Wilton and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 926

Wilton and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 926 (2 May 2024)
Division:                  GENERAL DIVISION
File Number(s):2024/0909
Re:Leroy WILTON
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President Antoinette Younes

Date: 2 May 2024
Place: Sydney
The decision under review is set aside, and in substitution, the mandatory cancellation of the Applicant’s visa is revoked.
..................................[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 – conduct engaged in family violence – strength nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – impediments to removal – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
CASES
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
GBV18 v Minister for Home Affairs [2020] FCAFC 17
Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580
HZCP v MIBP [2018] FCA 1803
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6
Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562
Nepata v Minister for Home Affairs [2019] FCA 1197
Pearson v Minister for Home Affairs [2022] FCAFC 203
Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 802
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
2 May 2024
BACKGROUND

The Applicant is a national of New Zealand who was born in February 1989.[1] He first arrived in Australia in January 1997.[2] He departed Australia on two occasions, on 15 December 1999 to 7 January 2000, and from 14 September 2000 to 9 November 2000.[3] The Applicant held a Class TY Subclass 444 Special Category (Temporary) visa (the Applicant’s visa).
[1] Ex 8, 109.
[2] Ex 8, 103.
[3] Ex 8, 103.
The Applicant has an extensive criminal history. During the last 15 years or so, the Applicant has been convicted of multiple offences including common assault, assault occasioning actual body harm (DV), contravening prohibition/restriction in apprehended domestic violence order (ADVO), destroy/damage property, stalk/intimidation offences, as well as driving-related offences.[4] On 14 March 2023, the Applicant was convicted in the Orange Local Court of Stalk/intimidate intend fear physical etc harm (domestic) (two counts), Destroy or damage property <=$2000 (DV), fail to appear in accordance with bail acknowledgment, and assault occasioning actual body harm (DV) (the 2023 convictions). Among other outcomes, the Applicant received an aggregate imprisonment sentence of 12 months, with a non-parole period of six months.[5]
[4] Ex 8, 80-82, 88-97.
[5] Ex 8, 80-82.
On 31 March 2023, the Applicant's visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act). The delegate found 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, and was serving a sentence of imprisonment on a full-time basis in a custodial institution.[6]
[6] Ex 8, 12-32.
On 15 April 2023, the Applicant made representations seeking revocation of the cancellation of his visa.[7]
[7] Ex 8, 13.
On 8 February 2024, the delegate was not satisfied that there was another reason to revoke the mandatory cancellation decision.[8]
[8] Ex 8, 32.
On 14 February 2024, the Applicant lodged an application for review with the Administrative Appeals Tribunal (the Tribunal).[9]
[9] Ex 8, 9-11.
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 s 501(3A) of the Act to cancel a visa that has been granted to a person.
Section 501CA(4) of the Act 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.[10]
[10] 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, 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:
a)Legal consequences of the decision;
b)Extent of impediments if removed;
c)Impact on victims; and
d)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 Applicant’s Statements of Facts, Issues and Contentions (SFIC), dated 22 March 2024 (Exhibit 1);
·The Respondent’s SFIC, dated 3 April 2024 (Exhibit 2);
·Chronology filed on 3 April 2024 (Exhibit 3);
·Applicant’s Statement dated 12 April 2024 (Exhibit 4);
·Medical records and reports relating to the Applicant’s mother, filed on 12 April 2024 (Exhibit 5);
·Statement of Ms F, filed on 12 April 2024 (Exhibit 6);
·Documents produced under summons by NSW Police, filed on 16 April 2024 (Exhibit 7); and
·G-Documents filed on 28 February 2024 (Exhibit 8).
In support of the Applicant, ten witnesses gave evidence in the course of the hearing, including the Applicant’s parents, siblings, aunts, nephew, and former partners.
FINDINGS AND REASONS
The character test is defined in s 501(6) of the Act and is generally concerned with the protection of the Australian community from the risk of harm.
Does the Applicant meet the character test?
As outlined above, 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 the Applicant has a 'substantial criminal record' on the basis of having been sentenced to a term of imprisonment of 12 months or more and 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.
It is not in dispute that the Applicant does not meet the character test. On 14 March 2023, the Applicant was convicted in the Orange Local Court of Stalk/intimidate intend fear physical etc harm (domestic) (two counts), assault occasioning actual body harm (DV), Destroy or damage property <=$2000 (DV) and fail to appear in accordance with bail acknowledgment (the 2023 convictions). Among other outcomes, the Applicant received an aggregate imprisonment sentence of 12 months, with a non-parole period of six months.[11] Among other outcomes, the Applicant received an aggregate imprisonment sentence of 12 months, with a non-parole period of six months.[12]
[11] Ex 8, 80-82.
[12] Ex 8, 80-82.
As an aggregate sentence of 12 months is a term of imprisonment within the meaning of s 501(7)(c) of the Act, the Applicant has a substantial criminal record and the Tribunal finds that he does not pass the character test.
ISSUE
The issue before the Tribunal is whether there is another reason why the mandatory cancellation of the Applicant’s 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. The Direction identifies certain principles which provide a framework within which decision-makers should approach their task.[13] 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.
[13] 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 99.
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 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.[14]
[14] 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.[15] The Direction specifies the relative, but not the actual weight to be given to those considerations; 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.[16] 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 determination of the applicant’s case.[17]
THE PRIMARY CONSIDERATIONS
[15] GBV18 v Minister for Home Affairs [2020] FCAFC 17.
[16] Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 [127].
[17] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [83].
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]
[18] Direction 99 [8.1(1)].
[19] Direction 99 [8.1(2)].
The seriousness of the Applicant’s conduct
The Applicant has a long criminal history, including a “juvenile” criminal record. Relevantly, in Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs,[20] the High Court accepted that s 14(1)(a) of the Children (Criminal Proceedings) Act 1987 (NSW) (CPPA) could engage s 85ZR(2) of the Crimes Act 1914 preventing a decision-maker exercising the power in s 501CA(4) of the Act from taking into account a person’s juvenile offending in NSW. Although the Applicant’s conviction in March 2007 indicates that he was 18 years of age, the Tribunal accepts the Minister’s submissions that out of an abundance of caution, and noting the paucity of relevant evidence,[21] the Tribunal may elect to make its decision specifically without taking into account the Applicant’s ‘juvenile’ criminal records. As such, the Tribunal has not used those records in making its decision.
[20] Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6.
[21] Ex 2, [29].
The following is a summary of the Applicant’s criminal history:[22]
[22] Ex 8, 88-97.
·31 March 2009 - the Applicant was convicted of Use offensive language in/near public place/school.
·18 August 2009 - the Applicant was convicted of Drive with middle range PCA, and Never licensed person drive vehicle on road – 2nd offence.
·20 October 2009 - the Applicant was convicted of Destroy or damage property.
·25 May 2010 - the Applicant was convicted of Destroy or damage property, and Drive while disqualified from holding a licence.
·22 September 2010 - the Applicant was convicted of Destroy or damage property, and Drive while disqualified from holding a licence.
·11 December 2014 - the Applicant was convicted of Never licensed person drive vehicle on road – first offence.
·16 October 2015 - the Applicant was convicted of Common assault (DV) – T2.
·29 February 2016 - the Applicant was convicted of Never licensed person drive vehicle on road – prior offence.
·23 January 2017 - the Applicant was convicted of Destroy or damage property (DV).
·18 February 2019 - the Applicant was convicted of Use an unregistered registrable Class A motor vehicle on road, and Drive motor vehicle during disqualification period – 1st off.
·12 August 2019 - the Applicant was convicted of Drive motor vehicle during disqualification period – 2nd off.
·20 April 2020 - the Applicant was convicted of two counts of Destroy or damage property (DV), and Contravene prohibition/restriction in AVO (Domestic)
·11 August 2020 - the Applicant was convicted of Drive motor vehicle during disqualification period – 2nd off, Fail to appear in accordance with bail acknowledgement (BENCH – NON CONVICTION), Destroy or damage property <=$2000 (DV) – T2, and Stalk/intimidate intend fear physical etc harm (domestic) –T2.
·7 September 2020 - the Applicant was convicted of Stalk/intimidate intend fear physical etc harm (domestic) – T2, and Destroy or damage property <=$2000 (DV) – T2.
·25 January 2021 - the Applicant was convicted of Drive motor vehicle during disqualification period – 2nd off, Stalk/intimidate intend fear physical etc harm (domestic) – T2, Fail to appear in accordance with bail acknowledgement (BENCH – NON CONVICTION), and Destroy or damage property <=$2000 (DV) – T2.
·14 March 2023 - the Applicant was convicted of Destroy or damage property <=$2000 (DV) – T2, Fail to appear in accordance with bail acknowledgement (BENCH – NON CONVICTION), Stalk/intimidate intend fear physical etc harm (domestic) – T2 (two counts), and Assault occasioning actual bodily harm (DV) – T2.

The Applicant's family violence offences were committed against former partners, being Ms F and Ms D.[23]
[23] Ex 8, 74-79.
In relation to the conviction on 14 March 2023 of stalk/intimidate intend fear physical etc harm (domestic) against a partner, the Sentencing Court remarked:
The index offending is serious, it involves assault occasioning upon his partner and intimidation. Both of those offences are relatively serious, they each carry a fulltime prison sentence for the worst offending for the worst offender of five years. The offences occurred in the home of the victim or another person. The offender has a history of domestic violence and other offending. The pleas of guilt were entered on the date appointed for hearing. There is limited utility in such timing.[24]
[24] Ex 8, 76-77.
The New South Wales Police Facts Sheet,[25] outlines the circumstances of the offending. Briefly, on 2 October 2022, the Applicant accused Ms D of cheating on him as he had not seen her the previous night. Ms D explained that it was due to her working. The two argued in the master bedroom of Ms D’s residence. As the argument escalated, the Applicant, using both of his hands, grabbed Ms D by the collar, lifted her off the ground and proceeded to throw her across the bed causing her to fall onto the floor. The Applicant then stood over Ms D, grabbed, and punched her multiple times with a closed fist to her face, causing immediate swelling and bruising on both eyes as well as a small laceration above her right eye. He grabbed her again and then grabbed a bat located underneath the bed which caused Ms D to attempt to wrestle the bat away from him. That did not work. The Applicant lifted the bat above his head and swung it in downwards motion towards Ms D. Eventually Ms D escaped to a family friend’s residence where her newborn was being cared for. During an electronically recorded interview of suspect persons, the Applicant admitted that he grabbed Ms D, threw her across the bed and grabbed the bat off Ms D during the incident.
[25] Ex 7, NSW Police Facts Sheet, 1-4.
The Applicant gave evidence that he was using ice. He however accepted the seriousness of his criminal conduct, although he disputed some of the facts of the above incident. Relevantly, in HZCP v MIBP,[26] the Court expressed the following principles:
(1)Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, as the case may be) or to the essential facts on which it was based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.
(2)Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.[27]
[26] HZCP v MIBP [2018] FCA 1803.
[27] HZCP v MIBP [2018] FCA 1803, [78].
It is evident that in certain circumstances, it is possible to impugn the essential facts underlying the conviction, however there is a heavy onus, which the Tribunal is satisfied is not met in this case.[28] What is clear is that the Court considered the Applicant’s conduct to be serious.
[28] See HZCP v MIBP [2018] FCA 1803.
In the SFIC, the Applicant contended that in determining the objective seriousness of the Applicant’s offences, the Tribunal should consider both the circumstances surrounding the commission of these offences and the treatment received from the Courts.[29] It was contended that although some of the offences committed by the Applicant are serious, it is imperative to view and evaluate them within the context of his mental health condition and level of criminal responsibility at the time. It is noteworthy that the majority of the applicant’s offences are linked to his mental health issues and substance abuse. [30] In support of those contentions, the Applicant relied on the decision of Pearson v Minister for Home Affairs[31] (Pearson) not to challenge the fact that the Applicant does not meet the character test but to argue that the judgment is relevant to this consideration.[32] The Applicant contended that the impact of Pearson, and the Migration Amendment (Aggregate Sentences) Act 2023, means that it is essential, for the purpose of this primary consideration to delve deeper into the applicant’s character by posing specific inquiries.[33] It was contended that the Tribunal should adopt the degree of culpability determined by the court, along with the objective seriousness of the Applicant's offences, as reflected on each individual, disaggregated, sentence of no more than six months that the Applicant received.[34]
[29] Ex 1, [21].
[30] Ex 1, [21].
[31] Pearson v Minister for Home Affairs [2022] FCAFC 203.
[32] Ex 1, [2].
[33] Ex 1, [22].
[34] Ex 1, [28].
The Respondent contended that the above approach would be contrary to the intention of the enactment of the Migration Amendment (Aggregate Sentences) Act 2023, which had the effect of ensuring that the provisions of the Act and the Migration Regulations 1994 apply no differently in relation to a single sentence imposed by a Court in respect of two or more offences, to the way they apply in relation to a sentence imposed by a Court in respect of a single offence (s 5AB of the Act).[35] The Tribunal is persuaded by the Respondent’s submissions, but in any event, the Court found that the Applicant's conduct is serious.
[35] Ex 2, [38].
The Tribunal is satisfied that the Applicant’s offending demonstrates a disregard for the law, including road and traffic laws. The Applicant has continued to reoffend, and he has committed acts of family violence against different partners from 2015 to 2023. The Applicant’s criminal history is extensive and frequent. Moreover, the Applicant’s conduct falls within what the Direction views to be serious such as violent crimes, crimes of a violent nature against women, and acts of family violence.[36]
[36] Direction 99 [8.1.1(1)(a)].
In the SFIC, and in oral closing submissions, the Applicant contended that his criminal record should be considered in light of his mental health issues, trauma, alcohol and substance abuse, and grief due to the loss of the still born child.[37] The Tribunal is of the view that any impact that those issues have had on the Applicant’s offending is potentially a mitigating factor for the Court’s considerations. The Tribunal considers that those issues are more relevant to the consideration of impediments to removal, which will be addressed by the Tribunal under the relevant consideration.
[37] Ex 1, [27].
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:[38]
a)    the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)    the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the noncitizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
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.
[38] Direction 99 [8.1.2(2)].
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.[39] In some circumstances, it may be permissible to conclude that any type of continued offending increases the risk of further violent offending.[40]
39 Direction 99 [8.1.2(1)].
[40] Nepata v Minister for Home Affairs [2019] FCA 1197 [30].
The Tribunal needs to consider the likelihood and consequences of further offending.[41]
[41] Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 [95].
The Applicant and other witnesses gave evidence that whilst growing up, the Applicant had experienced violence including domestic, illicit drug and alcohol abuse. He started consuming alcohol when he was about 14 years old. The entire family was affected by drug addiction, such as ice. Various members of the family gave evidence about their struggles with addiction and their journeys to recovery. One of the central issues raised by the Applicant is that his daughter, A, was stillborn in 2012, which caused him considerable grief and in his view, led him to use ice to ‘num’ that deep sense of loss. Subsequently, his use of ice escalated and he became addicted. He partly contributes his offending to the use of ice, but he also acknowledges his wrongdoing.
The Tribunal formed the view that the Applicant’s expression of remorse is genuine and he demonstrated a level of insight of the consequences of his offending. The Applicant has been drug-free since October 2022, and he claims he has no desire to resume drug-use, and if released from detention, he intends to live away from Orange where he used to obtain the illicit drugs.
The Tribunal refers to the Respondent’s contentions that in providing the details of his domestic violence offending, despite his statements of not excusing his behaviour, the Applicant appeared to justify his behaviour by not taking full responsibility for some of his offending conduct, such as by omitting details of his conduct towards Ms D. The Tribunal accepts that there is a degree of justification, which is relevant to the assessment of risk.
There is before the Tribunal a report from Mr Sam Borenstein, Clinical Psychologist, dated 16 September 2023.[42] Among other matters, Mr Borenstein outlined the Applicant’s challenging background and he provided the following opinions:
[42] Ex 8, 129-137.
…There is no indication of serious psychiatric disorder, e.g. psychosis. Thoughts for content and form are normal. There is no evidence of perceptual disturbance, e.g. delusions, hallucinations, ideas of reference or feelings of passivity.
…I administered the Personality Assessment Screener (PAS), which measures potential problem areas in mental health.
Mr Wilton’s total score of 33 indicates marked potential for emotional and/or behavioural problems…The PAS profile confirms Mr Wilton has struggled with anger management issues, which Mr Wilton said he has addressed since coming into detention having completed a ten week course on domestic violence and anger management.
I administered the Depression Anxiety Stress Scale (DASS 21) , which measures for symptoms in the week prior to interview/assessment.
Results for symptoms of depression, anxiety and stress, all tested in the normal range. Mr Wilton described a significant improvement in his mental state since abstaining from drugs, and said he appreciates the benefits of sobriety, reflected in his current DASS 21 results.
…Mr Wilton has now been abstinent from drugs for at least ten months, and said his intention is to remain sober. Mr Wilton has the support of his family, and all have successfully turned their lives around and successfully abstained from drugs.
Mr Wilton was exposed to alcohol and other drug abuse, and domestic and family violence, from a very young aged, which impacted on his psychological and emotional development, and contributed to his history of poor academic outcomes, increased aggression, lack of emotional control, low self-esteem resulting from the cumulative effects of witnessing domestic violence and alcohol/drug abuse, in his formative years, representing a major contributor to his inability to regulate emotions.
… Mr Wilton is prepared to undertake intensive and ongoing alcohol and drug rehabilitation, either as an inpatient or via AA/NA or SMART Recovery, and in ongoing and intensive psychological treatment to address the history of abuse in childhood, which has left him with symptoms of complex Post Traumatic Stress Disorder (PTSD).
Psychological treatment will provide Mr Wilton an opportunity to undertake necessary grief work as it pertains to unresolved and traumatic grief he continues to struggle with following the stillborn death of his death… Ongoing intensive psychological treatment addressing core and unresolved trauma and grief will, in my opinion, maximise success in Mr Wilton’s resolve to remain abstinent from drugs, and the risk of reoffending will be significantly reduced.
Mr Wilton expressed confidence in his ability to rehabilitate having witnessed his parents and sisters succeed, and he now has positive models/templates, which together with abstinence from drugs for the last ten to eleven months, and ongoing treatment, augers well for him not to reoffend or relapse, and succeed in his resolve to become an integral part of his children’s lives.
The Applicant has provided evidence of his rehabilitation efforts, including:
·Certificate of Completion for the Circuit Breaker Program, dated July 2023.[43]
·Letter from Lives Lived Well, dated 19 October 2023, confirming that the Applicant had completed the:
o Nana Muru Day rehab program on 19 May 2021.
o Nana Muru Day program on 13 July 2021.
o Nana Muru Aftercare program on 9 December 2021.
o Nana Muru Aftercare program on 5 January 2023.[44]
[43] Ex 8, 481.
[44] Ex 8, 480.
Relevantly and in relation to the conviction on 14 March 2023 of stalk/intimidate intend fear physical etc harm (domestic) against a former partner, the Sentencing Court remarked:
Mr Wilton is a relatively young man born in 1989. He has a lot of living ahead of him. So he has some prospects of rehabilitation. They would have to be regarded as guarded at this stage because of his reoffending. A strong subjective case is put forward by Ms Sams but this offending is in the context of unresolved grief and drug use, the drug is no excuse and it is not a mitigating consideration. But he has matters in his life which have not been fully addressed.[45]
[45] Ex 8, 77.
The Tribunal is satisfied that a fair analysis of the cumulative evidence indicates that the Applicant has undertaken steps towards rehabilitation but this is insufficient to conclude that there is a low or no risk of reoffending. As acknowledged by multiple members of the Applicant’s family, recovery from drug misuse and other issues is a journey that requires continued commitment and effort. The Applicant has had issues including mental health, unresolved grief, and drug misuse for many years and his recent sobriety has not been tested outside the ‘controlled’ environments of prison and immigration detention. In reality, the Applicant's ability to remain drug-free in the community is questionable. Even if drug free, the Applicant remains to have mental health challenges that have not been fully addressed. In those circumstances, the Tribunal is satisfied that the risk of reoffending remains unacceptable in light of the seriousness of the Applicant's offending, highlighted by the sentence of imprisonment imposed for the family violence offences. If the Applicant were to reoffend, the nature of the harm that may result includes physical harm.
The Applicant has contended that the existence of the ADVO [46] for the protection of Ms D serves as a strong deterrent and significantly reduces his risk of reoffending.[47] As correctly observed by the Respondent, the Applicant has perpetrated family violence against his other partners, not only Ms D. Moreover the Applicant has historically been non-compliant with bail acknowledgements. He has also failed to comply with road rules, for example, driving whilst disqualified. So lawful interventions and measures have not deterred the Applicant, and the Tribunal is guarded to conclude that the ADVO means that the Applicant would not reoffend.
[46] Ordered on 14 March 2023 for 2 years – see Ex 8, 210-215.
[47] Ex 1, [31].
The Tribunal acknowledges the Applicant’s efforts at rehabilitation and the Tribunal accepts the Applicant’s evidence that he is currently drug free. However, looking at the evidence cumulatively, the Tribunal is satisfied that there is a risk of the Applicant engaging in further criminal conduct. 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.”[48]
[48] Direction 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.[49]
[49] Direction 99 [8.2(3)].
As outlined above, the Applicant has been convicted of offences relating to family violence. In 2015, 2017, 2020, 2021, and 2023, the Applicant has been convicted of family violence offences against different partners.
The Tribunal considers the Applicant’s family violence conduct to be serious. In terms of rehabilitation, looking at the evidence cumulatively and for reasons explained earlier, the Tribunal is not satisfied that this means that the Applicant has achieved a level of rehabilitation to minimise the risk of reoffending. On balance, the Tribunal finds that any rehabilitation achieved so far does not mean that it is unlikely that the Applicant would refrain from engaging in further family violence conduct. Given the seriousness of the potential harm that could be caused, the Tribunal is satisfied that any level of risk is unacceptable.
The Tribunal appreciates that the Applicant has acknowledged that his engagement in family violence was serious and he has expressed remorse but those do not mean that the adverse weight should be moderated.
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 99 [8.3(2)].

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 is a national of New Zealand who was born in February 1989.[51] He first arrived in Australia in January 1997.[52] He departed Australia on two occasions, on 15 December 1999 to 7 January 2000, and from 14 September 2000 to 9 November 2000.[53] He has spent his formative years in Australia.
[51] Ex 8, 109.
[52] Ex 8, 103.
[53] Ex 8, 103.
The Applicant has contended that he has significant ties to Australia, including all of his immediate family members who reside in Australia. His immediate family in Australia includes both of his parents, his two sisters and a brother. The Applicant has four minor children whose interests would be discussed later. The children are Australian citizens. He has other relatives in Australia such as cousins (79), and aunties/uncle (9). In New Zealand, he has other distant relatives.[54]
[54] Ex 8, 120.
The Applicant’s father, mother, two sisters, two former partners (including Ms F – one of the victims), aunties, brother-in-law, and nephew all gave evidence in support of the Applicant. They also provided statements in support.
The Applicant’s mother was very tearful during her evidence and spoke of the significant emotional hardship she would face in case of the Applicant’s removal from Australia. She indicated that she would go with the Applicant to New Zealand, if she had to. The Applicant’s mother, father, and sisters spoke frankly of their own struggles with illicit drugs and of their continuing recovery journies. Many of the witnesses expressed their concerns for the Applicant in case he is deported, and of the impact that would have on them individually, including emotional and psychological.
Relevantly, there are medical records and reports relating to the Applicant’s mother, indicating that she suffers from multiple physical ailments, including a history of lower back pain.[55] The Tribunal is satisfied that there is no suggestion that if she were to accompany the Applicant to New Zealand, she would not receive adequate clinical care but her departure would cause her to suffer significant emotional hardship and she would be deprived of the support she has from her family in Australia.
[55] Ex 8, 269-426; Ex 5, report of Dr Laban, dated 28 February 2024.
The Respondent accepted that the Applicant has strong ties in Australia.
The Tribunal is satisfied that the Applicant ties to Australia are very strong and as such, the Tribunal gives this consideration significant 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.[56]
[56] Direction 99 [8.4(1)].
In considering the best interests of the child, the Direction states at paragraph 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 has four minor children aged 17 years, 10 years, 7 years, and 1 year. Each of the children is from a different partner of the Applicant. The Applicant is not in a relationship with any of the mothers.
Prior to being incarcerated, the Applicant had contact with three of the children but he has no contact with the 10 year old daughter. The Applicant plans to re-establish that connection, whether he would succeed or not is speculative at this stage.
The Applicant indicated that his children would be devastated in case of non-revocation. He explained that his 17 year old son, R, has been exhibiting behaviours of concern including dropping out of school and expressing suicidal thoughts to his mother. His seven year old daughter, A, with whom he shares the strongest connection would be extremely distraught and regularly breaks down. Relevantly, both Ms W (the mother of the 17 year old son) and Ms F (the mother of the 7 year old daughter) have provided letters in support of the revocation of the cancellation decision.[57] Ms W noted that the Applicant and the son have bonded in the last year or so and that they need a chance to continue building their relationship.
[57] Ex 8, 180, 184; Ex 6.
In her letter of support, Ms F referred to the emotional and mental impact on the 7 year old daughter, since the Applicant’s incarceration and detention. Ms F indicated that she has re-partnered since her separation from the Applicant, and as such the 7 year old has a 'father figure' at home, but nothing could ever compare to the relationship with the Applicant. She expressed concerns about the impact on the daughter in case the Applicant is deported. Ms F also gave evidence during the hearing in support of the Applicant.
In relation to the one year old son, there is evidence from the Applicant's mother that the child might have been assaulted whilst in Ms D’s care who has been ordered into rehabilitation.[58] The Applicant is concerned that if the son were to be removed from Ms D’s care, he would not have a parent to care for him.
[58] Ex 8, 565-568.
The Applicant indicated that he has eight nieces/nephews, to whom he is very close and he has played a role in each of their lives.
Although the Respondent accepted that it would be in the best interests of the Applicant's four minor children and eight nieces/nephews to revoke the cancellation decision, the Respondent contended that reduced weight should be given in relation to the Applicant's eight nieces/nephews as his relationship with them is non-parental, and in relation to the 10 year old daughter with whom he has not had contact since she was two years old.
The Respondent also contended that when considered altogether, the primary considerations weigh heavily against revocation of the cancellation decision.
The Tribunal has carefully considered the evidence cumulatively and although the Applicant has not been the main caregiver of his and other’s children who are essentially cared for by their mothers and family, the Tribunal is of the view that to a varying degree, the best interests of the Applicant’s four minor children, nieces and nephews are best served by the revocation of the cancellation, as among other things, that would give the Applicant and the children an opportunity to develop what can be meaningful relationships, particularly with his four minor children. It is also significant that two mothers of the Applicant’s minor children are supportive of the Applicant and had expressed concerns for their children in case of non-revocation.
In those circumstances, the Tribunal gives this consideration significant weight in favour of revocation.
Expectations of the Australian community
The Direction at paragraph 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.[59] 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.[60]
[59] Direction 99 [8.5(2)].
[60] Direction 99 [8.5(2)(a)].
The Tribunal observes that the Direction contemplates that the expectations of the Australian community apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the community.[61]
[61] Direction 99 [8.5(3)].
The Federal Court of Australia’s decision in FYBR is significant.[62] In FYBR, the applicant argued that the Tribunal had erred in its approach that paragraph 11.3 of the then of Direction 65 as being deeming of what community expectations are, irrespective of the individual’s personal circumstances. The applicant argued that the Tribunal did not appreciate that it was permissible for it to assess whether community expectations would have been the same in relation to the applicant, given that he had already spent so much time in immigration detention.[63]
[62] FYBR v Minister for Home Affairs [2019] FCA 500 (‘FYBR’).
[63] FYBR v Minister for Home Affairs [2019] FCA 500 [21].
In rejecting the applicant’s argument, Perry J concluded:
It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases.[64]
[64] FYBR v Minister for Home Affairs [2019] FCA 500 [42].
On appeal to the Full Federal Court, the majority of the Court (Charlesworth and Stewart JJ) essentially concluded that paragraph 11.3 contained a statement of the Australian Government’s views as to the expectations of the Australian community that must be applied,[65] that it is not for the decision-maker to make his or her own assessment of the community expectations,[66] and that in the context of Direction 65, community expectations as expressed normatively are what the Government says that they are (even though ascertainable community expectations might be quite different).[67]
[65] FYBR v Minister for Home Affairs [2019] FCAFC 185 [66].
[66] FYBR v Minister for Home Affairs [2019] FCAFC 185 [67].
[67] FYBR v Minister for Home Affairs [2019] FCAFC 185 [91].
The Tribunal is satisfied that the Applicant has been convicted of multiple serious offences, including family violence. The Tribunal is satisfied that the Australian community expects that the Australian Government should not revoke the cancellation of the Applicant’s visa because of his conduct.
The Tribunal gives this consideration significant weight against revocation. However, this is moderated as the Applicant is to be afforded under paragraph 5.2(5) of the Direction the benefit of a higher level of tolerance. The principle at paragraph 5.2(5) of the Direction indicates that 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.[68]
[68] In Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 802, the Court rejected the applicant’s submission that ‘most of their life’ in cl 6.3(5) of Direction No 79 (as per para 5.2(5) of Direction No 99) meant ‘most of their adult life’: at [32]. That is, it found that the meaning is plain and that a higher level of tolerance may be afforded to non-citizens who have spent most of their life in Australia, not ‘most of their adult life’.
Direction 99 introduced the principle that 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. The Applicant has been in Australia for most of his life, including during his formative years.
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.
The Direction divides the considerations to be applied in this paragraph into two sections:
(1) non-citizens covered by a protection finding; and
(2) non-citizens not covered by a protection finding.
The Applicant has not made any protection claims and the material before the Tribunal does not reveal any potential protection claims.
Accordingly, the Tribunal gives this consideration neutral weight.
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.
The Applicant is 35 years old and he has had a drug and alcohol issue but has not used illicit drugs for about 18 months. There are no linguistic or cultural barriers. The Applicant is worried that he would relapse and would not be able to remain drug-free if removed from Australia. Although the Applicant has extended family in New Zealand, he contends that he does not have, or want to have any contact with them, as they are affiliated with gangs and most of them are drug dependent.
The Applicant contends that he would not have anyone to support him in New Zealand and he is worried that he would not be able to find work, accommodation, and the support he requires. He contends that he possesses limited marketable skills, and has been unemployed for years, which would impact his employment potential and ability to establish himself.
The Applicant is most concerned about his 4 minor children and he contends that separating from them would cause him significant emotional hardship.
The Applicant argues that in case of his deportation, although his mother would return to New Zealand with him, as she is not in good health, that would be detrimental to her physical and mental health, which would ultimately have an adverse impact on him.
In his report, Mr Borenstein observed that the Applicant requires ongoing treatment for his symptoms of post-traumatic stress disorder, and removal him from Australia would result in the deterioration in the Applicant’s mental health. Mr Borenstein noted that psychological treatment will provide the Applicant with an opportunity to undertake necessary treatment relating to, among other things, unresolved and traumatic grief over the stillborn death of his infant daughter. In this regard, the Tribunal accepts the Respondent’s submissions that New Zealand offers comparable access to health, and social services. As such, there is no reason why the Applicant could not obtain psychological treatment, or any other necessary treatment or engage available welfare services whilst seeking employment. However, the Tribunal is of the view that the access must be considered in the context of the Applicant’s mental health which could impact his ability to navigate a different environment.
On the cumulative evidence, the Tribunal is satisfied that if removed from Australia, the Applicant would experience significant mental, emotional, practical and financial hardships, which would be difficult to overcome.
Although the Respondent accepts that this consideration weighs in the Applicant's favour, the Respondent contends that it does not outweigh the weight the Tribunal should give the primary considerations which weigh heavily against revocation of the cancellation decision.
The Tribunal is satisfied that on balance, significant weight in favour of revocation is to be given to this consideration, and the Tribunal has done so.
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.[69]
[69] Direction 99 [9.3].
One of the Applicant’s victims, Ms F gave evidence about the impact of non-revocation, which she believed to be significant. She is in support of the revocation.
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.
There is no evidence of impact on an Australian business.
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 visa cancellation process is a holistic one and is not intended to be robotic or formulaic. The decision has to take into account and give appropriate weight to the considerations under the Direction, as well as other relevant matters. The Applicant has been convicted of serious and violent offences, and some of his convictions relate to family violence which is viewed seriously under the Direction. There is also a risk of reoffending.
An important consideration for the Tribunal is that the Applicant is to be afforded under paragraph 5.2(5) of the Direction the benefit of a higher level of tolerance, namely that 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.[70] Direction 99 introduced the principle that 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. The Applicant has been in Australia for most of his life, including during his formative years.
[70] In Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 802, the Court rejected the applicant’s submission that ‘most of their life’ in cl 6.3(5) of Direction No 79 (as per para 5.2(5) of Direction No 99) meant ‘most of their adult life’: at [32]. That is, it found that the meaning is plain and that a higher level of tolerance may be afforded to non-citizens who have spent most of their life in Australia, not ‘most of their adult life’.
Other significant issues in this case include the Applicant’s mental health, his four minor children, impact on his parents and siblings, and impediments to removal. The best interests of the Applicant’s four minor children, as a primary consideration weighs heavily in favour of revocation of the cancellation the visa. His ties to Australia, as a primary consideration, weighs heavily in favour of revocation, noting in particular his length of stay, family ties and the impact on his family members. The hardship he would face is another factor weighing in favour of revocation.
The Tribunal has given significant weight to the very serious nature of the offences committed by the Applicant which involve family violence, and his risk of reoffending. The Tribunal acknowledges that non-citizens who have engaged in acts of family violence raise legitimate concerns such that the Australian community would expect they should not continue to hold a visa. The Tribunal is mindful that where significant harm could be inflicted, any risk of reoffending may be considered unacceptable. However and consistent with the principles in the Direction, the Applicant is to be afforded a higher degree of tolerance because he has lived in Australia for most of his life and from a very young age.
Although there are aspects against revocation, the Tribunal is satisfied that the cumulative evidence indicates that the aspects in favour of revocation outweigh the aspects against revocation.
Having regard to all relevant material before it, the Tribunal is satisfied that the correct and preferable decision is to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
The decision under review is set aside, and in substitution, the mandatory cancellation of the Applicant’s visa is revoked.

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for the decision herein of Deputy President Antoinette Younes.

................................[SGD]...................................
Associate
Dated: 2 May 2024

Date of hearing:

17 – 18 April 2024

Applicant:

Mr F Nikjoo

Solicitor for the Respondent:

Mr M Gauci, Hunt & Hunt Lawyers

Date of hearing:	17 – 18 April 2024
Applicant:	Mr F Nikjoo
Solicitor for the Respondent:	Mr M Gauci, Hunt & Hunt Lawyers