VVCF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2023] AATA 2217

VVCF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 2217 (26 July 2023)
Division:                  GENERAL DIVISION
File Number(s):      2023/3123
Re:VVCF
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Antoinette Younes

Date: 26 July 2023
Place:Sydney

The Tribunal affirms the decision under review.
................................[SGD]........................................
Deputy President Antoinette Younes
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 99 – nature and seriousness of offending conduct – protection of the Australian community – family violence committed by the non-citizen – best interest of children - expectations of the Australian community – impediments to removal – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 43
Migration Act 1958 (Cth) ss 36, 48A, 48B, 189, 197C, 198, 499, 501, 501CA
Migration Regulations 1994 (Cth) reg 2.12AA, 050.511
CASES
Ali and Minister for Home Affairs (Migration) [2018] AATA 2512
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
GBV18 v Minister for Home Affairs [2020] FCAFC 17
HMFZ and Minister for Home Affairs (Migration) [2018] AATA 3861
Hofman and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 3740
Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580
Ibrahim v Minister for Home Affairs [2019] FCAFC 89
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Nepata v Minister for Home Affairs [2019] FCA 1197
Patterson and Minister for Home Affairs (Migration) [2019] AATA 5175
RGCZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3051
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Deputy President Antoinette Younes
26 July 2023
BACKGROUND

The Applicant is a 26 year old male who is a national of Tonga. He first arrived in Australia in 2018 as the holder of a Temporary Work (Subclass 403) visa. He has not left Australia since his arrival.[1] On 4 July 2020, he applied for a Protection (Class XA) (Subclass 866) visa (the Protection visa), which was refused by a delegate of the Minister. The Applicant sought review by the Administrative Appeals Tribunal (the Tribunal) and the Tribunal, differently constituted, affirmed the delegate’s decision not to grant the Protection visa. The Applicant did not seek judicial review of the Tribunal’s decision.[2]
[1] G41, 210, Ex 6.
[2] G19, 122-127, Ex 6.
Associated with the application for a Protection visa application, the Applicant was granted a Bridging E (Class WE) (Subclass 050) visa (the visa), which was cancelled on 7 July 2021 and on 3 May 2023, a delegate of the Minister decided not to revoke the cancellation.[3] It is that delegate’s decision which is the subject of this review.
[3] G2, 7, Ex 6.
The Applicant claims to be in a relationship with Ms X, and they have two minor children.
The Applicant has the following criminal history:
·On 11 November 2020, the Applicant was convicted of Contravene prohibition/restriction in AVO (domestic) and Common assault (DV) – T2 and Destroy or damage property (DV) in the Local Court of New South Wales in Fairfield for which the Applicant was directed to enter into a Community Correction Order for 12 months and nine months.[4]
·On 22 June 2021, the Applicant was convicted by the Local Court of New South Wales in Penrith of Common assault (DV), Stalk/intimidate intend fear physical etc harm (domestic) T2, and Contravene prohibition/restriction in AVO (domestic) – T2.[5]
·The three prior matters were called up on 22 June 2021 for re-sentencing, namely Common assault (DV), Contravene prohibition/restriction in AVO (domestic) and Destroy or damage property (DV).
·On 22 June 2021, the Local Court of New South Wales in Penrith sentenced the Applicant to an aggregate term of imprisonment of 13 months on all charges.[6]
[4] G6, 36-38, Ex 6.
[5] G6, 36-38, Ex 6.
[6] G6, 36-38, Ex 6.
On 7 July 2021, the Applicant's visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act). The delegate determined that the Applicant did not meet the character test under s 501(6)(a) because he has a 'substantial criminal record' on the basis of having been sentenced to a term of imprisonment of 12 months or more.[7]
[7] G42, 211-215, Ex 6.
The Applicant made representations and on 3 May 2023, the delegate found that the power under subsection 501CA(4) of the Act to revoke the cancellation under s 501(3A) of the Act was not enlivened.[8]
[8] G5, 7-35, Ex 6.
LEGISLATION
Section 501(3A) of the Act compels the Respondent to cancel a visa in certain circumstances:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record.’
Section 501(7) of the Act provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
(e)the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
(f)the person has:
(i)been found by a court to not be fit to plead, in relation to an offence; and
(ii)the court has nonetheless found that on the evidence available the person committed the offence; and
(iii)as a result, the person has been detained in a facility or institution.
Section 501CA of the Act applies if the Respondent makes a decision under subsection 501(3A) of the Act to cancel a visa that has been granted to a person.
Section 501CA(4) of the Act confers on the Respondent the discretion to revoke the Mandatory Visa Cancellation Decision under s 501(3A).
Section 501CA(4) provides:
(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.
MINISTERIAL DIRECTION NO. 99
The Respondent is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. Except for the Respondent acting personally, the Direction must be applied by all decision-makers, such as the Respondent’s delegates and the Tribunal.[9]
[9] Migration Act 1958 (Cth) s 499(2A); CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 [4].
On 23 January 2023, the Respondent signed Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 99). The Direction commenced on 3 March 2023 and revoked the previous Direction 90.
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
A decision-maker must take into account the considerations identified in paragraphs 8 and 9 of the Direction, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
(1)Protection of the Australian community from criminal or other serious conduct;
(2)Whether the conduct engaged in constituted family violence;
(3)The strength, nature and duration of ties to Australia;
(4)The best interests of minor children in Australia; and
(5)Expectations of the Australian community.
Paragraph 9 of the Direction identifies the non-exhaustive list of other considerations:
(1)Legal consequences of the decision;
(2)Extent of impediments if removed;
(3)Impact on victims; and
(4)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, “information and evidence from independent and authoritative sources should be given appropriate weight.” Paragraph 7(2) provides that primary considerations “should generally be given greater weight than the other considerations.”
Material before the Tribunal
The Tribunal has the following material before it:
·The Respondent’s Statements of Facts, Issues and Contentions (SOFIC);
·Applicant’s letter to the Tribunal, dated 18 May 2023;
·Ms X’s (Applicant’s partner) letter to the Tribunal, dated 11 May 2023;
·Residential Tenancy Agreement for the period from February 2020 until February 2021, referring to the Applicant and Ms X as the tenants; and
·Respondent’s Tender Bundle, and G-Documents.
All of these documents formed Exhibits 1-6.
The Applicant and Ms X gave evidence in the course of the hearing on 17 July 2023.
FINDINGS AND REASONS
The character test is defined in s 501(6) of the Act. The character test is generally concerned with the protection of the Australian community from the risk of harm. The character test deems persons to be of bad character if they fit any of the criteria listed.
A person does not pass the character test only if one of the paragraphs in s 501(6) applies to that person. In this case, the delegate determined that the Applicant did not meet the character test under s 501(6)(a) because he has a 'substantial criminal record' on the basis of having been sentenced to a term of imprisonment of 12 months or more.
It is not in dispute, and the Tribunal finds that the Applicant does not meet the character test, because he has substantial criminal record, as defined. The issue before the Tribunal is whether the cancellation of the visa should be revoked.
The purpose of the Direction is to guide decision-makers exercising powers under the Act. Delegates and the Tribunal must generally follow the Minister’s Direction. However, the Direction does not dictate the way in which the discretion is to be exercised, but rather it creates a framework within which the discretion vested in the decision-maker is lawfully exercised. The Direction identifies certain principles which provide a framework within which decision-makers should approach their task.[10] It prescribes relevant considerations which must be taken into account. It provides guidance only as to the manner in which they are to be balanced. The Direction assists decision-makers with a width of discretion that enables them to take into account different circumstances that may arise in order to reach a finding that is fair and rational in all the circumstances, taking into account crucial considerations.[11]
[10] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [80]–[81]. The Court was discussing Direction No 55, but the reasoning applies equally to Direction No 99.
[11] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [83].
The Direction does not determine rules of general application, but gives directions to the decision-maker, including the Tribunal, as to the policy to be applied in the exercise of the discretion conferred on it by s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) in exercising the power conferred by ss 501 and 501CA of the Act. The Direction does not derogate from the Tribunal’s duty to reach the correct or preferable decision in the particular case before it; the Direction has that end as its purpose.[12]
[12] Uelese v Minister for Immigration and Border Protection [2016] FCA 348 [50].
While decision-makers are bound to take into account certain considerations, they are not limited to those set out in the Direction.[13] The Direction specifies the relative, but not the actual, weight to be given to those considerations. To that extent, it imposes requirements on the exercise of the Tribunal’s discretion, but the Tribunal is obliged to examine the merits of the case and decide for itself.[14] The weight to be given to any particular matter is a matter for the decision-maker and cannot be the subject of some formulaic approach.[15] Phrases such as ‘should generally be given greater weight than the other considerations’ and ‘one or more primary considerations may outweigh other primary considerations’ have been interpreted as provisions that are intended to provide guidance to the decision-maker as to how the balancing exercise required by the Direction should be approached. These phrases leave it open to the decision-maker to adopt a different approach in the exercise of discretion in the individual case.[16] It is not the content of the Direction which determines the outcome of the exercise of the discretion, but rather its application by a decision-maker to the evidence and material in an individual case.[17]
THE PRIMARY CONSIDERATIONS
[13] GBV18 v Minister for Home Affairs [2020] FCAFC 17.
[14] See Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [21].
[15] Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 [127].
[16] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [83].
[17] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 [78].
Protection of the Australian community from criminal or other serious conduct
The Direction contemplates that decision-makers should have particular regard to the principle that ‘entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that 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.’[18] It indicates that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.[19] Whether there is a risk that a person would engage in specified conduct requires an evaluative judgment by the decision-maker. If the decision-maker is so satisfied, they have a discretion to refuse or cancel a visa, or revoke a visa cancellation.[20]
[18] Direction No 99, [8.1(1)].
[19] Direction No 99, [8.1(2)].
[20] See Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 [2]. The Court considered s 501(1), but the reasoning also applies to ss 501(2) and 501(3A).
The seriousness of the Applicant’s conduct
As mentioned earlier, the Applicant has been convicted of the following offences:
·On 11 November 2020, the Applicant was convicted of Contravene prohibition/restriction in AVO (domestic), Common assault (DV) – T2 and Destroy or damage property (DV) in the Local Court of New South Wales in Fairfield for which he was directed to enter into a Community Correction Order for 12 months and nine months.[21]
·On 22 June 2021, the Applicant was convicted by the Local Court of New South Wales in Penrith in relation to the charges of Common assault (DV), Stalk/intimidate intend fear physical etc harm (domestic) T2, and Contravene prohibition/restriction in AVO (domestic) – T2.[22]
·The three prior matters were called up on 22 June 2021 for re-sentencing, namely Common assault (DV), Contravene prohibition/restriction in AVO (domestic) and Destroy or damage property (DV).
·On 22 June 2021, the Local Court of New South Wales in Penrith sentenced the Applicant to an aggregate term of imprisonment of 13 months on all charges, with a non-parole period of six months.[23]
[21] G6, 36-38, Ex 6.
[22] G6, 36-38, Ex 6.
[23] G6, 36-38, Ex 6.
Apart from a driving conviction in 2020, the circumstances of the Applicant’s offending relates to family violence. The victim is his partner, Ms X. The Applicant and Ms X have been in a relationship since 2018.

On or around 25 May 2020, during an argument with Ms X, the Applicant headbutted and punched the bedroom wall causing a 15cm hole. He also headbutted the spare bedroom wall, causing a 10cm hole.”[24] The Applicant was consequently placed on a 12-month conditional release order without conviction. An apprehended violence order (AVO) was put in place to protect the victim, Ms X.
[24] Respondent’s Tender Bundle (TB), 32, Ex 5.
Soon after the above incident, on 26 October 2020, the Applicant and Ms X were arguing about their relationship. As he was trying to leave the house, Ms X followed him and fell to the ground while she was holding their child, who was three months old at the time. The Applicant became angry and slapped Ms X with an open palm with significant force.[25] The Applicant was convicted of Contravene prohibition/restriction in AVO (Domestic) and Common assault (DV)-T2. As this offending was in breach of his conditional release order, his previous offence was called up and he was also convicted of Destroy or damage property (DV). He was directed to enter into a 12-month and a 9-month Community Corrections Order (CCO).
[25] TB2, 40-41, Ex 5.
In relation to the above incident, the Applicant gave evidence that:
“VVCF: And then we had an argue in the house and I told her, I’m going to go for fresh air. I’m just going to walk for fresh air. Then she keep grabbing me and grabbing me telling me because she’s scared I might run away from them. But I said, no I’m just going to go for a walk and I come back. And then she was carrying [baby] on her (indistinct) here and then [child] was sleeping in the chair. So she followed me. She just followed me and I told her, go back. I’m going to go for a walk then I come back. But she kept following me and stuff. And then she followed me and she grabbed my back on the jacket. And then she tried to push me back in, then [baby] fell down. So that’s why I was slapping her because I was angry because she didn’t care – she didn’t care about the (indistinct) for me to come back, but she didn’t care about the baby. That’s what happened.
TRIBUNAL: So the baby had to see this – the two children. I know the younger one was only a few months old?
VVCF: Yes. Like as I said before it was only me and her on that time struggle. And me under all this one – like for me being a father to them – all her family and stuff, no one helped her. So it was me. I’m the one going to look after them, look after her and have to deal with all the stuff that her parents had to taught her – like teaching her before when she was growing up and stuff.
TRIBUNAL: What Mr Sheedy asked you, if you had agreed with the statement that you had stated that you smacked her in the face with your open left palm. That is what you were asked to comment on?
VVCF: Yes, I did.
TRIBUNAL: In front of the children? The children were there?
VVCF: Yes.
TRIBUNAL: And is that?
VVCF: It’s not a big one. It’s just a small one…But I slapped her because she care about pulling me back and then [baby] fell down. So instead of caring about the baby and leave me go – let me go – like, I’m telling you, me as a father for them on that time it was – it was so hard, honestly, it was so hard for me to look after them and deal with her.”[26]
[26] Transcript, 33-34.
On 19 April 2021, during an argument, the Applicant struck Ms X on her face while she was sitting on the edge of the bed, leaving a red mark on her face. Ms X then ran out of the room to leave the house, the Applicant cornered her in the loungeroom and said in Tongan “If you go to the police I will bash you.” During this encounter, one of the children walked to the Applicant and Ms X was then able to leave the house. She ran to the church grounds, where she was able to contact her family to come and get her. She hid until family arrived and drove her to the police station to report the incident. Police spoke to Ms X who was “crying, and visibly distraught. Red marks were visible on the right side of the victim’s face.”[27] The Applicant was convicted of the offences of Common assault (DV)-T2, Contravene AVO (domestic) and Stalk/intimidate intend to fear physical etc harm (domestic)-T2 (2021 offences).
[27] TB2, 55-56, Ex 5.
There is information before the Tribunal of other incidents which did not lead to formal charges.[28] The Applicant claimed privilege against self-incrimination in relation to one of these incidents, but he agreed that on 2 November 2022, there was an incident involving a physical altercation between the Applicant and another detainee at Villawood Immigration Detention Centre (VIDC) where it is reported that the Applicant physically assaulted the other detainee who fell on the ground after being chased by the Applicant.[29]
[28] TB1, Ex 5.
[29] G40, 195, Ex 6.
There is evidence of issues of concern towards Ms X at VIDC. During the hearing, the following exchange took place[30]:
[30] Transcript, 40-42.
“MR SHEEDY: …It says:
At about 4.30 pm on 7 October, the victim has attended Villawood Detention Centre with her two children, to allow them to visit you. And that during this visit, the accused began questioning the victim about her new relationship.
It says that:
The victim advised the accused that she would leave the children early…This has angered the accused, who stood up and grabbed a milk bottle from the table and approached the victim, causing the victim to flinch and fear that she may be assaulted by him.
Do you recall this incident?
VVCF: Well yes, I know this day, but all those stuff, it’s coming up on the (indistinct), yes, it’s not true.
MR SHEEDY:…Okay well - - -?
VVCF: I’m a bit stressed, I’m a bit stressed.
MR SHEEDY: I’ll keep going, and then I’ll offer you an opportunity to comment on it, sir?
VVCF: I’m a bit a stressed because, I didn’t even do all this stuff why do they have to write all this false thing here?
…
MR SHEEDY: It says that the victim has attempted to calm the accused down. In response to this the accused has grabbed the victim by the hair with his left hand and pulled her head sideways for a short period before being separated by the staff of the detention centre. Did you grab Ms [X] by the hair and pull her head sideways?
VVCF: No.
MR SHEEDY: What do you say happened?
VVCF: I didn’t do – I – the only thing I will tell you now I didn’t do anything. I didn’t do all this stuff. And I’m saying no to all this report.
TRIBUNAL: Why would this be noted here? Why do you think this information is reported here?
VVCF: Because they would have just reported me and made me look bad. For me, I had an argue with her, but I didn’t touch her hair or do all this stuff that is coming on the report. Because I know – trust me I know – detention centre, they would do anything to explain us, make us look bad.
TRIBUNAL: Do they?
VVCF: Yes, they are. I’ve been in that detention centre for nearly three years now. I’ve seen death. I’ve seen people nearly kill themselves. And those people, they don’t even care. And they will write a report, a false report, without the people – detainees inside there knowing what’s happening. Like this one here. As me, I’m a human, I’m saying I didn’t do this stuff. Sorry for raising my voice. But it’s a big stress because sometimes he read out stuff that I didn’t really do it. It’s just the detention centre writing a report. And that’s how they are. They just come there and sit. As long as they do their job and just write something and then go – make us look bad.
…
MR SHEEDY: Thank you. VVCF, it goes on to say that after the victim and children left in the following days you sent the victim numerous text messages, include comments like, ‘we fight and argue ‘cause you keep lying and hide stuff from me [Ms X]’. ‘You ruin everything [Ms X].’ ‘Okay you are fucking hiding around your shit then ruin my stiff’ – means stuff. And then also one that says, ‘don’t ever think you gonna away with this, okay’? Did you send those text messages to [Ms X]?
VVCF: I don’t remember sending those texts. And how did they get those texts?
MR SHEEDY: VVCF, it then goes on to say that on 13 October Ms [X] was contacted by the detention centre and was advised that this incident had been captured and recorded on CCTV footage. And she was urged to report the incident to police. It says that she then contacted and reported the incident to police and that she provided screenshot copies of the text messages she received. So I would suggest to you that unlike your earlier evidence, or your earlier suggestion to the tribunal, the report of this incident didn’t come just from detentions officers. It came from Ms [X]. What do you say about that?
VVCF: Well, it’s up to her with what she said. But my opinion, I didn’t. When people are angry and have their anger they start it up with telling all this stuff. And then when they relax and calm down they will realise what they did. But as for me and my answer, I didn’t really do those stuff.”
The Respondent contended that the information suggests that the Applicant’s perpetration of violence against women, including in the presence of his children, has not been isolated (even where such incidents did not lead to formal charges).[31] The Respondent argued that the Tribunal:
“should have regard to the totality of the evidence before it, and not just those matters that went before a Court. In so doing, the Tribunal’s task is not to determine guilt for any given situation; rather it may, in performing its administrative functions, be satisfied that certain events in fact occurred. The Tribunal can have regard to conduct for which there is evidence to support a factual finding that the conduct had occurred, even though there was no conviction in respect of that conduct. Viewed holistically, the applicant’s offending and other domestic conduct indicates a pattern of violence against women, including in the presence of children.”[32]
[31] TB1, Ex 5.
[32] Respondent’s SOFIC, [25], Ex 1.
It is correct that it is not the Tribunal’s task to determine guilt or otherwise. The Tribunal observes that in his letter to the Tribunal, dated 18 May 2023, the Applicant refers to incidents at VIDC and states:
“I would like to give my sincere apologies for any disruptive behaviours it did seem to the minister that I am a repeated offender but I express with great heartache and respect, being in a place like this I am surrounded by many criminals and I have been provoked in many situations that I have no choice but to act in self-protection…I blame no one but myself.”[33]
[33] Ex 2, 2.
Given that the Applicant acknowledges that disruptive behaviours had occurred at VIDC and although no charges were laid, the Tribunal is satisfied that the incidents do suggest a propensity of a problematic conduct indicting a degree of limited behavioural self-regulation on the part of the Applicant.
Significantly, the Applicant has breached conditional liberty orders imposed by the Courts. He gave evidence that he offended because of his children. He stated:
“VVCF:…I went in to gaol for AVO and then all the stuff, argument and stuff. I never meant to do all that stuff. So I went to jail for AVO the first time. And then (indistinct) the judge tell me, the police, don’t ever go back to that – to my kids’ mother because I’m going to be in trouble again. On that time there was no one to look after the two kids. So I just phoned – my partner just phoned my son. There was no one because her family – they were going like this. He already have the kids so they don’t care about her anymore. So I was the one that – looking after them. I worked. I looked after them. And even my family here in Australia, they helped them. Not her – growing up here in Australia and the mum and the family don’t – I’m not trying to point on the parents or nothing. But that’s what happened. I was the one. So I went into jail. I came back and they tell me, don’t go back. You’re going to breach the AVO. Well me as a father, I can’t go stay away far as 100 metres and just ring every day and see my kids hungry, see my kids no one there to look after them.
…
I break the law because I wanted to go and make sure they’re safe. Because on that time they were told to go back to Campbelltown. But when they go back to Campbelltown their family was too busy and she had to get a job to look after those two kids. And as me as a father I wasn’t good with that. I run – drive to North Sydney, drive back. I drive – the only option for me as a father growing up – I am father, is to just moved there and sleep with my kids every day and make sure they’re safe and give them food on the table. And I surely know that I break the law. So I would like to say sorry about that. But that’s how I am and love I got for my kids.
TRIBUNAL: Does that mean though, you would break the law again if it meant seeing your children?
VVCF: As I go through all this stuff here, I learn a lot. And especially staying in the detention centre, as me growing up I would never see any time of me breaking the law, even in my – back then in Tonga, I don’t even have a bad record in the police or whatever. I never do anything. But if you ask me, no I won’t. I learned a lot and I don’t want to put myself into trouble or risk that life again.”[34]
[34] Transcript, 31-32.
The Tribunal is not persuaded by the Applicant’s explanations; his behaviour demonstrates a disregard for the laws of Australia and, in particular, orders designed to protect the victim, which elevates the seriousness of his offending.
The Tribunal observes the following comments of the sentencing Court:
“The offences involved the assault of your partner, you struck her leaving a red mark on her face while she was sitting on the bed as a result of an argument between the two of you. That was in contravention of an AVO. There was already an AVO in place that said that you were not able to assault her. That carries a maximum penalty of two years imprisonment and then you intimidated her by threatening to bash her if she went to the police and to try and ensure the offence went undetected. She was obviously in some considerable fear of you and fled the house as a result.
Those offences were committed whilst you were on two community corrections orders. Those community corrections orders related to other matters of domestic violence, damaging a wall I think in one instance, the first instance in June last year and then October there was another assault and a contravene of an AVO. The fact that you were on those community corrections orders does not make the offences more objectively seriousness but what it does mean is there needs to be greater weight placed upon punishment and denouncing your conduct, that is that the Court has got to send you the message and to other people who are violent towards their partners, that the Courts will not tolerate repeated acts of violence towards loved ones.
In terms of the offending it was in the home of the victim, the children were present. That aggravates the offending and falls well-within that mid-range of seriousness for an offence of this type. I have told you what the maximum penalties are. Clearly you are a person who has got some considerable support in the community. Your partner obviously loves you and you work hard and support them but these repeated acts of violence have led you into custody and it is unclear although the sentence assessment report says that you are a low-risk of re-offending it is unclear to me that there is any real acceptance of the seriousness of violence towards your partner. It is just not to be tolerated.”[35]
[35] G7, [39]-[40], Ex 6.
Although one might suggest that a 13 months’ sentence is not relatively long, the Tribunal is of the view that it is significant and serious that both the 2020 and 2021 offences were committed in contravention of an AVO that was in place to protect Ms X. Moreover, the fact that the Applicant was sentenced to a term of imprisonment, which is the last resort in the sentencing hierarchy and reflects the seriousness with which the Court viewed the Applicant’s offending, reflects the seriousness of the offending. This is evident from the sentencing Court’s comments that the 2021 offences were “well-within the mid-range of seriousness” and “only a sentence of imprisonment is appropriate.”
In light of the above, the Tribunal finds that the Applicant’s conduct in relation to the offences with which the Applicant has been convicted, is very serious.
The Direction contemplates that acts of domestic violence are to be viewed ‘very seriously.’
The evidence indicates that the Applicant has been convicted of multiple family violence related offences, some of which occurred within a short time of each other, suggesting many things, including not learning from one’s mistakes, lack of insight and self-control, anger management issues, and so on. Two minor children have been involved; for example, Ms X was holding one of them when she fell during one incident.
The Tribunal acknowledges that Ms X attended the hearing and expressed her support to the Applicant and her intention to continue their relationship. The Tribunal is of the view that Ms X’s support does not reflect an underestimation of the seriousness of the Applicant’s offending conduct; she recognises the seriousness and was very tearful in giving evidence. She gave evidence about her own upbringing and being a child in a home where family violence occurred.
The Tribunal acknowledges Ms X’s willingness and desire to work through difficulties with the Applicant, but the Applicant’s domestic violence offences against her are very serious and reflect the magnitude of his criminal conduct.
For those reasons, the Tribunal is satisfied that the nature and seriousness of the Applicant’s criminal offending weigh heavily against revocation.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Direction states that decision-makers must have regard to the following considerations 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 has contended that there is not a significant risk of reoffending. The Applicant has provided evidence of participation in education courses, including Stress Management, Healing Affirmations, Positive Parenting Techniques, Health Relationships, Emotional Intelligence, Emotional Healing 101, Drug and Alcohol Abuse 101, Domestic Violence 101, Depression Management Building Self-Esteem in Children, Basic parenting 101, and Anxiety Therapy.[36] The Applicant said that he has learnt from the courses. In oral evidence, he gave evidence that those were online courses that took a few hours each to complete, and did not involve an instructor or ‘teacher’; he stated:
[36] Ex 2.
“MR SHEEDY: They’re online courses, aren’t they?
VVCF: And - course, yes, I do online. Obviously, there’s no one there to talk with online, so I just answer the question on the thing and that’s it.
MR SHEEDY: So would it be fair to say that the course involve you answering some questions which you then submit online?
VVCF: Yes, there’s no class there or teacher to go, and the only option they were telling us to - do it online, and that’s it, that’s how we do the…
MR SHEEDY: How long did it take you to do each of the courses?
VVCF: I think, one to two days.
MR SHEEDY: Four hours, yes?
VVCF: Some I can just answer the question quick, we got that in four hours.
MR SHEEDY: On my review of these certificates, VVCF, you completed, it looks like, 12 courses over about six days?
VVCF: Yes.
MR SHEEDY: So I would suggest to you that you couldn’t have done them any quicker than two courses per day, does that sound right?
VVCF: Come again, sorry?
MR SHEEDY: So you completed 12 courses over six days?
VVCF: Yes.
MR SHEEDY: So would you say you did about two courses per day?
VVCF: Not really remember, but, yes, be sure because I have activity, I go to the gym and there’s some activity on the day.
….
MR SHEEDY: And underneath that in your statement, you say:
I have learned a lot, that violence is never the answer to any situation. That no human, whether it is a man or a woman, no one deserves to be physically abused.
Is it your evidence that you learned that from that course?
VVCF: Yes, some I learned from the course, and some is just my own fault, because me growing up, I don’t - it’s normal, it’s just (indistinct) day stuff, domestic violence, but mistakes happen.”[37]
[37] Transcript, 37-39.

The Respondent contended[38] that the Tribunal should reject the Applicant’s claim that he is of “no significant risk” of reoffending as:
·     There is no psychological opinion providing any professional risk assessment of the Applicant’s likelihood of reoffending.
·     There is no evidence of any rehabilitation undertaken to address his propensity for violence, such as an anger management course or similar.
·     There is also evidence that the Applicant continues to be involved in violent incidents in detention. Past conduct may provide a guide as to likely future conduct and the Tribunal is “entitled to speculate as to what might happen in the future by reference to evidence of what had occurred in the past.”
·     The Applicant has previously been given the benefit of CCOs by the Courts. These have not deterred him from continuing to offend. This indicates a sustained disregard for law enforcement and an unwillingness to avail himself of several opportunities to rehabilitate while in the community.
·     The Applicant’s violent offending was directed at a member of his support system.
·     Considering the very serious nature of the Applicant’s offending, the significant harm that might arise if he reoffends, and the unacceptable risk of his reoffending, the protection of the Australian community weighs very heavily against revocation.
[38] Respondent’s SOFIC, [32]-[35], Ex 1.
The Tribunal is persuaded by the Respondent’s submissions that if the Applicant were to engage in further violent offending, the nature of the harm that would be caused includes very serious physical and psychological harm to victims. Potential harm also arises to the broader community, including through the costs of dealing with the consequences of family violence by responding police, court action and victim support.[39]
[39] RGCZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3051 [93].
There is before the Tribunal a Sentencing Assessment Report, dated 20 May 2021 that noted that the Applicant was assessed to be at a “low risk” of reoffending.[40] The Respondent contended that the Tribunal ought to give that report limited weight and that there is a risk the Applicant will reoffend, which is unacceptable, and that any reoffending would expose the Australian community to significant physical, psychological and financial harm.[41]
[40] TB2, 65-69, Ex 5.
[41] Direction No. 99, [8.1.2(2)(a)].
The Direction contemplates that 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.[42] In some circumstances, it may be permissible to conclude that any type of continued offending increases the risk of further violent offending.[43] The Tribunal needs to consider the likelihood and consequences of further offending.[44] Given the seriousness of the Applicant’s offending, any risk that it may be repeated is unacceptable.
[42] Direction No. 99, [8.1.2(1)].
[43] Nepata v Minister for Home Affairs [2019] FCA 1197 [30].
[44] Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 [95].
The Tribunal accepts that the Applicant has done a number of courses, as outlined above. However, the evidence shows that they were online short courses, with no active instructions or engagement. That is not to say that they are of no benefit at all to the Applicant, however, the completion of those courses do not overcome the Tribunal’s concerns about the risk of re-offending, or indeed suggest that rehabilitation has been achieved. Similarly, the Tribunal has given some weight to the Sentencing Assessment Report, dated 20 May 2021, but the totality of the evidence before the Tribunal supports a conclusion that the Applicant remains at risk of re-offending. The Tribunal is persuaded by the Respondent’s submissions that the Applicant's conduct in immigration detention, as accepted above, is particularly concerning and is suggestive that the Applicant continues to experience difficulties in regulating his behaviour.
On balance, the Tribunal finds that there remains a risk of the Applicant engaging in further criminal conduct. Even if the Tribunal were to find that the risk is low, given the seriousness of the potential harm that could be caused, the Tribunal is satisfied that any level of risk is unacceptable.
For those reasons, the protection of the Australian community consideration weighs heavily against revocation of the cancellation decision.
Whether the conduct engaged in constituted family violence.
The Direction refers to the Australian Government having “serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.”[45]
[45] Direction No. 99 [8.2(1)].
The Direction contemplates that in considering the seriousness of the family violence engaged in by the non-citizen, the factors that must be considered are:
·the frequency of the offending conduct;
·any trend of increasing seriousness;
·the cumulative effect of repeated acts of family violence;
·rehabilitation achieved at time of the decision since the person’s last known act of family violence (including the acceptance of responsibility, understanding of the impact of the behaviour on the victim/witness of that abuse (particularly children) and the efforts to address factors which contributed to the conduct); and
·whether the person 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.[46]
[46] Direction No. 99 [8.2(3)].
The Applicant has been convicted of multiple family violence related offences. The Applicant was convicted of common assault and contravene prohibition/restriction in AVO (Domestic) and received an aggregate sentence of 13 months’ imprisonment. The victim of the Applicant’s offending is his partner, Ms X who is the mother of his children. It is not in dispute that Ms X comes within the non-exhaustive definition of member of the person’s family for the purposes of the family violence consideration, being “a person who has, or has had, an intimate personal relationship with the relevant person.”
The evidence before the Tribunal indicates that the Applicant’s offending is serious, not isolated, with three incidents occurring in the space of under a year. The fact that he has threatened Ms X not to involve the police is very serious. The fact that he threatened Ms X by saying “if you go to the police I will bash you,” is a significant issue for the Tribunal.
The Tribunal acknowledges that the Applicant has completed courses aimed at rehabilitation to address his issues, but there is limited evidence that there has been meaningful rehabilitation. The Applicant has been convicted of several offences and AVOs taken out for the protection of Ms X, which are accompanied by a warning from law enforcement and/or the courts as to the consequences of further family violence offending. For example, a NSW Police Facts Sheet notes the following:
“On the 11th November 2020, an apprehended domestic violence order naming the accused as the defendant and the victim as the person in need of protection was made enforceable by Fairfield Local Court, with the following conditions:
You must not do any of the following to <<protected people>>, or anyone <<she/he/they>> <<has/have>> a domestic relationship with: A) assault or threaten <<her/him/them>>, B) stalk, harass or intimidate <<her/him/them>>, and C) intentionally or recklessly destroy or damage any property that belongs to or is in the possession of <<protected people>> 9. You must not go within 100 Metres of: A) any place where <<protected people>> <<lives/live>>, or B) any place where <<she/he/they>><<works/work>>, or C) any place listed here.”[47]
[47] TB2, 55, Ex 5.
The Tribunal acknowledges that the Applicant has expressed remorse and apologies. However, that does not mean that the seriousness of the offending should be moderated.
The Respondent relied on Patterson and Minister for Home Affairs:[48]
“Legal authority also militates strongly against violence against women, especially in a domestic context. This Tribunal, in the matter of Mendoza and Minister for Immigration and Border Protection [2018] AATA 686 has said that the Australian community has “zero tolerance” for violent offending against women and for domestic violence offending against anyone, and that such conduct is to be regarded as “unacceptable at any time – in any place – in any circumstances." Similarly, this Tribunal has found that domestic violence is “fundamentally inconsistent with the standard of behaviour expected by the Australian community.”
[48] Patterson and Minister for Home Affairs (Migration) [2019] AATA 5175 [60].
Ms X attended the hearing and expressed her support for the Applicant and her intention to be with him. She talked about life’s challenges and stated that “I think I’m just sort of numb now.”[49] The Tribunal is satisfied that the cumulative impact of the repeated acts of violence has had a substantial adverse impact on Ms X.
[49] Transcript, 60, [5].
The Tribunal considers the Applicant’s conduct in relation to the family violence to be very serious and reflects the magnitude of the Applicant’s criminal conduct.
The Tribunal gives this consideration significant weight against revocation.
The strength, nature and duration of ties to Australia.
The Direction at paragraph 8.3(1) contemplates that 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. In considering a non-citizen’s ties to Australia, the Direction provides, among other things, that decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.[50]
[50] Direction No. 99, [8.3(3)].
Paragraph 8.3(4) of the Direction requires the Tribunal to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community and in doing so have regard to:
(a) the length of time the non-citizen has resided in the Australian community, noting that:
(i) considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending;
(ii) more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii) less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant has been in Australia since 2018. The Applicant’s main ties to Australia are Ms X and their two children, who are Australian citizens. He has connections to his Church community. Ms X provided statements which speak to the closeness of their relationship, and particularly the bond between the Applicant and his children. She gave evidence confirming those matters.
There are also several letters of support including from the Applicant’s sister, a cousin, Bishop of the Applicant’s Church, and Head Coach of a rugby league club.
The Minister has accepted and the Tribunal finds that these family members and friends, particularly Ms X and the children, would suffer a degree of emotional, psychological, and financial hardship should the Applicant be removed. However, the Tribunal gives less weight to these ties as the Applicant has spent a relatively short period of time in the Australian community. He did not spend his formative years in Australia and he began offending shortly after his arrival in Australia.
On balance, the Tribunal gives this consideration limited weight in favour of revocation.
The best interests of minor children in Australia.
The Direction requires decision-makers to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.[51]
[51] Direction No. 99 [8.4(1)].
In considering the best interests of the child, the Direction states at 8.4(4) that the following factors must be considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant and Ms X have two children under the age of 4 years. Ms X has a child aged about 5 months old to another man. She gave evidence in the course of the hearing that there is a surrogacy arrangement between her and her brother, and that formal adoption legal arrangements have not taken place as the child is under two years old. The Tribunal accepts the evidence that the child is cared for by another family, although Ms X continues to have some contact. The Tribunal found Ms X’s evidence in relation to the biological father of the child to be problematic, in that her oral evidence is that she did not have a relationship with the biological father, contrary to written material suggesting that he was her partner during a period of separation from the Applicant. The Tribunal does not consider this aspect to be a significant issue and as such, is prepared to accept as plausible Ms X’s oral evidence. Given that Ms X continues to have some relationship with that child, the Tribunal has taken his interest into consideration. However, the Tribunal is mindful of the Applicant’s evidence that he asks about the child, but there is no evidence that the Applicant has any parental obligations towards, or a relationship with that child.
The Applicant contended that it is in the best interest of the children that the cancellation of his visa be revoked and that this consideration weighs strongly in favour of revocation. The Applicant maintains that he has a strong, loving relationship with his children. He has provided photographic evidence of the family and the children came to the hearing. The Applicant and Ms X state that their separation is having a significant psychological and financial impact, and they would suffer if the Applicant were to be returned to Tonga. Ms X gave evidence of the difficulties she has faced as a single mother with limited social, financial, and practical support.
The Minister has accepted that it is in the children’s best interests that the mandatory cancellation of the Applicant’s visa is revoked. However, the Minister contended that the weight to be given to this primary consideration should be tempered by the following:[52]
·The Applicant’s relationship with his children has necessarily been limited by the significant period of time he has spent imprisoned or detained (paragraph 8.4(4)(a) of the Direction). In particular, he has been in custody or detained since 19 April 2021.
·The extent to which the Applicant is likely to play a positive parental role in the future is unclear, noting that even if the visa cancellation is revoked, he does not have any right to remain in Australia, nor is it apparent that he would be granted another visa (paragraph 8.4(4)(b) of the Direction).
·Should the Applicant offend in a similar manner while in the presence of his children, there is likely to be significant psychological impacts on the children (paragraph 8.4(4)(c) of the Direction).
[52] Respondent’s SOFIC, [50], Ex 1.
For the reasons explained above, on balance, the Tribunal has been satisfied that the Applicant has ties in Australia, including his children and Ms X. The question here though is whether non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
It is a generally-accepted proposition that it is in the children’s best interest to be cared for by both of their parents. However, it is also accepted that families in Australia come in many forms, including a single parent home. Despite all of his good intentions, which the Tribunal accepts, it is reasonable to say that the children have had to endure the very negative aspects of the Applicant’s conduct. Although there is no evidence of any direct abuse or mistreatment towards the children, incidents of violence have taken place in their presence and one can only speculate about the impact. As outlined above, during one incident of argument, Ms X fell when she was holding her baby.
The Tribunal observes Ms X’s evidence that she would return with the Applicant to Tonga, in case of his removal, although that would not be her preferred option, which is to remain in Australia as a family. Ms X considered it in the best interest of her children to remain in Australia. She explained the challenges they would face if the Applicant were to leave Australia. The Tribunal acknowledges that Ms X is an Australian citizen so are the two children she has with the Applicant, and as such, where the cancellation of the Applicant's visa will not cause the children to be separated from their father as they will return to Tonga with him, the Tribunal finds that the weight in favour of revocation should be moderated.
The Tribunal does not wish to sound harsh or take the comments out of their contexts. However, even on their own evidence, Ms X and the Applicant recognised that aspects of the Applicant’s behaviour does not accord with being a role model for children.
The Applicant remains to be the children’s father with parental obligations and responsibilities. The Tribunal acknowledges the Applicant’s and Ms X’s desires and hopes, but the Tribunal considers it appropriate in the circumstances to moderate this consideration and give it limited weight against revocation. The family violence presents serious challenges to the proposition that revocation is in the children’s best interest. Moreover, the evidence before the Tribunal indicates that Ms X, albeit with some difficulties as a single parent, has cared for the children all their lives, including during the Applicant’s incarceration and detention and she has fulfilled the parental role.

On balance, the Tribunal gives this consideration limited weight in favour of revocation.
Expectations of the Australian community
The Direction at 8.5(1) indicates that the Australian community expects non-citizens to obey Australian laws. It states that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia. The Direction refers to non-revocation of the mandatory cancellation of a visa, being potentially appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.[53] 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 a kind that includes acts of family violence. The Applicant accepted that this consideration weighs against revocation. The Respondent contended that that this primary consideration weighs heavily against revocation.[54]
[53] Direction 99 [8.5(2)].
[54] Respondent’s SOFIC, [53], Ex 2.
The Tribunal accepts that the Applicant has committed offences involving family violence against women, which raise serious character concerns.[55] The Tribunal is satisfied that the Applicant has engaged in serious conduct in breach of community expectations, and that the Australian community expects the Government to not allow such a non-citizen to remain in Australia.
[55] Direction 99 [8.5(2)(a)], [8.5(2)(c)].
The Tribunal gives this consideration significant weight against revocation.
The other considerations
Legal consequences of the decision.
At paragraph 9.1, the Direction indicates that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there would be a risk of harm.
Australia is a signatory to several international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).
“Non-refoulement obligations” is not confined to the protection obligations to which s 36(2) of the Act refers.[56] It is defined in the Act to include non-refoulement obligations that may arise because Australia is a party to one of the instruments mentioned above, or any obligations accorded by customary international law that are of a similar kind.
[56] See Ibrahim v Minister for Home Affairs [2019] FCAFC 89 [103].
The Applicant has previously applied for a Protection visa. In seeking revocation, the Applicant has claimed that he faces “torture and harm at the hands of authorities” upon return to Tonga.[57] He is prevented by s 48A of the Act from making a further application for a Protection visa while he is in the migration zone (unless the Minister determines that s 48A does not apply to him (ss 48A and 48B of the Act)).
[57] G14, 78, Ex 6.
In his representations in support of revocation, the Applicant referred to Tonga being “unpredictable” and “prior and ongoing threats” his siblings experience in Tonga due to the claimed land rights dispute.[58] As raised in the hearing, the delegate was not satisfied that the Applicant was owed protection obligations. On review, the Tribunal (differently constituted) affirmed the delegate’s decision and the Applicant did not seek judicial review of that decision. In the course of the hearing, the Applicant stated that those land issues have been resolved.
[58] G15, 83-86, Ex 6.
On the evidence, the Tribunal is satisfied that the Applicant’s protection claims have been fully-explored both at the primary stage and the review stage by the Tribunal; the Tribunal finds that the Applicant is not owed protection obligations and that there are no non-refoulement obligations.
There is a significant practical issue in this case; as the Tribunal has made a decision on the Applicant’s substantive visa application, namely the Protection visa, the visa the subject of the current proceedings (BV) ceased on 5 January 2022.[59] As such, even if the Tribunal were to set the decision under review aside, given that the Applicant presently holds no visa entitling him to remain in Australia, he would still be liable for removal pursuant to s 198 of the Act. The Applicant’s future visa pathways whilst he remains onshore are limited. In addition to being prevented from making another application for a protection visa, if the decision under review is affirmed, the Applicant would also be prohibited from applying for any other visa while in the migration zone (other than a Bridging R (Class WR) visa).[60]
[59] Regulation 050.511 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations) provides that a bridging visa granted to a non-citizen who has applied for a substantive visa ceases 35 days after the Tribunal’s decision on the application for merits review.
[60] Migration Act 1958 (Cth) s 501E(1); Migration Regulations 1994 (Cth) reg 2.12AA.
As to the consequences pursuant to ss 189 and 198 of the Act, although detention and removal can have a degree of hardship, particularly in the case of a detainee with mental health issues,[61] as they are consequences of the legislation, the Tribunal moderates their impact.
[61] The Applicant has claimed to have anxiety and depression - G36, 172, Ex 6.
Overall, the Tribunal gives this consideration some weight against revocation.
Extent of impediments if removed.
Paragraph 9.2 of the Direction requires the Tribunal to consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country) taking into account:
(a) the non-citizen's age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
Although the Tribunal acknowledges that if removed from Australia to Tonga, the Applicant would face some practical difficulties, such as securing housing and employment, the Applicant would be able to establish himself and maintain basic living standards. The obstacles are not insurmountable.
The Applicant is young. There are no language or cultural barriers as the Applicant has spent the majority of his life in Tonga. Although there is evidence of the Applicant suffering from anxiety and depression, there is no evidence to indicate that he would not have access to treatment that is generally available to other citizens of Tonga. There are no appreciable cultural, or social barriers preventing the Applicant from re-establishing himself in Tonga. Further, the Applicant has several family members in Tonga, including those who have given letters of support, who would likely be able to assist him in re-establishing himself. He will have access to the social and economic opportunities and support available to citizens of Tonga outside of his familial supports.
On balance, the Tribunal gives this consideration weight against revocation.
Impact on victims.
The Direction requires decision-makers to consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.[62]
[62] Direction 99 [9.3].
Ms X has been a victim of the Applicant’s domestic violence offences. Although she gave evidence about the impact of being a victim of domestic violence, this consideration relates to the question of the impact of the section 501 or 501CA.
The Tribunal is persuaded by the Minister’s submissions that caution should be exercised in placing weight on the evidence of victims of domestic violence, given the complicated nature of the relationship between the victim and the person who committed the violence, and their ongoing domestic relationship.[63]
[63] Hofman and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2022] AATA 3740 citing Ali and Minister for Home Affairs (Migration) [2018] AATA 2512 at [135]-[140]; HMFZ and Minister for Home Affairs (Migration) [2018] AATA 3861 at [106]-[110].
It is fair to say that non-revocation would cause Ms X a degree of hardship, including financial, personal, and psychological hardship. Non-revocation could potentially mean that she has to continue to rely on her own personal resourcefulness to meet her financial and parental obligations. However, this needs to be moderated by the fact that she was the victim of the family violence perpetrated by the Applicant.
On balance, the Tribunal gives this consideration some weight in favour of revocation.
Impact on Australian business interests.
At paragraph 9.4 of the Direction, it is noted that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration is not relevant.
The Tribunal gives this consideration neutral weight.
Other matters for consideration
Paragraph 9 of the Direction expressly states the other considerations 'are not limited' to the matters listed therein.
There are no other matters for consideration.
CONCLUSION
The decision as to whether to revoke a cancellation is not a simple, or formulaic exercise. It requires the decision maker to weigh up different considerations. On balance, although there are aspects in favour of revocation, the aspects against revocation outweigh those in favour. The seriousness of the Applicant’s offending conduct, the fact that the offending conduct involved family violence, the risk of reoffending, and the expectations of the Australian community weigh heavily against revocation.
The Tribunal is satisfied that the correct and preferable decision is not to revoke the mandatory cancellation.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding one-hundred and sixteen (116) paragraphs are a true copy of the reasons for the decision herein of Deputy President Antoinette Younes.

................................[SGD]...................................
Associate

Dated: 26 July 2023

Date of hearing(s):

17 July 2023

Applicant:

In person

Representative for the Respondent:

Mr M Sheedy, Sparke Helmore Lawyers

Date of hearing(s):	17 July 2023
Applicant:	In person
Representative for the Respondent:	Mr M Sheedy, Sparke Helmore Lawyers