the character test.
To revoke the mandatory cancellation of the Applicant’s visa under s 501CA(4)(b) of the Act, the Tribunal must be satisfied that there is another reason, considering Direction No 110, to revoke the cancellation.
Direction 110 sets out Primary Considerations and Other Considerations. These are addressed under their respective headings below.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, which the Tribunal will now address.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are view very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes
(ii)crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
The Applicant has committed violent crimes against his wife and against his son who was 5 years old at the time of the offending. The Applicant’s engagement in family violence against his wife occurred for the first time in December 2021, and despite the imposition of an AVO it occurred again 15 months later in early March 2023. The second incident involved an escalation of violence. The Tribunal considers this criminal offending to be very serious.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious such as crimes against vulnerable members of the community:
The Applicant assaulted his wife in December 2021, and despite police intervention and a court imposed conviction, and the imposition of an AVO, he went on to commit further family violence directed towards his wife in March 2023, which led to a fork stab injury to his then 5 year old son. The Tribunal considers this conduct, perpetrated on a vulnerable 5 year old child, to be very serious.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the courts for a crime or crimes of a non-citizen/Applicant.
The imposition of a custodial term is regarded as the last resort in any reasonable and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending[14]
(i)   causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iv)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(v)    where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
[14] Pavey and Minister for Home Affairs [2019] AATA 4198, [44].
The Applicant has been imprisoned for 16 months for his violent offending that occurred in a domestic setting and constituted family violence. This clearly reflects the objective seriousness of the Applicant’s offending.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the impact of offending on any victims, where this information is available and where an Applicant has been afforded procedural fairness.
The current impact of the Applicant’s offending is profound. When the applicant was convicted on 23 June 2021, for driving with a high range prescribed concentration of alcohol, the applicant lost his license for a period of 18 months. This meant that the applicant’s estranged wife, apart from her own caring duties to their two young children, and her other commitments, had to become the primary driver in the household for the period of the applicant’s suspension. The applicants estranged wife gave evidence at the review hearing that this had substantial impact on the household. Her evidence was that the applicant was putting pressure on her to drive him to work and to other places.
Evidence provided by the applicant’s estranged wife indicates that she ‘hated’ the applicants drinking, she ‘hated’ the applicant’s behaviour when he was affected by alcohol and that with respect to the resumption of the relationship it would take a long period of time to ascertain whether it would work again. The Applicant’s wife gave evidence that the Applicant had been forced into a period of abstention from alcohol due to his incarceration and immigration detention, but whether he would abstain in the community has not been tested, and that only a significant period of time would bare that out.
The applicants estranged wife said that she can see that her son is impacted by his father’s removal from the family unit and that she did not want her son to hate her when she was older for inhibiting access to his father.
The applicants estranged wife advised that the applicants drinking led to an escalation in his aggressive behaviour and had impacted her and the children.
Evidence was adduced at hearing with respect to the Applicant’s estranged wife’s two children from a former marital relationship who lived with the Applicant and their mother for a period. The evidence indicates that due to the Applicant’s heavy drinking and associated aggressive behaviour that those two children were removed from the family unit and were returned to reside with their natural father. This is a significant consideration.
The evidence before the Tribunal indicates that the applicant is 180cm tall and 125kg in weight and that when he thrust the fork in the direction of his wife and hit his five-year-old son in the thigh, his action would have caused great distress and upset to his child. The Applicant’s lashing out behaviour caused physical damage and distress to a vulnerable member of the community, his 5 year old child as he was being carried on his mother’s hip.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The Applicant has been convicted of 6 offences since 2021, and his offending has increased in its frequency since that time. The evidence before the Tribunal indicates that the Applicant’s offending has also increased in seriousness from his first drink driving charge to his later very serious acts of family violence. The Tribunal also notes that the two instances of family violence offending increased in severity with respect to the second offence. The Tribunal finds that both instances of family violence would have caused great distress and fear to his estranged wife and with respect to the second incident to his son.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
The cumulative impact of the Applicant’s repeat offending has led to the Applicant’s incarceration, his estrangement from his wife, his absence from the life of his children and the removal of his step-children from his care and control.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There is evidence that the Applicant has provided false or misleading information to the Department with respect to amendment of his AVO. In a submission to the Department, dated 24 October 2023, with respect to the proposed cancellation of his Partner visa, the Applicant stated that “my biggest fear lies when I reach Villawood because it will take three months to amend the current AVO conditions as my son is already struggling mentally and not been able to talk to me and physically see me.” Yet despite this assertion the Applicant knowingly breached the conditions of his AVO in November 2023.
Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. The Tribunal notes that the absence of a warning should not be considered to be in the non-citizen’s favour.
There is no evidence that the Applicant has offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
Sub-paragraph (i) of paragraph 8.1.1(1) of the Direction points to an inquiry where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.

There is no evidence that the Applicant has committed an offence, or other serious conduct, in another country.
The sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh very heavily against the revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
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.
Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The Applicant’s representative has cited a number of factors that would mitigate the risk of the Applicant re-offending. An assertion that the Applicant would abstain from alcohol if he were released into the community, the Applicant’s opportunity whilst incarcerated to reflect on his offending and his remorse with respect to his offending behaviours. The fact that the Applicant had engaged in a number of courses whilst incarcerated, with respect to substance abuse, family violence and self-management and recovery training. The fact that the Applicant had a long history of employment in Australia and that he was highly valued by his most recent employer Valiant at Alexandria.
The Tribunal has significant concerns about the Applicant’s alcohol abuse and the decisions that he makes whilst under the influence of alcohol.
The evidence before the Tribunal indicates that the Applicant has had a chronic drinking problem since he was 17. The Applicant’s own evidence was that a weekend could involve him consuming one and a half to two cartons of beer on his own and then some cask wine and when mates were involved that could transcend into 10 cartons of beer between them.
Alcohol abuse has peppered the Applicant’s marital relationship since its inception. It led to the removal of his estranged wife’s children from her first marriage from their family unit due to the volatility of the Applicant when impacted by alcohol. This was a decision made in those children’s best interests.
The Applicant was granted his Partner visa on 23 October 2019. Within 20 months of the grant of permanent residence the Applicant was convicted of a driving whilst under the influence of a high prescribed concentration of alcohol. This led to the disqualification of the applicant from driving for 18 months. Yet despite this disqualification less than 17 months later the applicant was found guilty of drive whilst licence cancelled on 4 May 2023. These offences show complete disdain for the rules governing vehicular use in Australia.
As noted above the Tribunal holds the view that drink-driving is not a victimless crime but poses a risk to other road users that is unacceptable and potentially fatal.
The evidence before the Tribunal indicates that the applicants drinking led to an escalation in family violence. On 22 December 2021, the applicant was convicted of common assault in a domestic violence setting and the facts as discussed involved a verbal and physical altercation with his estranged wife during which time he grabbed his estranged wife by the throat as she attempted to contact emergency services.
As a consequence of that offending, an AVO was put in place, which the applicant contravened in June 2023 with respect to further and indeed escalating domestic violence. This second incidence of family violence offending led to the Applicant being convicted of the contravention of an AVO, stalking and intimidate intend fear physical harm in a domestic setting and reckless wounding in a domestic violence setting. The imposition of a 16 month aggregate term of imprisonment is indicative of the seriousness of this offending.
The Applicant has provided a number of references, which as discussed above none of these addressed the Applicant’s drinking. Only Reverand Kelly’s statement addressed the Applicant being involved in the perpetration of family violence.
The evidence before the Tribunal indicates that the Applicant is a good father to his two children and a good friend and a hard-working, work colleague. The evidence from rehabilitation services that the Applicant has been engaging with since his incarceration suggests that the Applicant is in the early stages of recovery.. The Tribunal gives some weight to this evidence with respect to the Applicant’s attempts to address his alcohol issues. However, the Tribunal notes that there is no evidence of the Applicant remaining sober for an extended time in the community, which needs to be tested and his current sobriety has been forced upon him through incarceration.
The Applicant as noted obtained his permanent residence on 23 October 2019. The Australian community was largely locked down for the majority of 2020 due to the global pandemic. The evidence indicates that within 18 months of the grant of residence the Applicants ongoing alcohol abuse began to manifest. The first manifestation was in June 2021 was when the Applicant was convicted of a high range prescribed concentration of alcohol conviction. Within 6 months of that offence the Applicant was convicted of his first family violence offence towards his wife. Seventeen months after this offence the Applicant was charged with driving whilst his licence was cancelled and just over a month after this his more serious family violence offence involving the verbal and physical abuse of his wife and child. The Tribunal is not reasonably satisfied on the basis of the evidence before it, that the Applicant demonstrates sufficient insight into the effect of alcohol upon him, with respect to his long-term abuse of alcohol that has been a part of his life since he was 17 or with respect to the ability for self-regulation when he is affected by alcohol.
The Tribunal notes that in the Sentencing report of 31 May 2023 that a Community Corrections Officer determined at that time a medium-low risk of re-offending. That same report notes that the Applicant “appeared to apportion some blame to being provoked by his wife who is a victim of the offences.” Given the increased frequency in offending and an increase in the severity of the offending, particularly with respect to the use of alcohol the Tribunal is reasonably satisfied that the Applicant would re-offend if released into the Australian community.
The Applicant’s criminal offending is very serious. As noted, the Applicant’s offending has escalated in its severity over time and the Tribunal finds on the basis of the evidence before it, that there is a substantial risk of this is being repeated going forward.
The sub-paragraphs of paragraph 8.1.2 of the Direction, in their totality, weigh very heavily against the revocation of the cancellation of the Applicant’s visa.
CONCLUSION: PRIMARY CONSIDERATION 1
Primary Consideration 1 weighs very heavily against the revocation of the cancellation of the Applicant’s visa, although the Tribunal notes that this consideration alone is not of itself determinative.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
“Family violence” is defined in paragraph 4(1) of the Direction to mean violent, threatening, or other behaviour that coerces or controls a member of the person’s family or causes that family member to be fearful.
Paragraph 8.2(1) of the Direction informs the Tribunal of the Government’s serious concern about conferring on non-citizens who have engaged in family violence the privilege of remaining in Australia. That concern is proportionate to the seriousness of the family violence engaged in by the non-citizen as referred to in paragraph 8.2(3).
Sub-paragraph (a) of paragraph 8.2(3) of the Direction points to an inquiry of the frequency of the non-citizen’s conduct and whether there is a trend of increasing seriousness.
The Tribunal is satisfied that the Applicant has committed two acts of family violence against his estranged wife and one against his 5 year old son. During these incidences the Applicant’s estranged wife was threatened and intimidated, her phone was confiscated to prevent her calling the police and the Applicant’s son suffered a not insubstantial injury as a result of the Applicant thrusting a fork in the direction of his wife whilst she had their son on her hip. Both of these acts of family violence were very serious and as has been noted the severity of the family violence has escalated with the offending.
The Tribunal is satisfied that the Applicant has not only committed acts of family violence against his wife, but the second act of June 2023 directed at his wife, led to his 5 year old child experiencing physical harm, which led to him having to attend hospital for assessment to a wound to his thigh.
Sub-paragraph (b) of paragraph 8.2(3) of the Direction concerns itself with the cumulative effect of repeated acts of family violence.
The cumulative impact of the Applicant’s family violence is clear from the evidence and is able to be assessed objectively. The Applicant has given an honest account of the inception of his drinking habit at age 17, a habit that persisted thought his young adult life and then carried over into his life in Australia. The Applicant gave evidence of the physical impact of his drinking upon him when he gained 40 kilograms in weight in the first three months of his residence in Australia due to the extent of his drinking and the ease and affordability of accessing alcohol in Australia.
Of concern is that when the Applicant and his estranged wife were first cohabiting in Australia the Applicant’s two step-children came to live with the couple and as previously highlighted due to the Applicant’s drinking and his volatility when drunk those children were removed from the home and returned to reside with their natural father for their own best interests.
One would expect that a newly arrived permanent resident would do their best to abide by the laws of their newly adopted country. However, within 9 months of the grant of permanent residence the Applicant was convicted for the highest range drink driving offence and the evidence indicates that when breath tested, he was close to four times over the legal limit.
The Applicant then committed the first reported family violence offence when he physically and verbally assaulted his estranged wife grabbing her around the throat and confiscating her mobile phone to prevent her calling for help.
The second incidence of family violence was even more pronounced and led to three significant charges leading to a 16 month custodial sentence, and the wounding of his 5 year old child.
The Applicants wife is currently estranged from her husband. This is attributable to the existence of an AVO, but is also attributable to her choice due to the havoc that the Applicant’s drinking brought into her life and that of her children, culminating in two serious incidences of family violence. The Applicant’s estranged wife gave measured and cautious evidence with respect to the rehabilitation potential of her husband noting that his current sobriety has been enforced though incarceration. She advised that there has not been any significant test of how this behaviour would manifest if the Applicant were released into the community. She gave evidence that there would have to be a long period of time of abstinence in a community setting to engender faith in the Applicant’s rehabilitation.
The Tribunal gives weight to this evidence, particularly in light of the Applicants long drinking history from age 17 up until the time of his incarceration in 2023.
The evidence indicates that both instances of family violence occurred in a setting where alcohol consumption or the aftereffects of alcohol consumption was a recurrent feature. The Tribunal finds that the cumulative effects of alcohol abuse and its impact on the Applicant is evidenced in the removal of the Applicant’s step-children from his care, and his acts of family violence, coupled with his drinking, has led to his estrangement from his wife and children and ultimately the cancellation of his partner visa.
The Tribunal accordingly gives weight to this consideration with respect to the cancellation of the Applicant’s visa.
Sub-paragraph (c) of paragraph 8.2(3) of the Direction directs a decision-maker to consider any rehabilitation achieved at the time of the decision, including the extent to which the person accepts responsibility for the family violence and related conduct; the extent to which the non-citizen understands the impact of his or her behaviour on the abused and witnesses; and efforts to address factors which contributed to that conduct.
The evidence before the Tribunal indicates that the Applicant has engaged in a number of courses and some counselling with respect to substance abuse, family violence, child safety, anger management and healthy relationships since his imprisonment and immigration detention. This commitment from the Applicant is admirable. However, this is as his estranged wife explained in her evidence, the result of his offending, convictions and incarceration which have forced him into abstinence, reflection and engagement in self-help courses. Coming off the back of a 20 years of heavy drinking, the Tribunal finds that given the duration of his addiction that it cannot find with any certainty that the Applicant would abstain in the community for any length of time. The Tribunal accordingly finds that there is no reliable evidence before it that demonstrates a level of rehabilitation.
Sub-paragraph (d) of paragraph 8.2(3) of the Direction points to an inquiry as to 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.
The Applicant committed several acts of family violence against his estranged wife and one that led to his 5 year old son experiencing collateral damage. This offending required the intervention of the police and ultimately the courts and led to convictions and a period of imprisonment. The evidence before the Tribunal indicates that the Applicant was the subject of apprehended violence orders which prohibited contact with his wife. The evidence before the Tribunal at G10 page 99, namely a statement to the Department from the Applicant indicates that as of 24 October 2023, he was cognisant of the existence and operation of an apprehended violence order and he expressed concern that it may take 3 months to have the order amended once he was in Villawood Detention Centre. Despite this acknowledgement on 27 November 2023, the Applicant was convicted of two counts of contravening the contents of his AVO. The Applicant has attempted to explain this away at review by stating that he thought the conditions of his AVO may differ in an immigration detention setting to a prison setting, and clarification with respect to this with detention staff led to an inadvertent breach of his AVO. The Tribunal places greater weight on the contents of the Applicant’s statement of 24 October 2023, as it provides a contemporaneous account from the Applicant that indicates that the Applicant was cognisant of the operation of the apprehended violence order as evidence by his knowledge of the need to amend it.
Considering the sub-paragraphs in their totality, they weigh strongly against the revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 2
Primary Consideration 2 weighs heavily against the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3: THE STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
The Tribunal must consider any impact of its decision on the Applicant’s immediate family members in Australia who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraph 8.3(2) of the Direction allows for the consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community.
Sub-paragraph (a) of paragraph 8.3(2) of the Direction directs a decision-maker to have regard to how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child. Less weight should be given where the non-citizen began offending soon after arriving in Australia. More weight should be given to time the non-citizen has spent positively to the Australian community.
The Applicant has lived in Australia since 2017 and has held permanent residence through a Partner visa that he acquired on 23 October 2019. Despite the Applicant’s offending history since 2021, the Applicant has contributed positively to the Australian community through a consistent work history including during the COVID 19 pandemic. This is evidenced in a reference with respect to the Applicant’s last held position prior to his incarceration with Valiant in Alexandria NSW.
Sub-paragraph (b) of paragraph 8.3(2) of the Direction directs the decision-maker to consider the strength, duration, and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has two Australian citizen children resident in Australia a son aged 7, and a daughter aged 3. The Applicant also has his estranged wife in Australia and the evidence is unclear with respect to the resumption of that relationship and it is in no way certain and would appear to be contingent on a number of factors.
The Applicant has provided statements from colleagues who have attested to his work ethic and his character.
The evidence indicates that the Applicant has only lived in Australia on a continuous basis since February 2017 a period of 8 years. The evidence indicates that the Applicant spent his formative years in Fiji and was educated in Fiji and engaged in work on a family farm and he has described his occupation in Fiji as being a farmer. However, the Applicant does have significant ties to Australia by virtue of the fact that he has two Australian citizen children and placing weight on this factor alone the Tribunal finds that this consideration weighs in favour of the revocation of cancellation of his visa.
Conclusion: Primary Consideration 3
Primary Consideration 3 weighs in favour of the revocation of cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

Paragraph 8.4(1) of the Direction obliges a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA, is in the best interests of a child affected by the decision.
Paragraph 8.4(2) provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made.
Paragraph 8.4(3) provides that 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.
The Applicant has a 7 year old son and a 3 year old daughter. The evidence indicates that the Applicant was a good provider to his estranged wife and to his two children. The evidence indicates that the Applicant’s daughter was an infant when her father was incarcerated. The evidence indicates that the Applicant’s son was 5 at the time of his offending in 2023 and is now 7 years old. The evidence indicates that the Applicant’s son misses his father and is at a loss to understand his father’s absence from his life. The evidence indicates that the Applicant and his son had a close bond, and the Applicant has provided evidence of a desire to reconnect with his son and indeed with his daughter. The Applicant’s estranged wife has had care and control of the children since the applicant was incarcerated.
The evidence indicates that the children have been exposed to the Applicant committing family violence against their mother both verbal and physical and this becomes more pronounced when the Applicant has been drinking or when as described by him “he has been on a bender” and experiencing the aftereffects of his drinking. The Applicant’s behaviour has been described in sentencing remarks as controlling. The evidence also indicates that the Applicant’s son has been the victim of the Applicant’s offending when he was stabbed in the leg by a fork that was being thrust in the direction of his mother and which hit him and caused collateral damage. There is no doubt that this action would have had an adverse impact on the Applicant’s son and that his son would have borne witness to his father’s alcohol fuelled violence.
Sub-paragraph (a) of paragraph 8.4(4) points to a consideration of the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact).
As noted, the Applicant’s estranged wife is currently maintaining the primary parental role for their son and daughter. The Applicant has been involved in the co-parenting of his children when he was in the community and he has also been involved, according to his estranged wife, in teaching his children about right and wrong and making the right choices. The evidence also indicates that whilst in the community the Applicant maintained a strong work ethic and was liked by managers and co-workers because of that ethic.
Sub-paragraph (b) of paragraph 8.4(4) points to a consideration of the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements.
The Applicants son is 7 and his daughter is 3 and there is lengthy period of time before reach adulthood. The evidence is suggestive of a strong bond between the Applicant and his young son, and the evidence suggests that the Applicant’s son could benefit from having a male role model in his life.
There is no evidence before the Tribunal of any Court orders relating to parental access and care arrangements.
Sub-paragraph (c) of paragraph 8.4(4) points to a consideration of the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child.
There is evidence before the Tribunal that the Applicant’s son would have been negatively impacted by the Applicant’s conduct which led to him sustaining a not insignificant wound to his thigh when his father thrust a fork into it during a fit of pique during a family violence incident.
No doubt the Applicant’s son, and to a lesser extent his daughter, due to her age, would have experienced volatility, arguments and aggressive behaviours when their father was affected by alcohol and when he had been on ‘a bender’.
The Tribunal cannot be certain about the Applicant’s future behaviours and how they may impact upon his children. The Applicant’s estranged wife’s evidence was cautious in this respect based on the Applicant’s behavioural history to date. She advised in her evidence that the current period of sobriety was thrust upon the Applicant, due to his detention, and that given his history of alcohol abuse, unless there was a long and sustained period of sobriety in the community, there was uncertainty with respect to future conduct.
Sub-paragraph (d) of paragraph 8.4(4) points to a consideration of the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways.
The evidence before the Tribunal strongly suggests that the Applicant’s son, now 7 will miss his father if he is removed from Australia. As the Applicant’s daughter is an infant the impact on her will be harder to gauge.
Sub-paragraph (e) of paragraph 8.4(4) points to a consideration of whether there are other persons who already fulfil a parental role in relation to the child.
The Applicant’s estranged wife already fulfills a parental role for the couples two children.
Sub-paragraph (f) of paragraph 8.4(4) points to a consideration of any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
The Applicant’s wife in her statement advised that she had witnessed the emotional toll the removal of his father from the family unit had and that the rebuilding of a relationship between the two going forward would be positive rather than leaving the child with a “traumatic memory”.
Sub-paragraph (g) of paragraph 8.4(4) points to a consideration of any evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally.
The Applicant’s son was 5 years old during the described second act of family violence perpetrated by the Applicant. The Tribunal cannot be satisfied on the basis of the evidence before it, inclusive of the fact that the Applicant has engaged in some supportive programmes, that given his history of alcohol abuse and the escalation in his family violence over time that would fortify the Tribunal that there is no risk of this re-occurring in the future. Of further concern to the Tribunal is evidence evinced in the Sentencing Report dated 31 May 2023 pertaining to the second incident of family violence which can be found at pages 116 to 119 of the Respondent’s Tender Bundle. That report notes that the Applicant had only some insight into his offending and apportioned blame for his offending to provocation by the victim, and questioned the severity of the injury he inflicted upon his 5 year old son. The report notes that at the time of this offending alcohol was not in play but the report notes that “alcohol could be an aggravating factor towards his poor anger management.”
Sub-paragraph (h) of paragraph 8.4(4) points to a consideration of any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
As discussed, there is evidence that during the incident of family violence in June 2023 the Applicant’s son who was 5 years old at the time was stabbed in the thigh with a fork during a family violence incident.
Considering all of the evidence before it under this Primary Consideration, the Tribunal is satisfied that the best interests of minor children in Australia affected by this decision weigh in favour of the revocation of cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 4
Primary Consideration 4 weighs in favour of the revocation of cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 5: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Applicant has breached this expectation through his criminal conduct that commenced in June 2021 and continued until June 2023 at which time he was incarcerated.
Paragraph 8.5(2) of the Direction directs that a 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 are 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.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
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.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.
Paragraph 8.5(4) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which a decision maker is required to have regard to.
In assessing the weight attributable to Primary Consideration 5, the Tribunal places weight on the following matters:
(a)The Applicant has committed acts of family violence;
(b)The Applicant has violently offended against his estranged wife;
(c)The Applicant family violence offending resulted in his 5 year old suffering a fork wound to his leg requiring hospital treatment;
(d)The Applicant has committed a drink driving offences when he was found to be close to 4 times over the legal limit;
(e)The Applicant has breached Court orders with respect to his apprehended violence order; and
(f)The Applicant has been convicted for his offending and sentenced to terms of imprisonment.
This history of criminal conduct in Australia raises serious concerns with respect to the Applicant’s character. Upon consideration of the evidence before it, the Tribunal is reasonably satisfied that the expectations of the Australian community, particularly given the community’s abhorrence for any form of family violence weigh very heavily against the revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 5
On balance, Primary Consideration 5 weighs very heavily against the revocation of the cancellation of the Applicant’s visa
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. These are considered under their respective headings below.
(a) Legal consequences of the decision
There is no evidence before the Tribunal of any non-refoulement obligations that may arise in this matter, or that it would be impracticable to remove the Applicant to Fiji. Accordingly, the Tribunal does not consider this consideration to be relevant.
(b) Extent of impediments if removed
The Applicant is 37 years old and is a relatively young man who has worked as a farmer in Fiji, has engaged in competitive Rugby and has acquired new skills in Australia such as the acquisition of a fork-lift licence. The Applicant has demonstrated resilience in finding and maintaining employment even during the pandemic. The issues raised by the Applicant with respect to his bradycardia are negated by the reports of the cardiologists submitted at review, which indicate that this condition is benign and not of a concern, particularly in a fit younger man.
The Tribunal accepts the Applicant’s evidence that removal to Fiji would be stressful. The Tribunal accepts that the removal of the Applicant from Australia would have an impact on his estranged wife and his two young children.
The evidence is such that the Applicant would not suffer any language or cultural barriers in Fiji as he was born in that country in 1984 and continuously resided there until 2017. It is accepted that the social, medical and economic support systems available in Fiji are not comparable to those in Australia, however there is nothing to suggest that access to those systems would not be made available to him.
The Tribunal is satisfied that the Applicant may experience some difficulties in re-establishing employment and accepts his reticence to re-engage in farming due to a purported back issue. However, counterbalancing that is the fact that within Australia since 2017, the Applicant has demonstrated resilience and resourcefulness in finding work in Australia and the Tribunal believes given that, the Applicant would have the tenacity to re-establish work in Fiji.
(c) Impact on Australian business interests
There is no evidence that Australian business interests would be compromised were the Applicant removed to Fiji. Accordingly, the Tribunal does not consider this consideration to be relevant.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to making the decision to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason pursuant to Direction 110 to revoke the cancellation.
Having regard to the evidence before it the Tribunal finds that the Applicant does not pass the character test. In considering whether there is another reason to make the decision under s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the totality of the evidence and those considerations referred to in the Direction. Accordingly, the Tribunal finds as follows:
(a)Primary Consideration 1 weighs very heavily against the revocation of the cancellation of the Applicant’s visa, although this consideration is not of itself determinative.
(b)Primary Consideration 2 weighs heavily against the revocation of the cancellation of the Applicant’s visa.
(c)Primary Consideration 3 weighs in favour of the revocation of cancellation of the Applicant’s visa.
(d)Primary Consideration 4 weighs in favour of the revocation of cancellation of the Applicant’s visa.
(e)Primary Consideration 5 weighs very heavily against the revocation of the cancellation of the Applicant’s visa.
(f)To the extent that they are relevant, the Other Considerations weigh moderately in favour of the revocation of the cancellation of the Applicant’s visa.
Consistent with paragraph 7(2) of the Direction, the Tribunal places greater weight on Primary Consideration 1 and the protection of the Australian community than it does on the Primary Considerations 2, 3, 4, and 5. Furthermore, the Tribunal places greater weight on the Primary Considerations than the Other Considerations.
The Tribunal is guided by the principles contained in the Direction. These include paragraph 5.2(2), where the highest priority of the Australian Government is the safety of the Australian community. The Tribunal is satisfied that the safety of the community is best served without the Applicant being a part of it.
Accordingly, the Tribunal is not satisfied that the cancellation of the Applicant’s visa should be revoked. The correct and preferable decision of the Tribunal is to affirm the Reviewable Decision.
DECISION
The Tribunal affirms the Reviewable Decision

I certify that the preceding 225 (two-hundred and twenty five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Cipolla

.....................[SGD]..............................
Associate
Dated: 5 September 2024

Dates(s) of Hearing: 26, 27 and 29 August 2024

Solicitor for the Applicant: Mr F Nijkoo, Nikjoo Lawyers

Solicitor for the Respondent: Mr M Gao, HWL Ebsworth Lawyers

Dates(s) of Hearing:	26, 27 and 29 August 2024
Solicitor for the Applicant:	Mr F Nijkoo, Nikjoo Lawyers
Solicitor for the Respondent:	Mr M Gao, HWL Ebsworth Lawyers