VSYV and Minister for Immigration and Multicultural Affairs - [2024] ARTA 10

VSYV and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 10 (20 December 2024)
Applicant/s:  VSYV
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:                2024/8012

Tribunal:Deputy President Britten-Jones
Place:Melbourne
Date:20 December 2024
Decision:The Tribunal affirms the decision under review.

....................[SGD]....................................................
Deputy President Britten-Jones
Catchwords
MIGRATION – Non-revocation under s 501CA(4) of the Migration Act 1958 of the mandatory cancellation of Applicant’s Bridging (Class WA)(Subclass 010) Visa – where the Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation – Substantial Criminal Record and repeated acts of family violence – Protection and expectations of the Australian Community – family violence – Strength Nature and Duration of Ties to Australia – decision affirmed
Legislation
Migration Act 1958 (Cth)
Cases
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395; [2014] FCA 303
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Secondary Materials
Direction No 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons

This is an application for review of a decision under s 501CA(4)(b) of the Migration Act 1958 (Cth)[1] to not revoke the mandatory cancellation of the applicant’s Bridging (Class WA)(Subclass 010) visa (the visa).
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
THE DECISION TO CANCEL THE APPLICANT’S VISA
On 2 January 2024 the Applicant’s visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment of over 12 months.[2]
[2] G documents, G11 and G12.
The Applicant sought revocation of the cancellation decision on 18 January 2024 and made representations in support of revocation.[3]
[3] Ibid G12 and G13.
On 9 October 2024, a delegate of the Minister decided not to revoke the cancellation decision (the non-revocation decision).[4] The Applicant applied to the Tribunal for review of the non-revocation decision on 11 October 2024.[5] The Tribunal heard the matter on 17 December 2024. The Applicant is serving a sentence of imprisonment at Barwon Prison. He attended the hearing in person.
[4] Ibid G4 and G5.
[5] Ibid G2.
LEGISLATIVE FRAMEWORK
Under s 501(3A), the Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by sub-s (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person:
(i)a written notice that sets out the original decision; and
(ii)particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(3A) The notice under subsection (3) must be given in the prescribed way.
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
…
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
ISSUES BEFORE THE TRIBUNAL
The Applicant does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a ‘substantial criminal record’ as defined under s 501(7). It follows that the Applicant cannot rely on s 501CA(4)(b)(i) to have the cancellation decision revoked.
Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is ‘another reason’ why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the applicant which I am required to read, identify, understand and evaluate.[6] Deciding whether or not to be satisfied that ‘another reason’ exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending.[7]
[6] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [22] and [36].
[7] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41, [14].
BACKGROUND
The Applicant is an Iranian citizen. He was born in Switzerland in 1985 but he was raised in Iran. He had a traumatic childhood in war torn Iran which included his house being bombed when he was seven years old causing severe hardship and homelessness. In May 2024, he was assessed by a clinical psychologist, Ms Alison Maynard, who diagnosed him with attention deficit hyperactivity disorder (ADHD) and post-traumatic stress disorder (PTSD). The applicant has a history of drug use, including ice and marijuana. He now realises that he turned to these drugs as a way of coping with symptoms of ADHD and PTSD. He also said that he took ice to stay awake during periods of intensive work.
The Applicant was a good student and after completing his secondary education he commenced university in Iran before moving to Singapore on a scholarship. He completed further studies in Germany where he lived for about four years. He came to Australia in August 2012 to do a PhD in structural design (mechatronics). He has worked all over Australia in mechatronics as a breakdown technician mainly in the construction and mining industries.
In November 2015, the Applicant applied for a protection visa which was refused by a delegate of the Minister in October 2017. The Applicant applied successfully for the review of that decision. By decision dated 24 June 2024, the Tribunal (differently constituted) accepted the Applicant’s claims that he would be at risk of harm and persecution if he were returned to Iran and found that the applicant is a person in respect of whom Australia has protection obligations. The application for a protection visa has been remitted for reconsideration by the Minister but no further decision has been made.
On 16 July 2024, he was granted a Bridging E (class WE) Bridging E (General) (subclass 050) visa which maintains his immigration status as a lawful non-citizen whilst in prison or detention.[8]
[8] Respondent’s further supplementary documents, S24 p 458 – 61.
The Applicant currently expects to be released from prison on 26 January 2025 and transferred to immigration detention.
Direction 110
The Tribunal is bound by s 499(2A) to comply with any directions made under the Migration Act. In this case, Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) has application.
For the purposes of deciding whether to refuse a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision-maker’s application of the Primary and Other Considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
Informed by the principles in paragraph 5.2 above, I must take into account the primary and other considerations in the Direction.
The primary considerations are:[9]
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
[9] Direction 110 at cl 8.
The other considerations are:[10]
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on Australian business interest
[10] Ibid cl 9(1).
The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations.[11]
CONSIDERATION
[11] Ibid cl 7(2).
Protection of the Australian community – 8.1 of Direction 110
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[12] As required by paragraph 8.1(2) of the Direction, I give consideration below to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
[12] Ibid cl 8.1(1).
The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 110
The Applicant’s criminal record is set out in the report from the Australian Criminal Intelligence Commission.[13]
[13] G documents, G6.
The Applicant was convicted in the Dandenong Magistrates Court on 12 May 2020 for offences related to possession of a firearm. A community correction order was imposed for 12 months (which he subsequently breached). The applicant explained that the firearm in question was a rusty old revolver which he was modifying to be a pen holder for a client. There was no ammunition. He pleaded guilty on the advice of his lawyers to avoid wasting time away from work.
On 10 November 2023, the Applicant was convicted for attempted arson, theft (three changes), dishonesty offences (14 charges) and contravening a community correction order. A custodial sentence of 21 months imprisonment was imposed for the attempted arson which involved throwing a Molotov cocktail at the house of his former partner on 30 June 2022. An additional three months imprisonment was imposed for the other offences resulting in a total term of imprisonment of 24 months.
In relation to the attempted arson, the sentencing magistrate said:[14]
I find that this offence is a very serious example for an offence of this nature. You had been in a relationship with [your former partner] for some months in 2014. And that relationship had ended when she obtained a family violence intervention order against you. You had not seen her for seven or eight years. …
While I do not have the specific details of what occurred, I do find that this offence occurs in the context of family violence. The act of you attending [your former partner] house at around 5 o’clock in the morning, and throwing a flaming Molotov cocktail at her front door, in the context of the previous relationship, can only be intended by you to inspire fear and terror in [your former partner].
… This offence I find to be at the more serious end of the scale for offences of this nature. I find that this offence is motivated by revenge, in the context of family violence, in a manner designed to strike fear into the heart of your victim.
… It is made particularly more disturbing and aggravating in that it had been some seven years since you have seen [your former partner]. An attack on her property of this nature, after being absent for so long, could only be designed to make her feel all the more traumatised and unsafe. I find it very difficult to find anything other than you intended to inflict serious emotional harm on the victim by you attempting to set fire to her house. I have received, and take into account, the victim impact statement of [your former partner], where it is clear your offending has had significant impact on her.
[14] Ibid G7, 49-50.
In relation to the theft and dishonesty charges, the sentencing magistrate said:[15]
The remaining series of offences are dishonesty offences which occur in the context of you being homeless for a period of time, having unstable employment, and apparently unable to find a foothold in the community. The offences involve items often not of significant value … that you believe you required to continue your business as a mechanic. …
The offences that I’m talking of, obviously, are the theft of the petrol card and subsequent 12 deceptions; retention of stolen goods, being the horse float; theft of the Ducato van from [the victim], which was ultimately recovered outside an address in Warmington Road, Sunshine; handle stolen goods, being the wallet of [the second victim]; possession of proceeds of crime, being the number of cards; and the theft of a Hino truck from SD Motors.
[15] Ibid 50.
In his statutory declaration provided under cover of a letter from Refugee Legal dated 6 September 2024, the applicant said:[16]
[1] I am now aged 39 and have had time to reflect on my past criminal offending. I accept responsibility for my criminal convictions, and I am remorseful about my offending behaviour.
[2] I recently decided to withdraw my appeal of the crimes for which I was convicted at the Sunshine Magistrates Court on 11 November 2023. This demonstrates my increased insight into my criminal offending behaviour and my remorse.
[16] Ibid G19.
The letter from Refugee Legal dated 6 September 2024 restated that the applicant did not dispute the offending conduct for which he was convicted and that he appreciates the severity of his offending behaviour which included ‘throwing a Molotov cocktail at the brick wall at the front of a house where a former partner, of some seven years earlier, was residing.’[17]
[17] Ibid G16.
The Applicant now disowns these comments and denies the offending conduct except for a traffic offence. He denied the attempted arson and told the Tribunal that he was not present at the house where the attempted arson took place. He says that he will now pursue appeals against the convictions despite the record[18] showing that his appeal from the Sunshine Magistrates Court convictions was struck out in the County Court on 10 July 2024.
[18] Respondent’s further supplementary documents, S23 p 456
I reject the Applicant’s evidence that he was not present at the scene of the attempted arson and that he did not engage in the behaviour for which he was convicted. The Tribunal must accept the conviction which forms the basis for the cancellation decision.[19] It is of great concern that the Applicant now denies the convictions in the Sunshine Magistrates Court which arose from a contested hearing after a not guilty plea. There is no adequate explanation for why the Applicant signed a statutory declaration accepting responsibility for his convictions and now contradicts that declaration. I do not accept the Applicant’s explanation that he made the declaration because his lawyers told him “that this was the best way.” Under cross examination, he accepted that he read the statutory declaration before signing it, but now disagrees.
[19] HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202 at [78].

The Applicant’s offending for which he has been convicted amounts to very serious conduct over a period of more than two years. The act of throwing a flaming Molotov cocktail at the door of his ex-partner’s house is an act of violence against a woman which is viewed very seriously by the Australian government and community. Further, the Applicant has shown signs of a dishonest character by the acts of theft and the 12 separate charges of obtaining property by deception through the repeated use of a petrol card. The total sentence of 24 months imprisonment imposed by the magistrate reflects the seriousness of the offending. The frequency and trend of increasing seriousness offending is of great concern. I also consider the cumulative effect of the repeated offending and the fact that the Applicant’s more serious offending happened when he was subject to a Community Corrections Order which indicates a disregard for authority.
I conclude as to the nature and seriousness of the Applicant’s conduct that it was very serious. It is a very significant factor in terms of whether I am satisfied that there is ‘another reason’ to set aside the non-revocation decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 110
In considering the need to protect the Australian community from harm, I 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 repeated, is so serious that any risk that it may be repeated may be unacceptable.[20] As required by paragraph 8.1.2(2) of the Direction, I also 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).
[20] Direction 110 at cl 8.1.2(1).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.[21] Her Honour said that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future. It is my view based on the following reasons that the Applicant’s 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 is unacceptable.[22]
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 110
[21] (2014) 225 FCR 424.
[22] Direction 110 at cl 8.1.2(1).
If the Applicant were to engage in further similar criminal offending, the nature of the harm would be very serious. By committing an act of attempted arson and many dishonesty offences, the Applicant has caused significant trauma and property loss to his victims. If the Applicant continued to engage in similar conduct it would have serious consequences.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 110
The Applicant has failed to express any genuine remorse for his offending, although he did say that he would not offend in the future and that he wanted to concentrate on his work if released.
It is concerning that the Applicant disowns the statements made in the statutory declaration in September this year. The effect of denying his most serious offending is that his statements of remorse in his statutory declaration now have no foundation. The sentencing magistrate on 10 November 2023 noted that the Applicant had not displayed any remorse whatsoever for the offending.[23] Nothing much has changed. At the Tribunal hearing, the Applicant expressed limited regret about modifying the firearm and “keeping the vehicles” but he disputed the gun charges and the attempted arson charge. I find that the Applicant has expressed no genuine remorse about the offending and he has showed no insight into the harm caused by his offending.
[23] G Documents, G7 at 51.
The Applicant has been in prison or detention since about August 2022. During that period he has engaged in very significant education[24] and work programs offered by the prisons. This indicates a desire to improve himself and to arm himself with skills that will help him reintegrate into society when released. He engaged in two anger management counselling sessions with a psychologist on 10 and 17 April 2024. Further, since being diagnosed with PTSD and ADHD, the Applicant has availed himself of counselling by a psychologist so as to address his PTSD and ADHD. He also said that he would engage with any programs required for his parole. These are positive factors which suggest some steps towards rehabilitation have been taken by the Applicant.
[24] Respondent’s supplementary documents, S1 – certificates from Kangan Institute.
However, there is no documentary evidence of any other courses aimed at rehabilitation more generally, but the Applicant said that he has engaged in drug and alcohol courses, anger management and similar courses directed at his rehabilitation. He said the relevant certificates were lost when he was transferred between prisons. I have some doubt about that because, first, the Applicant had the opportunity of obtaining some form of replacement documentary evidence since he first sought revocation of the cancellation decision by completing a personal circumstances form dated 18 January 2024.[25] Second, when completing the questionnaire in that form about any courses or programs, the Applicant only referred to violence programs and PTSD sessions and gave no other details or documentation relating to other rehabilitative programs. Third, at the hearing he failed to articulate any significant learnings from the rehabilitative programs he allegedly attended. Fourth, a parole suitability assessment report dated 1 November 2024 by Corrections Victoria noted that the Applicant did not complete any drug and alcohol programs during his current custodial sentence.[26]
[25] G Documents, G13 at 93-107.
[26] Respondent’s further supplementary documents, S21 at 445.
Instead of providing evidence that he was rehabilitated, the Applicant’s evidence was primarily focussed on contradicting the facts which formed the basis of his convictions. He explained why he denied the attempted arson and suggested there was nothing dishonest about the circumstances of the thefts and retention of stolen goods. He said that he was not given a fair trial and that he would be pursuing an appeal. He provided a detailed contradiction of facts in writing on 10 and 12 December 2024 which he relied upon at the hearing.
I am also concerned by the incidents of aggression and disrespect for authority shown by the Applicant when he was in detention as detailed in a report for the period April to June 2024.[27] The Applicant at first denied the incidents but then accepted that he did break a window and kick a wall but he said that he did so because his medication had been taken away. He expressed no remorse for his behaviour and took no responsibility for it.
[27] G10 p 78 – 81.
Direction 110 requires that information and evidence from independent and authoritative sources should be given appropriate weight. In terms of the risk of re-offending, there is a detailed assessment report[28] from Forensic Intervention Services Corrections Victoria dated 3 October 2024 based upon two face-to-face sessions totalling 3.5 hours. The report considered dynamic and static factors so as to assess the risk of re-offending. It noted the violent incident of attempted arson and other acts of family violence which resulted in intervention orders being made. It noted that the Applicant does not accept responsibility for his index offence and interpersonal violence. It noted the Applicant’s significant early life trauma and the need for further treatment such as the talking change program, the moderate intensity violence program and the wised-up program. The report concluded that the Applicant is considered to be at moderate risk of violent re-offending.
[28] Respondent’s further supplementary documents, S20.
There is another report from a clinical psychologist, Alison Mynard, dated 5 May 2024.[29] She notes the Applicant’s childhood trauma and his occasional use of ice and marijuana. She said that the applicant has significant difficulty with his regulation of his impulses and that he appears to be assisted with medication for both PTSD and ADHD. She said he would benefit from mental health interventions, including trauma-based therapies, which would work towards recovery from his trauma symptoms and PTSD. She recommended ongoing medication and review from a psychiatrist regarding his PTSD and ADHD, treatment by a clinical psychologist for ADHD, trauma informed psychological interventions and cognitive processing therapy.
[29] G Documents, G20 135-43.
When asked about his plans if released into the community, the Applicant said that he would stay away from drugs and later go to Western Australia to work in the mining industry. He said that he could stay with a friend in Melbourne when first released. This friend gave oral evidence that she would accommodate him at her apartment and that she was a social worker and would provide support for him. The offer of accommodation and a stable environment with support would assist the Applicant when released, but it is of concern that the Applicant did not articulate any more definite plans about how he would continue to rehabilitate himself and whether he intended to follow the recommendations made by Ms Mynard about seeing a psychiatrist, engaging in trauma informed psychological interventions or cognitive therapy.
I find that the Applicant has not engaged in adequate rehabilitation and that he has a moderate risk of further violent re-offending which represents an unacceptable risk to the Australian community.
Conclusion as to protection of the Australian community – 8.1 of Direction 110
The Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[30] The Applicant has committed serious crimes and I consider that a moderate risk of further violent re-offending is a risk that is unacceptable to the Australian community. In the circumstances where there remains a significant risk of re-offending, I conclude that the protection of the Australian community is a factor that weighs heavily against revoking the cancellation decision.
[30] Direction 110 at cl 8.1(1).
Family Violence – 8.2 of Direction 110
The Applicant has engaged in family violence. In considering the seriousness of the family violence engaged in by the Applicant, the following factors in clause 8.2(3) are relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i)the extent to which the person accepts responsibility for their family violence related conduct;
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)efforts to address factors which contributed to their conduct; and
(d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non-citizen’s migration status, should the non-citizen engage in further acts of family violence.
The Applicant gave evidence that he has engaged in three significant relationships from about 2014 until he was incarcerated in August 2022. The first relationship lasted one and a half years from 2014 to mid-2015. As noted by the sentencing magistrate, that relationship ended when the Applicant’s partner obtained a family violence intervention order against the Applicant. Despite the existence of this intervention order, the Applicant denies any family violence. Further, it was his partner from this period who was the victim of the attempted arson on 30 June 2022. The attempted arson was the most serious act of family violence by the Applicant.
The Applicant’s second relationship lasted about two years. He admitted putting a tracking device on her because he thought she was being unfaithful. He told her about the device about one month later and he said that he did not know that this was unlawful.
A police incident report[31] dated 23 June 2018 recorded a complaint that on 24 February 2018 the Applicant hit his partner whilst she was in her car with her two-year-old daughter. The report stated:
On this day the protected person has attended at psychologists appointment and disclosed previous assaults and escalating violent behaviour that respondent has committed against her. In amongst these disclosures are incidents of violence in front of the 2 year old child of the protected person, and kicking at her vehicle and previous assaults. The psychologist has contacted police to attend. Protected person highly emotional, visibly upset and concerned for respondent. During conversation, stated that she had blocked respondent’s phone number due to constant messages and threats to hurt… and to join the Hells Angels.
Checks reveal the respondent has been in two other violent relationships with other females, which have resulted in intervention orders being put in place. Police believe the order necessary to protect the protected person and her child.
[31] Respondent’s supplementary documents, S5 174-6.
The Applicant denied the above incident and said that he never hit her and that she was bi-polar.
A further police incident report[32] dated 1 October 2018 recorded that there was an intervention order in place and that the Applicant had repeatedly emailed his partner causing her to be ‘fearful that the behaviour is escalating’ and that she was ‘scared that if the resp behaviour escalates then her daughter could be in danger’. The Applicant blamed his partner and said that she had sent the emails.
[32] Ibid 122.
Another relationship was on and off for about four years. There is a police incident report[33] dated 27 October 2021 which records an incident of family violence as follows:
AFM tried to grab her keys back when RESP pushed AFM onto the bed and choked her for approx 30 seconds. The RESP squeezed throat with enough force and duration to heavily impact her breathing and cause her to cough for a while after the incident. …
AFM disclosed to police of an incident on 24 September 2021 where RESP slapped AFM’s mobile phone off her hand which caused it to fall on her face and resulted in a cut lip. AFM stated that RESP’s actions were unprovoked. AFM also disclosed of historical FV incidents between 2017 and 2021 where RESP was physically violent towards AFM which resulted in injuries (bruises, laceration or knee and bump on forehead). AFM has taken photographs of injuries since 2017. All FV incidents involved arguments about their finance however AFM does not recall specific details of each incident.
[33] Ibid 167-8.
When asked about the above report, the Applicant denied all of it. He said that he would yell or swear but he never hit his partner.
I reject the Applicant’s evidence and find that he engaged in family violence, including physical violence that caused injury and fear, on numerous occasions from at least 2017 until 2022. My finding is supported by the assessment report from Corrections Victoria dated 3 October 2024 which noted that the applicant’s denial of violence:[34]
was not consistent with file review which identified the following family violence incidents 29/06/2014, 09/09/2014, 23/06/2018, 26/09/2018, 10/03/2020, 27/10/21, 13/06/22, 08/09/22,
Served intervention orders 12/12/23, 4/10/23, 22/11/22, 21/11/22, 25/10/22, 25/08/22, 24/08/22 (2), 12/05/2020, 09/04/20, 28/02/20, 11/09/18, 07/07/15, 20/06/2015.
[34] Respondent’s further supplementary documents, S20 at 425.
The repeated acts of family violence were frequent and had a significant cumulative effect. The Applicant has inflicted violence on each of the three women with whom he had a relationship. There was a trend of increasing seriousness culminating in the most serious act of family violence on 30 June 2022 when he threw a flaming Molotov cocktail at his ex-partner’s house for which he was arrested later that year. Despite intervention orders, the Applicant continued to engage in acts of family violence. The Applicant shows no signs of rehabilitation and accepts no responsibility. He often blamed the victim and has no insight into the harm that he has caused. He denies the family violence and has not addressed what is clearly a significant and worrying problem.
It is of great concern that the Applicant does not even recognise that he has a problem with family violence. He has not participated in any rehabilitative programs directed towards family violence. There is no evidence that his recent counselling from a psychologist is addressing this problem.
The assessment report dated 3 October 2024 said with respect to interpersonal aggression and insight into violence:[35]
[The applicant] has engaged in aggressive behaviours consistently in his interpersonal relationships as evidenced by his lengthy ejustice (30/09/2024) family violence summary noting 3 current FV IVO Finals ending 16/10/2024, 21/11/2027 and 31/12/2060. His interpersonal aggression appears to be predominantly towards women. His index offence of throwing a Molotov cocktail at an ex-partner’s front door and self-reports of tracking an ex-partner were occasions of this.… [The applicant] is considered to be at the precontemplation stage of change for this treatment target due to his limited awareness of the ways he uses interpersonal aggression and the denial of IVO’s.
[The applicant] does not accept responsibility for his index offence and interpersonal violence as he denied a large part of the offending behaviour and a large number of intervention orders he has received.
[35] Ibid 429.
The assessment report included a structured professional judgement based on the spousal assault risk assessment guide (SARA). Based on the SARA, the Applicant was considered to be a moderate risk of intimate partner violence. This level of risk is absolutely unacceptable to the Australian community.
The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of remaining in Australia. Given the serious nature and extent of family violence engaged in by the Applicant, the Government’s concerns would be very significant.[36] This is a factor that weighs extremely heavily against revoking the cancellation decision.
[36] Direction 110 at cl 8.2(1).
Strength, Nature and Duration of Ties to Australia – 8.3 of Direction 110
This primary consideration provides at paragraph 8.3 of Direction 110:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

The Applicant has lived in Australia since he was about 27 years old. He has no relatives in Australia. He studied his PhD at RMIT in Melbourne when he first arrived in 2012. The Applicant has never had difficulty obtaining employment and he has worked all over Australia in mechatronics as a breakdown technician mainly in the construction and mining industries. He has never had to draw upon social security benefits whilst in Australia. In prison he completed numerous certificates including in engineering, civil construction, general education, digital technologies and cleaning. His prison education summary report is very impressive. The Applicant’s history of work and education represents a significant positive contribution to Australia.
The Applicant had three significant relationships with women but they have all been marred by family violence and he has no current partner. He has a friendship with a woman who gave oral evidence to the Tribunal in support of the Applicant. She finds him a calming influence and would be disappointed if he were not released. He met her through work and since early 2024 she has had regular contact with him in prison. She has offered him accommodation with her if he is released.
This is a factor that weighs in favour of revoking the cancellation decision but only moderately so.
Best interests of minor children – 8.4 of Direction 110
The Applicant has no children. He and the Respondent agreed that this was not a relevant factor on this application.
Expectations of the Australian community – 8.5 of the Direction
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[37] The Applicant has failed to obey the laws of Australia and has engaged in serious family violence. He would therefore be expected to be removed from the community. The Applicant’s criminal conduct and family violence was serious and there is an unacceptable risk of further re-offending.
[37] Direction 110 at cl 8.5(1).
I conclude that the Australian community expects that the Australian government should not revoke the cancellation decision. This is a factor that weighs heavily against revoking the cancellation decision.
Other Considerations
In deciding whether there is ‘another reason’ to revoke the cancellation of the Applicant’s visa, I must also take into account the ‘other considerations’ listed in the Direction, where relevant, but these are not exhaustive.[38]
[38] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
Legal Consequences of Decision – 9.1 of Direction 110
As previously noted, the Tribunal (differently constituted) accepted the Applicant’s claims that he would be at risk of harm and persecution if he were returned to Iran and found that the Applicant is a person in respect of whom Australia has protection obligations. The application by the Applicant for a protection visa has been remitted for reconsideration by the Minister but no further decision has been made. In the meantime, the Applicant has been granted a Bridging E (class WE) Bridging E (General) (subclass 050) visa. In these circumstances, the consequence of a decision not revoking the cancellation decision is that the Applicant will likely be taken into immigration detention when he is released from prison as expected on 26 January 2025. If his application for a protection visa is finally determined and refused, then in light of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37 and the protection finding made in respect of the Applicant, the practical result is that the Applicant will likely be released into the community on a Bridging R (class WR) visa (BVR).
The expected further time in detention would have a negative impact on the Applicant and may cause his mental health to deteriorate. The prospect of being on a BVR once released into the community compared to a visa free of conditions would also negatively impact the Applicant although only moderately so. In these circumstances it is very unlikely that the Applicant will be removed from Australia or remain in detention for a lengthy period of time even if I decide to affirm the decision under review. However, there are some negative consequences of an affirmation and therefore this is a factor that weighs in favour of revoking the cancellation decision but only moderately so.
Extent of impediments if removed – 9.2 of Direction 110
As previously stated, the Applicant is unlikely to be removed to Iran and therefore the extent of impediments if removed is not a relevant factor.
Impact on Australian business interests – 9.3 of Direction 110
The Applicant has very specialised skills in mechatronics and he has repaired machinery in the mining and construction industries. He said that his skills are in short supply. There was very little evidence about how an adverse decision would impact Australian business interests but I am prepared to give this factor some weight in favour of the Applicant because he has been delivering an important service in Australia.
CONCLUSION
I have considered the specific circumstances relating to the Applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I am satisfied that there is ‘another reason’ to revoke the cancellation decision.
The primary considerations of the protection and expectations of the Australian community and family violence weigh against the applicant. The only primary consideration that weighs in favour of the applicant is his ties to Australia but they are not significant because he has no relatives here or persons with whom he has a strong relationship. The Applicant grew up in Iran and has only been in Australia for 12 years. His most significant connection to Australia is through his work from 2012 to 2022. I give no weight to his past relationships because they are not ongoing and were marred by family violence.
The only other countervailing considerations are legal consequences and impact on Australian business interests to which I have given little weight for reasons expressed above.
The most concerning aspect of the Applicant’s character is that he has engaged in repeated serious acts of family violence and yet he fails to accept that he has a problem in that regard. His ongoing denials of family violence mean that he has not addressed this problem and therefore there is an unacceptable risk that he will cause further harm by family violence in the future. The inherent nature of family violence is so serious that even strong countervailing considerations may be insufficient to justify not revoking a mandatory cancellation,[39] although I note in this case that the countervailing considerations are not very significant.
[39] Direction 110 at cl 5.2(8).
I find that the primary considerations of the protection and expectations of the Australian community and family violence strongly outweigh the countervailing considerations. I am not satisfied that there is another reason to revoke the cancellation decision.
The decision under review is affirmed.

81. I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.

..................[sgd]......................................................
Associate
Dated: 20 December 2024

Date(s) of hearing: 17 December 2024

Applicant’s Representative: Self-represented

Solicitors for the Respondent: Minter Ellison

Date(s) of hearing:	17 December 2024
Applicant’s Representative:	Self-represented
Solicitors for the Respondent:	Minter Ellison