XFZC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2021] AATA 3385

XFZC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3385 (21 September 2021)
Division:GENERAL DIVISION
File Number: 2021/4548
Re:XFZC
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION
Tribunal:Ms C Burnett-Wake, Member
Date:21 September 2021
Place:Melbourne

The Tribunal affirms the decision under review.
……………………………………….
Ms C Burnett-Wake, Member
Catchwords
MIGRATION – mandatory cancellation of Class TY Subclass 444 special category visa – where applicant has substantial criminal record – where applicant concedes he fails the character test – whether there is another reason under s 501CA of the Migration Act to revoke mandatory cancellation of the visa – ministerial direction no.90 – primary considerations – protection of the Australian community – the nature and seriousness of the conduct – the best interests of minor children – expectations of Australian community – other relevant considerations – extent of impediments if applicant is removed to New Zealand – impact on victims – ties to the Australian community – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
SZRTN v Minister for Immigration and Border Protection [2014] FCA 303
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Change the Story, p. 12, viewed 10 May 2016.
Our Watch, VicHealth & PWC, 2015, A high price to pay: The economic case for preventing violence against women, PWC, Melbourne,
REASONS FOR DECISION
Ms C Burnett-Wake, Member
21 September 2021
INTRODUCTION AND BACKGROUND

The Applicant seeks the review of a decision of a delegate of the Minister (“the Respondent”) dated 28 June 2021, made pursuant to section 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the mandatory cancellation of the Class TY Subclass 444 Special Category visa (“the visa”).[1]
[1] G-documents (“GD”2) pg.7.
Section 501CA(4) of the Act, provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period, provided for in the Migration Regulations 1994 (Cth) (“the Regulations”) (28 days in accordance with regulations 2.52), and the decision-maker determines that the Applicant passes the “character test”, or, as provided under section 501CA(4)(b), there is “another reason” why the mandatory cancellation should be revoked.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under section 501(6)(a) of the Act, the person has a “substantial criminal record” as defined by section 501(7). Relevantly, section 501(7) of the Act states:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
…
The Applicant is a 45-year-old male and citizen of New Zealand, who was born in Samoa.[2] He arrived in Australia on 9 August 1995, when he was 19 years of age.[3] He has subsequently left Australia on two occasions. The first was on 29 October 1998 and he returned on 23 May 1999.[4] The second was on 27 November 2004, and he returned on 8 January 2005.[5] On these re-entries to Australia, the Applicant declared he did not have any criminal convictions on his incoming passenger cards.[6]
[2] GD2, pg. 31.
[3] GD15, pg. 189.
[4] Ibid.
[5] Ibid.
[6] GD14, pg.186-188.
The Applicant is currently single.[7] However, he has four minor children in Australia. He also has two adult children who reside in Australia. Additionally, his father (his mother is deceased) and his 13 siblings, all reside in Australia. The Applicant also has a large extended family in Australia.[8]
[7] Transcript of Proceedings dated 1 September 2021, pg. 20.
[8] GD9, pg. 90.
The Applicant has an acquired brain injury as a result from a childhood accident, which was further compounded in a motor vehicle accident as an adult. As a result, the Applicant has suffered from learning difficulties.[9]
[9] GD7, pg. 53.
The Applicant had a troubled upbringing, having been exposed to physical violence and sexual abuse during his childhood.[10]
[10] GD6, pg. 54 and 56.
The Applicant has a long history of alcohol abuse and has undergone numerous rehabilitation courses to address his dependency. He has undertaken at least one anger management course and a parenting course.[11]
[11] GD13, pg. 164. GD13, pg. 179-180.
The Applicant has maintained stable employment in the construction industry throughout his adult life. He has undertaken various courses to strengthen his employment opportunities.[12]
[12] GD13, pg. 178 and 181.
The Applicant’s offending history has caused him to be dealt with by the New Zealand Court system twice, once in 1994 and then again in 1995.[13] He has been before the Australian Court system on multiple occasions since 1997. Culminating with the Magistrates’ Court of Victoria handing down a sentence to the Applicant on 16 September 2020, convicting him of contravene family violence intervention order int. harm/fear and two counts of common law assault, for which he was sentenced to an aggregate term of 12 months’ imprisonment and fine an aggregate of $750.00.[14]
[13] GD4, pg.36.
[14] GD3, pg. 34-35.
The Applicant has faced two prior cancellation actions of his visa due to his offending.[15] On 8 February 2013, the delegate of the Minister decided to issue the Applicant with a formal warning that his visa cancellation may be reconsidered if he were to commit further offences. On 9 April 2013, a delegate of the Minister decided not to cancel the Applicant’s visa. He was issued a formal warning and signed an acknowledgment that failure to heed the warning would weigh against him.[16] On 27 July 2015, the Applicant’s visa was mandatorily cancelled for the second time.[17] On 9 November 2016, a delegate of the Minister revoked the cancellation.[18] The Applicant again signed an acknowledgment that if he were to reoffend this may result in the cancellation of his visa.[19]
[15] GD11, pg. 101-105. G12, pg.106-08
[16] GD11, pg.105.
[17] GD12, pg. 106.
[18] Ibid.
[19] GD12, pg. 108.
On 27 November 2020, whilst the Applicant was serving his term of imprisonment relating to the 16 September 2020 conviction, the Respondent, pursuant to section 501(3A) of the Act, decided to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test because of the operation of section 501(6)(a) (substantial criminal record) on the basis of section 501(7)(c),[20] (i.e. that he had been sentenced to 12 months or more imprisonment).[21]
[20] G16, pg.190.
[21] Ibid.
Notice of this decision was given to the Applicant by hand. In accordance with regulation 2.52(2)(b), the Applicant was invited to make representations to the Minister about revoking the cancellation decision within 28 days after he had received the notice. The Applicant made representations[22] to the Minister on 16 December 2020, within the period and in the manner specified.
[22] GD8-GD10, Revocation Request. See Personal Circumstances Form, GD9, pg. 81–100.
On 29 June 2021, pursuant to section 501CA(4) the Respondent decided not to revoke the visa cancellation decision made under section 501(3A) of the Act.[23] On 21 April 2021, the Applicant made the present application to this Tribunal for a review of that decision.[24] The Tribunal has jurisdiction to review this decision pursuant to section 500(1)(ba) of the Act.[25]
[23] GD2, pg. 7.
[24] GD1, pg. 1–6.
[25] The Act, section 500(6B).
On 15 July 2021, the Tribunal held a Case Management Directions hearing and made a Direction that the Applicant, by 3 August 2021, must lodge with the Tribunal and serve on the Respondent:
a.    a signed witness statement from all witnesses proposed to be called at the hearing;
b.    all reports, records and any other documents on which the Applicant intends to rely at the hearing; and
c.     any Statement of Facts, Issues and Contentions.
The Applicant failed to comply with the Direction of the Tribunal, subsequently, on 9 August 2021, the Tribunal held a Non-Compliance hearing to discuss why the Applicant had failed to follow the Direction. The Applicant stated that due to being unrepresented and his learning difficulties he was having difficulty gathering information. He told the Tribunal that he would, however, provide information as soon as he could. The Tribunal issued a subsequent Direction that he had until 11 August 2021 to comply. The Tribunal also warned the Applicant of the ‘two-day rule’ and that it would not be able to consider any documents submitted within 2 days prior to the hearing.
The Respondent had no objection to the Tribunal granting the Applicant ample time to lodge material. The Applicant again failed to comply with the subsequent Direction of 11 August 2021.
The hearing took place on 1 September 2021, by video conference under section 33A of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”). The Applicant appeared via video link and was unrepresented. The Respondent was represented by Mr Christopher Orchard of Sparke Helmore Lawyers.
The Applicant did not submit any witness statements nor any supporting evidence. The evidence in-chief provided by the Applicant did not change the nature of the case, it merely ‘put flesh on the bones’,[26] as such the Tribunal is of the view that it should not be excluded from consideration.
[26] SZRTN v Minister for Immigration and Border Protection [2014] FCA 303 at [70].
The complete suite of written material forming the exhibit record is further particularised in the Exhibit Annexure attached hereto and marked “A”.
ISSUES
Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this provides that:
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.
It is not disputed that the Applicant has made the representations required by section 501CA(4)(a) of the Act.
There are therefore two issues presently before the Tribunal:
(a)Whether the Applicant passes the character test; or
(b)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the cancellation of the Applicant’s visa should be revoked.
In considering section 501CA(4), it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[27]
…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[28]
[27] Minister for Home Affairs v Buadromo [2018] FCAFC 151.
[28] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in section 501(6) of the Act. Under section 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in section 501(7). Section 501(7)(c) provides that a person has a “substantial criminal record” if they have “been sentenced to a term of imprisonment of 12 months or more”. Section 501(7A) provides that for the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part) the whole of each term is to be counted in working out the total length of the terms.
The Applicant pleaded guilty in the Magistrates’ Court of Victoria on 16 September 2020 to the offences (as detailed in paragraph [10]), with Magistrate AG Burns remarking the Applicant’s behaviour demonstrates a propensity for violence against women.[29] He received an imprisonment term of 12 months.[30]
[29] GD6, pg. 63.
[30] GD7, pg. 65.
As the custodial term imposed was “a term of imprisonment of 12 months or more”, the Applicant does not pass the character test by virtue of his “substantial criminal record” as defined in section 501(7)(c) of the Act.
The Tribunal notes that the Applicant has conceded that he does not pass the character test as prescribed by section 501 of the Act, and that the original decision to mandatorily cancel his visa was properly made under section 501(3A) of the Act. The Tribunal is therefore, consequently satisfied that the Applicant does not pass the character test, pursuant to section 501(6)(a) of the Act. The Applicant therefore cannot rely on section 501CA(4)(b)(i)[31] of the Act for the mandatory cancellation of his visa to be revoked.
[31] Note: This provides that the Minister is satisfied that the person passes the character test (as defined by section 501).
The second question therefore is found in section 501CA(4)(b)(ii), namely whether there is another reason why the original decision should be revoked.
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
Ministerial Direction No. 90
In considering whether to exercise the discretion in section 501CA(4) of the Act, the Tribunal is bound by section 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction No. 90”) has application.[32]
[32] On 8 March 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction No. 90.
The purpose of the Direction as stated in paragraph 5.1(4) is to guide decision-makers in performing functions or exercising powers under sections 501 and 501CA of the Act
Paragraph 5.2 of the Direction sets out the principles which bind this Tribunal:
The principles below provide the framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The factors (to the extent relevant in the particular case) that must be considered in making a decision under section 501 or section 501CA of the Act are identified in Part 2.
(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 non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)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 other 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 8.4(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.
Paragraph 6 of the Direction requires that, informed by the principles in paragraph 5.2, decision-makers must take into account the considerations in paragraphs sections 8 and 9, where relevant to the decision.
Paragraph 7(1) of the Direction provides that in applying the considerations (both primary and other), 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. Paragraph 7(3) provides that one or more Primary Considerations may outweigh other Primary Considerations.
Paragraph 8 of the Direction sets out the following Primary Considerations in making a decision under section 501(1), 501(2), or 501CA(4):
(1)Protection of the Australian community from criminal or other serious conduct;
(2)Whether the conduct engaged in constituted family violence;
(3)The best interests of minor children in Australia; and
(4)Expectations of the Australian community.
The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 9 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Links to the Australian community, including:
(i) strength, nature and duration of ties to Australia; and
(ii) impact on Australian business interests.
The Tribunal now turns to a more detailed consideration of Direction No. 90.
Primary Consideration: Protection of the Australian Community (paragraph 8.1)

Direction No. 90 sets out the government’s commitment to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens, and states that decision makers should have particular regard to the principle that entering or remaining in Australia is a privilege that is conferred, and comes with expectations that a person has been, and will be, laws abiding, respect institutions and will not cause or threaten harm to individuals or the Australian community.[33]
[33] Direction No. 90, part 2, paragraph 8.1(1).
In determining the weight applicable to the Primary Consideration – Protection of the Australian Community, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
(a) The nature and seriousness of the non-citizen’s conduct to date; and
(b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date (paragraph 8.1.1)
Application of Factors in Paragraph 8.1.1(1) of the Direction
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors is:
(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i. violent and/or sexual crimes;
ii. crimes of a violent nature against women or children, regardless of the sentence imposed;
iii. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b) …;
(c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e) the cumulative effect of repeated offending;
(f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).[34]
[34] Direction No. 90, part 2, paragraphs 8.1-8.11.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature; crimes of a violent nature against women or children, regardless of sentence imposed; and acts of family violence, regardless of whether there is a conviction for an offence or sentence imposed, are viewed very seriously.
The Applicant’s criminal offending is summarised in the following table and is a reproduction of his Australian criminal history check dated 26 November 2020 and his New Zealand criminal history check dated 22 December 2020.[35]
[35] GD3, pg.34-35 and GD4, pg. 36.

44.     Court

45.     Date

46.     Offence

47.     Result

48.     DANDENONG

49.     MAGISTRATES

50.     COURT

51.     16/09/2020

52.     CONTRA-FAM VIOL INTERV ORDINT

53.     HARM/FEAR

54.     Aggregate 12 MONTHS

55.     imprisonment.

56.     Concurrent.

57.     DANDENONG

58.     MAGISTRATES

59.     COURT

60.     16/09/2020

61.     COMMON LAW ASSAULT (2 Charges)

62.     CRIMINAL-DAMAGE (INTENT DAMAGE/DESTROY)

63.     CONTRAVENE-A CONDUCT

64.     CONDITION OF BAIL

65.     COMMIT-INDICTABLE OFFENCE

WHILST ON BAIL

66.     With conviction, fined an

67.     aggregate of $750.00

68.     Pending charge

69.     12/07/2020

70.     CONTRAVENE FV IVO INTENT TO HARM/FEAR

71.     RECKLESSLY-CAUSE INJURY

72.     INTENTIONALLY CAUSE INJURY

73.     At the date of issue, these charges have not been determined by a court.

74.     This cannot be regarded as a finding of guilt against the individual named above.

75.     DANDENONG

76.     MAGISTRATES

77.     COURT

78.     06/05/2019

79.     CONTRA-FAM VIOLENCE FINAL INTERVENT ORDR

80.     With conviction, fined

81.     $600.00 with $82.40

82.     statutory costs.

83.     MELBOURNE

84.     MAGISTRATES

85.     COURT

86.     14/07/2014

87.     CONTRAVENE-FAM VIOLENCE

88.     INTERVENTN ORDER

89.     RECKLESSLY CAUSE INJURY

90.     UNLAWFUL ASSAULT

91.     Aggregate 4 MONTHS

92.     imprisonment.

93.     Concurrent.

94.     MELBOURNE

95.     COUNTY COURT

96.     11/05/2011

97.     AGGRAVATED BURGLARY

98.     2 YEARS IMPRISONMENT.

99.     MELBOURNE

100.    COUNTY COURT

11/05/2011

101.    ROBBERY

102.    18-MONTHS IMPRISONMENT. 9

103.    MONTHS OF SENTENCE CONCURRENT.

104.    MELBOURNE

105.    COUNTY COURT

106.    11/05/2011

107.    ATTEMPT ROBBERY

108.    12-MONTHS IMPRISONMENT. 6

109.    MONTHS OF SENTENCE CONCURRENT.

110.    DANDENONG

111.    MAGISTRATES

112.    COURT

113.    15/05/2002

114.    INTENTIONALLY CAUSE INJURY

6 MONTHS imprisonment.

Concurrent.

115.    Sentence is partially

116. suspended under Section 27 of the Sentencing Act 1991.

117.    term to be served is 1 MONTH. for 18 MONTHS.

118.    DANDENONG

119.    MAGISTRATES

120.    COURT

121.    22/09/1997

122.    Breach re 12/08/1997 UNLAWFUL ASSAULT ASSAULT IN COMPANY

123.    BREACH OF COMMUNITY BASED ORDER. ORDER CANCELLED. BOTH

124.    CHARGES CONVICTED

125.    COMMUNITY BASED ORDER FOR 11 MONTHS.

126.    DANDENONG

127.    MAGISTRATES

128.    COURT

129.    12/08/1997

130.    UNLAWFUL ASSAULT

131.    ASSAULT IN COMPANY

132.    BOTH CHARGES CONVICTED

133.    COMMUNITY BASED ORDER FOR 12 MONTHS

134.    Otahuhu DC

135.    10/02/1995

136.    Assault Person With Blunt

137.    Instrument

138.    Convicted and Sentenced: Supervision by

139.    Community Corrections - 10/02/1995 – 6 Months / Non Residential Periodic

Detention - 10/02/1995 - 6 Months /

Additional Information - U/T ANGER MANAGEMENT

140.    Otahuhu DC

141.    11/03/1994

142.    Com Asslt(Domestic)Cr

143.    Act(Manually)

144.    Convicted and Sentenced: Fine - NZ$400.00

The Respondent’s Statement of Facts Issues and Contentions (“SFIC”) summarised the Applicant’s offending as follows:
24. The applicant has committed a number of violent crimes which are viewed very seriously by the Australian Government and the Australian community (paragraph 8.1.1(1)(a) of Direction 90). Those offences include:
a.    On 11 March 1994, he was convicted of common assault (Domestic) in Otahuhu District Court (G4);
b.    On 10 February 1995, he was convicted of assault person with blunt instrument in Otahuhu District Court (G4);
c.     On 12 August 1997, he was convicted of unlawful assault and assault in company for which he received a community based order for 12 months. This involved a violent assault on a female that he showed an interest in whilst at a party (G3 & G6/60);
d.    On 22 September 1997, he was convicted of unlawful assault and assault in company which was a breach of his community based order. The applicant received a community based order for 11 months (G3);
e.    On 15 May 2002, he was convicted of intentionally cause injury and sentenced to six months imprisonment, partially suspended (G3);
f.   On 11 May 2011, he was convicted of aggravated burglary, robbery and attempt robbery for which he was sentenced to an aggregate three years and three months imprisonment. The details of the incident are recorded at G5. On 18 February 2009 at about 4.45am, the applicant and three co-accused entered a house with the intention of stealing drugs, money or other items of property. Six people were present at the address including a child, and four of the adults were assaulted including one female. A number of items were stolen. The applicant was aware that there were persons present when he entered the house and that violence or threat of violence would be used to take the property;
g.    On 14 July 2014, he was convicted of contravene family violence intervention order, recklessly cause injury and unlawful assault for which he was sentenced to an aggregate four months imprisonment (G3);
h.    On 12 July 2020, he was charged with contravene family violence intervention order intent to harm/fear, recklessly cause injury and intentionally cause injury which as at 26 November 2020 had not been determined by a court (G3);
i.   As outlined above at paragraphs 6 and 18, on 16 September 2020, he was convicted of contravene family violence intervention order int. harm/fear and two counts of common law assault and sentenced to an aggregate sentence of 12 months imprisonment. On the same date, the applicant was convicted of criminal damage (intent damage/destroy), contravene a conduct condition of bail and commit indictable offence whilst on bail for which he was fined an aggregate of $750. The sentencing remarks for this offending can be found at G6. The victim was the applicant’s partner of three years who he lived with. The applicant and the victim attended his sister’s house and were drinking with the sister and COM. The applicant accused OM of flirting with his partner. The applicant became highly aggressive and attacked his partner by pinning her to the couch and repeatedly punching her in the face. OM attempted to intervene and the applicant responded by punching her in the face approximately 10 to 15 times. The applicant picked up a ceramic vase and threw it at OM narrowly missing her head. The applicant continued assaulting his partner and in total punched her in the face approximately 20 times. The applicant was on bail at the time (G6/51).
The Tribunal notes that the Applicant, has pleaded guilty to all offences. The sentencing remarks of His Honour Judge Guallaci made on 11 May 2011 in the County Court of Victoria indicate that, had the Applicant not pleaded guilty, a much harsher sentence would have been imposed.[36] This is the same for the proceedings in the Magistrates’ Court of Victoria on 16 September 2020, where the presiding Magistrate remarks that, if it was not for the plea of guilty, the sentence would have been greater.[37]
[36] GD10, pg. 46.
[37] GD6, pg. 63.
The Applicant provided a statement to the Department on 15 December 2020 and submits in respect to his offending:
All of my recent offending relates to the perceived threat and defence thereof to my family and my family units. I have never assaulted any member of the community that was not related to my family unit in some way. My most recent offending was to assault my sister’s partner when she was seriously intoxicated and began destroying the home, but throwing furniture and such like. I reacted in the moment....[38]
[38] GD10, pg. 98.
During cross-examination the Applicant was asked about his offending and convictions, he stated: “I admit to my offences, all offences.”
Under cross-examination, the Applicant did, in the Tribunal’s view, attempt to minimise and downplay his behaviour, particularly in relation to the conviction of 16 September 2020. Although he admitted to the offences and pleaded guilty, he described the event to the Tribunal as being more “like a scuffle and push” and one he did not start. He also stated he could not really recall the event as he was heavily intoxicated.
As the sentencing remarks for the conviction stated, the Applicant first punched his sister’s partner in the face approximately 10-15 times, threw a vase at her, narrowly missing her head, then assaulted his partner, punching her in the face approximately 20 times.
When it was put to the Applicant by the Respondent that he had no problems recalling straightforward convictions, yet he seemed to remember this incident as being less violent than the Court’s record demonstrated. The Applicant in response stated he was “a little but muddled up” because there was a lot of intervention orders and he had been to Court multiple times that year.
It concerns the Tribunal greatly that the Applicant framed the version of events in a way that was at odds with the sentencing remarks, which he downplayed significantly. The Applicant telling the Tribunal that he could not really recall the event because he was ‘heavily intoxicated’ or ‘a bit muddled up’ minimises his involvement and downplays the seriousness of the offending that he pleaded guilty to. This, in the Tribunal’s view, demonstrates he cannot be remorseful for the offending. He claims he cannot recall and that goes directly to his insight and ability to reform by way of reflecting on his actions. Although the Applicant told the Tribunal that he was sorry and would not offend again, such statements give the Tribunal no confidence that he fully comprehends the nature of the family violence offending and the sort of offending that he’s partaken in.
The Victorian Police Service documents, produced under summons, detail a history of repeat offending of violent crimes, crimes of a violent nature against women and acts of family violence.[39]
[39] Exhibit R3: Respondent’s Tender Bundle (“RTB”) lodged 17 August 2021.
The evidence indicates that, apart from the conviction for aggravated burglary, every prior conviction involved a violent assault on either a female de facto partner, or a female that he showed an interest in whilst at a party. They all involved physical violence against females, both intimate partners and other females known to him. The Magistrate noted in the 16 September 2020 sentencing remarks that the Applicant’s “behaviour demonstrates a propensity for violence against women.”[40]
[40] GD6, pg.63.
The Tribunal is of the view that an application of this sub-paragraph (a) of 8.1.1(1) weighs in favour of a finding that the Applicant’s conduct is at least serious and, more likely, very serious, in nature.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that, without limiting the range of conduct that may be considered serious, the types of crimes or conduct considered by the Australian Government and the Australian community to be serious include:
(a)causing a person to enter into or being party to a forced marriage regardless of whether there is a conviction for an offence or a sentence imposed;
(b)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test;
(c)crimes committed in, or escape from, immigration detention;
(d)and crimes committed against vulnerable members of the community (such as the elderly and the disabled), or against government representatives or officials due to the positions they hold, or in the performance of their duties.
The Tribunal has carefully reviewed the Applicant’s offending history and it is not able to detect any offending referable to this sub-paragraph (b). As a result, this sub-paragraph (b) is not relevant to determination of this application.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) and (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
The Applicant’s offending history discloses at least six attempts by the Courts to punish through non-custodial means, be it in the form of fines, good behaviour orders and/or orders for payment of restitution. The Applicant’s criminal history also discloses multiple impositions of custodial terms from May 2002. Taken cumulatively, the sentences imposed equate to 76 months (six years and three months) of imposed custodial time.[41]
[41] GD3, pg.34-35 and GD4, pg.36.
Accordingly, for the purposes of this sub-paragraph (c) of paragraph 8.1.1(1), the sentencing periods and imposition of custodial terms imposed upon the Applicant very strongly support a finding the Applicant’s offending was at least serious, more likely very serious, in nature.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. The task involving the allocation of any weight to this sub-paragraph (d) largely mirrors that required in relation to the immediately preceding sub-paragraph (c). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
Dealing first with the frequency of the Applicant’s offending. This Applicant is 45 years of age. His offending history runs for approximately 25 years. The Tribunal has earlier outlined the nature of the sentences imposed across the evolution of his offending history.
The Tribunal acknowledges there was a 9-year gap in his offending between 2002 and 2011, however, there is a discernible increasing trend in the seriousness of the Applicant’s offending and a trend of him committing offences of a significantly more serious nature and more frequently; and he has been given more significant and longer custodial sentences.
According to the Applicant’s oral evidence, his offending is attributable to unresolved substance abuse, of alcohol. There is no doubt that, when he has been under the influence of alcohol, his capacity to assume responsibility for his regular and lawful duties as a non-citizen, together with his capacity to distinguish between right and wrong are severely impacted. During sentencing on 16 September 2020, the presiding Magistrate stated: “his history shows… that he gets drunk and he beats up women.”[42]
[42] GD6, pg.61.
The nature of his post-2011 offending is concerning. It involves the commission of offences that demonstrate a persistent disregard for the law and for conditional liberty arrangements, be they:
oin relation to violent crimes;
ocrimes of a violent nature against women;
oacts of family violence; and
obreaches of bail conditions.
There can be no question that his sense of right and wrong has been adversely affected by the impact of unresolved issues with alcohol.
Thus, an application of this sub-paragraph (d) of paragraph 8.1.1(1) leads to an inevitable finding that there is an increasing trend in the seriousness of the Applicant’s offending. The increasing level and severity are such as to attract a finding that his offending has been at least serious, more likely very serious, in nature.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns an examination of the cumulative effect of a non-citizen’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending.
There are several cumulative effects discernible upon reviewing the Applicant’s offending history. First, his criminal history runs for some 25 years. He has been afforded (on multiple occasions) opportunities to moderate and curb his propensity to offend. He has received the benefit, on multiple occasions, of the imposition of fines, community service, and supervisory-type non-custodial sentences including a period of probation. He has also received two official warnings from the Department of the consequences of further offending in terms of his migration status. However, his offending continued to escalate until he received custodial sentences.
The second cumulative effect arising from the Applicant’s offending is that he has failed to develop any measure of respect for the lawful authority governing the community back into which he now seeks re-admission. For example, the custodial sentence he received in 2011 did not deter him from continuing to engage in acts of violence and family violence.

A third observation about the cumulative effect of the Applicant’s offending relates to whether or not his issues with alcohol remain unresolved. In his oral evidence, he sought to suggest that his time in criminal custody had forever diverted him from a propensity to abuse alcohol. Be that as it may, it can be fairly found that a predisposition towards abusing alcohol was front and centre in his life.
It is clear that, while alcohol has been part of the Applicant’s life, his offending has been very serious. The Tribunal has little doubt that if he were to return to abusing alcohol in the general community, he would return to a pattern of serious to very serious offending as he had committed in the past.
The Tribunal is of the view that the cumulative effect of the nature and extent of the Applicant’s repeated offending attracts application of this subparagraph (e) of paragraph 8.1.1(1) in favour of a finding that his offending has been at least serious, more likely very serious, in nature.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
The Applicant completed incoming passenger cards on 8 August 1995 and 7 January 2005.[43] On both cards he did not disclose prior criminal convictions. The Applicant provided previous statements to the Department when questioned about why he had not disclosed his criminal convictions. He responded that he thought the question referred to criminal convictions in his country of origin and that he had been visiting his terminally ill grandmother and his grief may have contributed to the error.[44] During cross-examination, the Respondent asked the Applicant why he had ticked ‘no’ to the question regarding criminal convictions on his incoming passenger cards. In response, he stated that the air hostess had helped him fill it and that he did not know he was “under a criminal history” as he had not been inside a jail. In respect to the second card, and his 2005 entry (which was after he had received a custodial sentence in 2002) he stated he was ‘really bad’ at filling in forms and cannot remember ticking the ‘no’ box.
[43] GD14, pg. 187 and GD14, pg.186.
[44] GD2, pg. 20.
It is not lost on the Tribunal that the Applicant, in his verbal testimony, stated that his reason for not declaring he had a criminal conviction on his original entry form was because he had not spent time in jail, yet on his subsequent entry form, which was completed after he had spent time in jail, he still did not declare it.
Notwithstanding the claim made by the Applicant that he believed his New Zealand convictions did not amount to ‘criminal convictions’ because he had not spent time in jail and because he was grieving, and his later claims that he was bad at filling in forms and had assistance, the facts demonstrate that on both entries he had been subject to criminal convictions, as demonstrated in the criminal history checks. As such, the Tribunal finds that he did not disclose his criminal offending on two occasions.
Thus, an application of this sub-paragraph (f) of paragraph 8.1.1(1) leads to a finding that the Applicant provided false or misleading information to the Department by not disclosing prior criminal offending on two occasions, which is at least serious, more likely very serious, in nature.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.
The Applicant has faced two prior cancellation actions of his visa due to his offending. On 9 April 2013, a delegate of the Minister decided not to cancel the Applicant’s visa. He was issued a formal warning and signed an acknowledgment that failure to heed the warning would weigh against him.[45]
[45] GD11, pg.105.
On 27 July 2015, the Applicant’s visa was mandatorily cancelled. On 9 November 2016, a delegate of the Minister revoked the cancellation. The Applicant again signed an acknowledgment that, if he were to reoffend, this may result in the cancellation of his visa.[46]
[46] GD12, pg. 108.
The Applicant has had two prior occasions of formal warnings about the consequences of further offending on his visa’s status. Yet, he continued to offend notwithstanding these warnings. His failure to heed those warnings, in the Tribunal’s view, is a significant indicator of future risk and likelihood of participating in further offending. He has been given a ‘second chance’ twice but has demonstrated a propensity to ignore second chances and nonetheless continued to engage in unacceptable conduct and offences.
Thus, an application of this sub-paragraph (g) of paragraph 8.1.1(1) leads to a finding that the Applicant, has re-offended since being formally warned (twice) which is at least serious, more likely very serious, in nature.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a),(c) (d), (e), (f) and (g) in reference to paragraph 8.1.1(1) of the Direction that are relevant, the Tribunal is of the view that the Applicant’s offending and other conduct can be readily characterised as at least serious, more likely very serious, in nature.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct (paragraph 8.1.2)
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following and relevant factors on a cumulative basis:
(a)paragraph 8.1.2(2)(a) requires the Tribunal to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)paragraph 8.1.2(2)(b) requires the Tribunal to consider the likelihood of the non‑citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending; and
(c)paragraph 8.1.2(2)(c) requires, 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 nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct (paragraph 8.1.2(2)(a))
The Respondent contends in its SFIC that:
35. The Minister contends that the nature of the harm if the applicant were to reoffend is serious and likely to involve physical, psychological and financial harm to members of the Australian community and their property with adverse consequences for the health system and the justice system. The risk of further domestic violence is particularly concerning.
36. The applicant’s offending relates largely to his alcohol abuse (G6/57). The applicant also has an acquired brain injury and low IQ (G6/53). In the 2011 sentencing remarks, the judge considered that the applicant had reasonable prospects of rehabilitation if he controlled his alcohol abuse and remained drug free however he remained vulnerable to relapsing (G5/44). Over a number of years, the applicant has himself recognised his problem with alcohol and completed a number of courses in attempts to rehabilitate. In his statement provided to the department in 2013, the applicant indicated he had completed drug and alcohol courses and wanted to stay clean as a way to help the community (G13/164). In his 16 May 2016 letter, he stated that while in prison, he realised that alcohol and his brain injury were affecting his behaviour and that he should use his time in prison to rehabilitate himself. He completed two programs called ‘making changes’ and ‘positive lifestyle’. After he was released from prison he met with a drug and alcohol counsellor. During his subsequent four-month prison sentence he completed an intensive drug and alcohol program. He stated he understood alcohol was a major problem and he would seek professional help when he was released (G13/153-154). Despite these numerous attempts to rehabilitate, the applicant has continued to offend.
37. In his 15 December 2020 statement, the applicant states he been working through the 12-step Alcoholics Anonymous program with a fellow prisoner which has given him an insight into his past behaviour and the amends he needs to commence when he returns to the community. He has not completed voluntary courses during his most recent incarceration as they have been unavailable due to the COVID-19 pandemic (G10/98-99).
38. The Minister contends that the applicant’s recent representations, that he has adopted strategies to minimise his risk of offending including limiting alcohol intake, repeats representations made in the past, which have proved to be hollow. The Minister submits that there is insufficient evidence that the applicant has rehabilitated. The Minister contends that the Tribunal should find that the applicant remains a real risk of reoffending, that this risk in unacceptable and that the protection of the Australian community weighs heavily against revocation.
The Applicant has conceded that alcohol is the main trigger behind his offending.
The Applicant has however, contended that the Australian community are not at risk, stating: “I have never assaulted any member of the community that was not related to my family unit in some way”.[47]
[47] GD10, pg. 98.
During verbal evidence before the Tribunal, the Applicant on numerous occasions said he was “sorry” for his behaviour and “would not do it again” and wanted a “second chance”.
The Tribunal notes the Applicant’s letter to the Department dated 16 May 2016, regarding his previous visa revocation cancellation process. It relevantly states:
Firstly, I would like to apologise to the Department for my behaviour that has brought me in front of you today. More importantly to my victims, their families and friends for my inexcusable behaviour.
I would like to make a point to the Department at this time before discussing my National Police Certificate and it is important to note that I received a Brain Injury in my early childhood at the age of 6 years having fallen off a 2-storey house. The injury had a major impact on my life as I struggled as a child with regular mood swings, difficulties in learning and behavioural issues due to the injury.
The Tribunal acknowledges that the Applicant has undertaken several rehabilitation courses to address his alcohol dependency, including undertaking the alcoholics anonymous program. However, the Applicant has continued to consume alcohol. As reflected in the tender bundle submitted by the Respondent, the Applicant, in prison, tested positive to alcohol by way of urine sample on 2 January 2021. A prison disciplinary hearing was held, and the Applicant was fined. During cross-examination the Applicant was questioned about his consumption of alcohol in prison, which he admitted to doing.[48]
[48] RTB, pg.350.
In the Tribunal’s view, the submission put by the Applicant that he wanted a second chance, that he was sorry, and would not offend again is untenable given his ongoing consumption of alcohol. The Tribunal is not satisfied that the Applicant’s attempts to rehabilitate have been successful, a finding which is further supported by the fact the Applicant has continued to consume alcohol whilst in prison.
The Applicant’s assertion that the community is not at risk because he has only assaulted family members is morally indefensible. His family are members of the Australian community, directly impacted by his offending. It is the Tribunal’s view that, if further offending were to occur, it has the potential to cause serious physical, psychological and financial harm.
If the Applicant were to re-offend in a similar way, there is, in the Tribunal’s view, a likelihood that his offending will result in significant harm. It is therefore reasonable to find that the potential consequences flowing from the Applicant engaging in similar or identical offending would be serious to very serious.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (paragraph 8.1.2(2)(b))
The Applicant has asserted that he would not engage in further offending. The Tribunal, however, cannot accept this assertion in any form. The Tribunal is of the view that it is best informed of his likelihood of re-offending by assessing past patterns of behaviour. Particularly in relation to the fact he has had two prior formal warnings from the Department that if his behaviour and offending continued, it would have an adverse impact on his migration status. He did not heed these warnings and continued to offend. His custodial sentences have also not deterred him from reoffending. Further, and taking into consideration the fact and admission by the Applicant that alcohol is a trigger to his offending – in regards to which the Tribunal has found it is not satisfied he is rehabilitated – the only reasonable conclusion that can be drawn is that the Applicant would likely engage in further criminal conduct.
Whether the risk may be affected by the duration and purpose of the non-citizen’s intended stay (paragraph 8.1.2(2)(c))
Consideration must be given to whether the risk of harm may be affected by the duration and purpose of the Applicant’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa. The Applicant’s intention is to remain in Australia on a permanent basis to be with his family. The visa held by the Applicant allows New Zealand citizens to remain indefinitely in Australia.
Notwithstanding the Applicant’s desire to remain in Australia to be with his family, which the Tribunal acknowledges may be considered a compassionate reason to stay in the country. Given the Applicant’s likelihood to re-offend the Tribunal does not consider any length of visa duration as appropriate nor does it consider the risk of harm would be affected, or reduced if the Applicant was to remain in Australia for a shorter period.
It is, in the Tribunal’s view, safe to find that the nature of the harm if the Applicant were to re-offend in the community in a similar way is at least serious, more likely very serious, and could quite conceivably involve physical, financial and psychological harm to a catastrophic level. The Tribunal is of the view (and finds) that the factual circumstances of this Applicant’s offending is such that the nature and harm that may result from him re-offending is sufficiently serious that any future risk of harm is unacceptable to the Australian community.
The Tribunal concludes that the Applicant’s risk of re-offending is best informed by an application of principles 5.2(3) and (4) and paragraph 8.1.2(1) of the Direction. The Tribunal finds that the combined effect of those provisions is that the harm resulting from any return by the Applicant to his offending ways may very well be so serious such that any risk of similar conduct in the future is unacceptable.
Conclusion: Primary Consideration Protection of the Australian Community (paragraph 8.1)
The Tribunal has had regard to the provisions of paragraphs 8.1.1 and 8.1.2 of the Direction and has also had regard to sub-principles 5.2(3) and (4). The Tribunal finds that, first, the nature of the Applicant’s offending conduct to date is at least serious, more likely very serious, and, second, there is a sufficiently unresolved likelihood that he will engage in further at least serious, more likely very serious, conduct if returned to the Australian community.
In consideration of all the evidence and each of the relevant factors contained in the Direction, the Tribunal finds that Primary Consideration: Protection of the Australian Community weighs heavily in favour of non-revocation.
Primary Consideration: Family violence committed by the non-citizen (paragraph 8.2)
Direction No. 90 contains a Primary Consideration relating to family violence and is said to reflect the Government’s serious concern about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia.[49] The Government’s concerns in this regard are said to be proportionate to the seriousness of the family violence engaged in by a non-citizen.[50]
[49] Direction No. 90, part 2, paragraph 8.2.
[50] Ibid, part 2, paragraph 8.2(1).
This Primary Consideration is relevant where a non-citizen has been convicted, found guilty or had charges proven (however described) that involve family violence and/or there is information or evidence from an independent and authoritative source indicating they are or have been involved in the perpetration of family violence.
When considering the seriousness of the family violence engaged in by the non-citizen, paragraph 8.2(3) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(3) In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:
(a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
(b) the cumulative effect of repeated acts of family violence;
(c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the noncitizen's migration status, should the non-citizen engage in further acts of family violence.
Considerations pertaining to family violence committed by the Applicant are enlivened given his convictions.
The Respondent contends in its SFIC that:
41. In considering the seriousness of the family violence perpetrated by the applicant, the Minister makes the following contentions:
a. The applicant has engaged in repeated family violence over an extended period of time from 1994 to 2020 (paragraph 8.2(3)(a) of Direction 90). Prior to the incident that resulted in the applicant’s 2020 convictions, there had been 19 previous family violence incidents reported to police between the applicant and his partner who was the victim of the 2020 offending (G6/50). As noted in the 2020 sentencing remarks, there is “a consistent, very concerning theme” to the applicant’s offending; serious violent offences on female partners. “[H]is history shows … that he gets drunk and he beats up women” (G6/60-61).
b. The cumulative effect of the applicant’s repeated acts of family violence makes his conduct very serious (paragraph 8.2(3)(b) of Direction 90).
c. As outlined above at paragraphs 35-37, while the applicant has said that he has gained insight into his past behaviour and learnt additional strategies that will benefit his return to the community and lower the risk of him reoffending, he has, in the past, continued to offend despite being offered opportunities to rehabilitate, including through the completion of a number of drug and alcohol and violence intervention programs which do not appear to have had any positive effect. The Minister submits that the applicant has not made sufficient efforts to address the factors which contributed to his offending (paragraph 8.2(3)(c) of Direction 90).

For the purpose of paragraph 8.2(3)(a), the Applicant was first convicted in New Zealand in 1994 of a family violence related assault. The facts before the Tribunal demonstrate that there have been 19 family violence incidents reported to the police that the Applicant was involved in. The Applicant gave evidence in the hearing that in the lead up to his current prison sentence he had been to Court “every month or every two months” relating to family violence allegations against him. The last family violence act committed was, in the Tribunal’s view, abhorrent. The physical assault of two women with repeated punches to the face and head is extremely serious.
The Tribunal is satisfied that the Applicant escalated the level of family violence. The Tribunal considers that the Applicant’s history reflects frequent family violence and offending of increasing seriousness.
For the purpose of paragraph 8.2(3)(b), the evidence before the Tribunal demonstrates the repeated acts of family violence episodes escalated with the passage of time, cumulating in the current 12-month prison sentence that the Applicant is serving.
Although there is no evidence before the Tribunal of the cumulative impact on the Applicant’s family members, it is commonly accepted that family violence affects physical health and mental wellbeing. Family violence by a partner has an enormous impact on the women and children who experience it and on the community as a whole. Abuse and violence can severely limit the activities of women and children and affect their participation in all aspects of life.[51] The impact of violence against women and their children costs the Australian economy more than $21.7 billion per year, and this cost is rising.[52]
[51] Change the Story, pg. 12, viewed 10 May 2016.
[52] Our Watch, VicHealth & PWC, 2015, A high price to pay: The economic case for preventing violence against women, PWC, Melbourne, This study estimates that unless action is taken to prevent violence, the costs will accumulate to $323.4 billion over the thirty years to 2044–45.
The Tribunal is of the view that the cumulative effect of the Applicant’s family violence offending has led to his 12-month prison sentence and, as such, should be considered serious.
For the purpose of paragraph 8.2(3)(c), the Applicant has, in the Tribunal’s view, attempted to minimise responsibility for his conduct and does not exhibit any understanding of the impact of his behaviour on his victims, or on any children who may have been present.
The Tribunal is not satisfied that the Applicant’s efforts to address factors which contributed to his conduct have had an effect on his behaviour. Further, the Applicant claims to have not been the instigator and/or cause of the domestic violence episodes.
In reference to the event that took place in July 2014 the Tribunal notes the letter from the Applicant dated 16 May 2016, which was supplied to the Department regarding his previous visa cancellation revocation process, the letter relevantly states:
In July 2014 my ex-partner invited me to a barbeque where all my 5 children were present. I had a couple of drinks for the first time but was determined to drink in moderation. Towards the end of the gathering my 2 youngest kids wanted to spend some time with their father and to stay overnight with me, however, my ex-partner disagreed and she became very hostile towards me and I lost my temper and we began fighting.
The police were called and I was charged with Contravening a Family Violence Intervention Order and Unlawful Assault. I received a 4-month prison sentence.
I deeply regret my behaviour on the day and are so sorry my children had to witness their mum and day arguing but my children understand that it was their mother started the argument.[53]
[53] GD13, pg. 153-154.
This statement by the Applicant demonstrates he does not take responsibility for his actions and looks to blame others for the reasons behind his offending.
As the Tribunal has already found (paragraph [48]), the Applicant in cross-examination minimised and downplayed his behaviour in relation to the conviction of 16 September 2020.
The Tribunal accepts that he has attended various courses, whether they be for his alcohol dependency, anger management issues, or better parenting courses, however, he has continued to offend and the courses he has attended appear to have had little to no impact on his behaviour or insight into his offending.
For the purposes of paragraph 8.2(3)(c), the Tribunal is not satisfied that the Applicant accepts responsibility for his family violence related conduct. Neither is the Tribunal satisfied, for the purposes of paragraph 8.2(3)(c)(ii), that the Applicant understands the impact of his behaviour on the abused and witnesses. For the purpose of paragraph 8.2(3)(c)(iii), the Tribunal is not satisfied that the Applicant has made efforts to address factors which contributed to his conduct.
For the purpose of paragraph 8.2(3)(d), the Applicant has re-offended since being formally warned by the Department that future conduct or offences may have an impact on his migration status, yet he continued to offend and commit acts of family violence. Furthermore, although he received Court-imposed reprimands for family violence offences, including a prison sentence relating to the incident in 2014, he again continued to offend. Although the Applicant has received multiple warnings, both from the Department and the Courts, they were still not a sufficient deterrent for the Applicant to change his behaviour or curb conduct and acts of family violence. The fact remains, the Applicant has received multiple warnings yet continued to engage in further acts of family violence that can only be considered serious.
Conclusion: Primary Consideration: Family violence committed by the non-citizen (paragraph 8.2)
In consideration of all the evidence and each of the relevant factors contained in paragraph 8.2 of the Direction, the Tribunal finds that Primary Consideration: Family violence committed by the non-citizen weighs heavily in favour of non-revocation.
Primary Consideration: Best interests of minor children in Australia affected by the decision (paragraph 8.3)
Paragraph 8.3(1) of the Direction compels a decision-maker to determine whether cancellation is or is not in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to cancel the subject visa is expected to be made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Applicant has four minor children in Australia that are affected by the decision which the Tribunal will give consideration to, they are:
i.CU, daughter, aged 16 years;
ii.LU, daughter, aged 12 years;
iii.JU, son, aged 13 years; and
iv.AC, stepdaughter, aged 17 years.
In addition to his minor children, the Applicant has also indicated he has over 20 nieces and nephews in Australia. However, no evidence has been presented as to their ages or the extent of the relationships he has with them. The Tribunal accepts that the Applicant would have a natural affinity towards his nieces and nephews. However, as no evidence has been provided regarding the impact the decision would have on his nieces and nephews, the Tribunal will give his claim they will be affected neutral weight in respect to the considerations under paragraph 8.3.
Paragraph 8.3(4) of the Direction provides a list of factors to be considered in determining the best interests of the abovementioned minor children. Those factors relevantly comprise for present purposes:
(4) In considering the best interests of the child, 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.
Sub-paragraph 8.3(4)(a) of the Direction refers to the nature and duration of the relationship between the child/ren and the non-citizen. As a general proposition, less weight should be given to this factor where there have been long periods of absence or limited meaningful contact between the Applicant and the children.
The Applicant has given evidence that he plays a significant part in his minor children’s lives. The Applicant stated that prior to his current incarceration, although there were no formal custody arrangements in place for the children, that he would provide financial support for them, including paying for sporting activities, school needs, or buy them things they wanted. The Applicant also gave evidence that the children would stay with him on the weekends and he would take them to sporting or other activities and that he took an active part in the parenting, providing them financial and emotional support along with mentoring and assistance with helping them to navigate life choices. The Applicant stated he is close to all his minor children and has continued to have weekly contact with them via the telephone during his incarceration.
The Tribunal accepts the Applicant’s evidence regarding the relationship he has with his minor children. It accepts he has significant and meaningful relationships with them, and that he plays a parenting role in their lives, including providing financial assistance (when not incarcerated), as well as emotional and day-to-day support. The Tribunal accepts that he remains in contact with his minor children on a regular basis and plays an active part in supporting them whilst he is incarcerated.
The Tribunal gives strong weight to sub-paragraph 8.3(4)(a) in favour of the Applicant.
Sub-paragraph 8.3(4)(b) of the Direction requires a decision-maker to make an assessment of the extent to which the Applicant is likely to play a parental role in the future, taking into account the length of time until the child/ren turn 18. Any application of this sub-paragraph (b) is informed by the extent to which the Applicant has played any such role to date.
The evidence provided by the Applicant indicates he does have a parental role in relation to his minor children and that it will continue. The Tribunal accepts this evidence. The Tribunal therefore gives strong weigh to sub-paragraph 8.3(4)(b).
Sub-paragraph 8.3(4)(c) of the Direction involves an assessment of any negative impact of the Applicant’s prior conduct, and any likely future conduct, on any of the children.
There does not appear to be any specific evidence of an adverse impact of the Applicant’s past or future conduct on any of the children, however, the Tribunal considers that the Applicant’s past conduct and exposing them to family violence episodes would have impacted adversely on the children, along with his enforced separation from them due to his incarceration. The Tribunal therefore gives some weight in favour of not revoking the cancellation decision.
Sub-paragraph 8.3(4)(d) of the Direction refers to an assessment of the likely effect that any separation of the children from the Applicant would have on them, taking into account the Applicant’s ability to maintain contact in other ways.
The Applicant’s children have not seen him since he entered custody in September 2020. The Applicant told the Tribunal that he spoke with his children via telephone on a weekly basis, which it accepts. The Applicant only made general statements that the children would be adversely affected if he was to return to New Zealand. He did not expand upon this, nor did he provide evidence to support his statement on how they may be adversely affected. Nonetheless, the Tribunal accepts that his children would be adversely affected if he did not remain in Australia. However, this is mitigated somewhat as the Applicant will be able remain in contact with his children via telephone and other technological methods. He is currently maintaining contact with his children whilst in prison and can continue to do that if in New Zealand.
The Tribunal gives some weight in favour of the Applicant regarding sub-paragraph 8.3(4)(d).
Sub-paragraph 8.3(4)(e) of the Direction asks whether there are other persons who already fulfil a parental role in relation to the children.
The Applicant’s minor children live with their mother(s) and did so even prior to the Applicant’s incarceration. Although the Applicant had a co-parenting role, he was not the primary carer to the children. Notwithstanding this, the Tribunal accepts that the Applicant does fulfil a parenting role, and it would be more limited if he was in New Zealand. However, the children are primarily cared for by their respective mothers. As such, the Tribunal gives some weight in favour of the Applicant in respect to sub-paragraph 8.3(4)(e).
Sub-paragraph 8.3(4)(f) of the Direction requires the Tribunal to consider any known views of the children about their separation from the Applicant, having regard to their age and maturity.
No views of the children were put forward. The Tribunal does, however, accept that the Applicant has played a pivotal part in their upbringing and his children would experience some level of emotional distress in response to not being able to physically see him if he were living in New Zealand. The Tribunal therefore gives some weight in favour of the Applicant in respect to sub-paragraph 8.3(4)(f).
Sub-paragraph 8.3(4)(g) of the Direction looks to evidence that the child/ren have been, or are at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or have otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally.
There is no clear evidence before the Tribunal that any of the children have been specifically subjected to family violence perpetrated by the Applicant or have been abused or neglected by him in any way. There is however information that the children have been exposed to family violence by the Applicant against their mother(s), and this weighs against the Applicant.
Sub-paragraph 8.3(4)(h) of the Direction looks for evidence that the child/ren have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.
There is no evidence before the Tribunal that any of the children have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.
The Tribunal therefore gives sub-paragraph 8.3(4)(h) no weight.
Conclusion: Primary Consideration: Best interests of minor children in Australia affected by the decision (paragraph 8.3)
In consideration of all the evidence and each of the relevant factors contained in paragraph 8.3 of the Direction, the Tribunal finds that Primary Consideration: Best interests of minor children in Australia affected by the decision weighs in favour of revocation.
Primary Consideration: Expectations of the Australian Community (paragraph 8.4)
Direction No. 90 emphasizes that the Australian community expects non-citizens to obey Australian laws while in Australia and 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 them to enter or remain in Australia.[54]
[54] Direction No. 90, part 2, paragraph 8.4(1).
In addition, Direction No. 90 indicates visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. 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.[55] Accordingly, the Direction expressly states that the Australian community expects two things: first, that non-citizens will obey the law in Australia, and second, that the Government should refuse or cancel visas of persons who raise serious character concerns. The first concerns norms of conduct to be expected of non-citizens, and the second expresses an expectation about the outcome of the exercise of the power conferred by section 501 in respect of a particular person who has not fulfilled the first expectation.[56]
[55] Ibid, part 2, paragraph 8.4(2).
[56] See FYBR v Minister for Home Affairs [2019] FCAFC 185 at [69]–[72], [75], [95]–[96], [100]–[101].
Direction No. 90 also indicates the above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community. It further states that the primary consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case, a consideration which appears consistent with Full Federal Court authority in FYBR v Minster for Home Affairs [2019] FCAFC 185.
Factual circumstances relevant to this Primary Consideration: Expectations of the Australian Community (paragraph 8.4)
In assessing the weight allocable to this Primary Consideration: Expectations of the Australian Community, the Tribunal has had regard to the following circumstances arising from this matter’s factual matrix:
·The Applicant arrived in Australia in 1995, at the age of 19 years. He is now 45 years of age;
·The Applicant has four minor children in Australia, who he has parenting responsibility for – although he is not the primary carer;
·The Applicant’s offending history discloses at least six attempts by the Courts to punish the Applicant’s offending through non-custodial means, be it in the form of fines, good behaviour orders and/or orders for payment of restitution. The history also discloses multiple impositions of custodial terms from May 2002. Taken cumulatively, the sentences imposed equates to 76 months (6.3 years) of imposed custodial time;
·He has at least a serious, more likely very serious, history of offending in Australia;
·The Tribunal’s finding that, were the Applicant’s offending to be repeated, it could realistically have the potential for at least serious, more likely very serious, (and potentially catastrophic) physical, psychological or financial harm to members of the Australian community;
·While his contributions to the Australian community – via his employment history – are acknowledged, the reality to be derived from his criminal history is that his life in Australia has been dominated by his difficulties with the abuse of alcohol, cumulating in multiple prison sentences in relation to family violence:[57]
·It is acknowledged that the Applicant has engaged with courses and treatment processes. However, the resulting rehabilitative effects have not deterred the Applicant from relapsing and consuming alcohol and further offending; and
·The Applicant has received two official warnings from the Department that if he further offended his migration status may be affected, however, this has not deterred the Applicant from further offending.
[57] Exhibit R2: Pages [30] to [34] National Criminal History Check dated 8 October 2018.
The Evolution of the Australian Community’s “Expectations”

In 2003, this Tribunal said that in considering weight attributable to this Primary Consideration 8.4, one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[58]
[58] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] (per Deputy President Block).
In 2017, Deputy President Forgie of this Tribunal considered that paragraph 13.3(1) of the Direction leads a decision-maker to:[59]
“102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…”
[59] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
This more circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection (“YNQY”):[60]
“In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes.”
[60] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer also thought the last two sentences of paragraph 13.3 of the Direction:
“…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…”
[Tribunal underlining]
In Afu v Minister for Home Affairs (“Afu”),[61] Justice Bromwich said:
“The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.”
[Tribunal underlining]
[61] Afu v Minister for Home Affairs [2018] FCA 1311 at [85].
In FYBR v Minister for Home Affairs (“FYBR”),[62] Justice Perry observed that:
“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...” [63]
[Tribunal underlining]
[62] FYBR v Minister for Home Affairs [2019] FCA 500.
[63] Ibid, paragraph [42] (Perry J).
The single Judge decision in FYBRwas appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld the single judge decision in FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian community.[64]
[64] Ibid.
Thus, the Full Court’s decision in FYBR, along with the existing authorities of YNQY and Afu establish that:
(a)The “expectations of the Australian community” cannot be measured or determined as in the case of a provable fact. Rather, it is an assessment of community values made on behalf of that community.[65]
(b)It is not for the Tribunal to determine for itself what such “expectations” are by reference to the applicant’s circumstances or evidence about those expectations;[66]
(c)The Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks the “expectations of the Australian community” are, and the Tribunal should have due regard of those statements, if made;[67] and
(d)In assessing the weight attributable to this Primary Consideration: Expectations of the Australian Community, decision‑makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision-maker.[68]
[65] Afu at paragraph [85].
[66] FYBR at paragraph [42].
[67] Ibid, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[68] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Analysis – Allocation of Weight to this Primary Consideration
The Applicant has a long-term work history in this country and has undertaken several courses to enhance employment and income earning opportunities.
The Tribunal accepts, that the Applicant would likely be able to find employment if he was back in the Australian community.
In answering the question “List positive contributions you have made to Australia for example, volunteer activities, participation in community and cultural activities, employment etc”, in his Personal Circumstances Form, the Applicant said the following: “Cultural participation”.
The Applicant provided further information in his personal statements previously submitted to the Department that he has participated in cultural activities, sporting activities and regularly participates in his father’s church services.[69]
[69] GD10, pg. 98-99.
The Tribunal accepts that the Applicant has participated in cultural activities, sporting activities and attends his father’s church services. However, the Tribunal is of the view that the Applicant’s participation is not frequent in its quantum or nature. He has only provided very limited information through his own testimony. There is no third-party evidence as to the level of actual participation to support his claims.
The Applicant’s at least serious, more likely very serious, offending has surely breached the expectations of the Australian community. His offending history is demonstrative of a significant failure to abide by the laws of Australia. In ascertaining the weight attributable to this Primary Consideration, the Tribunal takes into account the following factors and/or findings:
(a)As outlined above, the Applicant has made (and has the potential to make) positive contributions to the Australian community through his employment history;[70]
(i)Save and except for periods of incarceration, the Applicant lived in the mainstream Australian community for approximately 25 years prior to his last prison sentence in September 2020;[71]
(ii)The very serious nature of the Applicant’s offending to date;
(iii)The Tribunal’s finding that the risk of the Applicant again committing similar or identical offending is likely given his lack of rehabilitation to address his alcohol abuse and his continual consumption of alcohol, which has continued even whilst in prison; and
(iv)The Tribunal’s assessment of the quite significant and broad-ranging risk of substantial and potentially catastrophic physical, psychological or financial harm to the Australian community were he to re-offend.
Conclusion: Primary Consideration: Expectations of the Australian Community (paragraph 8.4)
[70] Direction No. 90, part 2, paragraph 5.3(4).
[71] Ibid.
The Tribunal is of the view that, in the specific circumstances of this case, the deemed community expectation weighs heavily against revoking the cancellation decision.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. The Tribunal will now consider each.
International non-refoulement obligations (paragraph 9.1)
The Applicant responded as follows in relation to any apprehended fear of harm were, he to be removed to New Zealand:
Do you have any concerns or fears about what would happen to you on return to your country of citizenship?
[The Applicant ticked the ‘no’ box][72]
[72] GD9, pg. 94.
Further, the Applicant did not raise and the Tribunal has not identified any non-refoulement obligations relevant to the Applicant’s circumstances.
The Tribunal therefore concludes that this consideration is not relevant to the determination of this application and it is given neutral weight in relation to revocation of the mandatory cancellation of his visa.
Extent of impediments if removed (paragraph 9.2)
As a guide for exercising the discretion, paragraph 9.2(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)The non-citizen’s age and health;
(b)Whether there are any substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to that non-citizen in that country.
In his Personal Circumstances Form, the Applicant speaks of adverse outcomes were he to be returned to New Zealand as follows:
“Are there any other problems you would face if you have to return to your country of citizenship?
Loss of family ties”[73]
[73] GD9, pg. 94.
The Applicant is a male in his mid-forties and in apparently good state of physical health. In response to the question in his Personal Circumstances Form “Do you have any diagnosed medical or psychological conditions?”, the Applicant ticked the “Yes” box and outlined that he had an “acquired brain injury”.[74] The Tribunal accepts that the Applicant has an acquired brain injury based on the documentary evidence on the file. This is also accepted by the Respondent. He will however, if required, be able to access medical care, treatment, and governmental social support in New Zealand for those symptoms/condition(s) to the same (or very nearly the same) level as that available to him in Australia. The Applicant will have access to those services and supports in the context of what is generally available to other citizens of New Zealand. Thus, the Applicant’s age and state of health are not factors that attract any measure of weight in relation to this Other Consideration.
[74] GD9, pg. 93.
The Tribunal notes there are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in New Zealand.[75] New Zealand is culturally and linguistically similar to Australia. It cannot be said that the Applicant will face significant linguistic or cultural barriers in New Zealand, his country of citizenship. While the Applicant contends that his lack of familial ties in New Zealand presents an impediment he would face upon a return to New Zealand, the Tribunal is of the view that these would be overcome if he were to return. The Tribunal accepts that the Applicant would go through a period of adjustment re-establishing himself, however, would likely find accommodation and employment in New Zealand. The Tribunal considers those challenges are not insurmountable and there may be some short-term hardship, however, this would not preclude his successful re-settlement there.[76]
[75] Direction No. 90, part 2, paragraph 9.2(b).
[76] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] (per Senior Member Kelly).
As mentioned earlier, the Applicant had a stable employment history in Australia. There is little evidence in the material to cavil with the contention that the Applicant would be able to find work in New Zealand.
Having regard to the totality of the evidence, the Tribunal is of the view that this Other Consideration weighs in slight favour of revocation.
Impact on victims (paragraph 9.3)
There does not appear to be any evidence before the Tribunal that the Applicant’s continued presence in Australia would have an adverse impact on any of his victims. In the absence of such evidence, the Tribunal cannot find that this Other Consideration (9.3) attracts any weight either in favour of, or against, the revocation of the Applicant’s visa and it is thus neutral.
Links to the Australian community (paragraph 9.4.1)
The Applicant first came to Australia in 1995 aged 19 years. Weight in favour of the Applicant can be found upon an application of paragraph 9.4.1(2)(a)(ii). The Tribunal has, earlier in this decision, set out the Applicant’s employment history in Australia. The Tribunal accepts the Applicant has spent time making a positive contribution to the Australian community through his long period of stable and continuous employment until 2020. On that basis a moderate level of weight in his favour can be allocated pursuant to an application of paragraph 9.4.1(2)(ii).
Regard must also be had to paragraph 9.4.1(2)(b) of the Direction which is concerned with the strength, duration and nature of any family or social links the Applicant has with Australian citizens and/or people who can otherwise remain here indefinitely. It is clear from the evidence that the Applicant has ties with Australian citizens and/or people who have an indefinite right to remain in Australia. As mentioned earlier, he arrived in Australia aged 19 years and is now 45 years of age. He has spent 25 years of his life in Australia.
The Applicant has four minor children living in Australia. His father lives in Australia, and he has adult children also living in Australia. In addition, he has 13 brothers and sisters all who live in Australia. The Applicant has also stated he has over 100 family members living in Melbourne.
The Tribunal notes the evidence submitted regarding the Applicant’s strong ties to his family. The Tribunal accepts that the Applicant’s family, as listed, permanently reside in Australia. The Tribunal accepts that if the Applicant was prevented from returning to Australia it would cause his family members and himself emotional distress.
With specific reference to this paragraph 9.4.1(2)(b), the Tribunal finds that the strength, nature and duration of the Applicant’s relationships with members of the Australian community are strong and palpable.
The Tribunal finds that this paragraph 9.4.1(2)(b) weighs strongly in favour of a finding to restore the Applicant’s visa status to remain in Australia.
Impact on Australian business interests (paragraph 9.4.2)
There is no evidence before the Tribunal that cancellation of the Applicant’s visa would have an impact on Australian business interests. This consideration is not relevant to determination of this application.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations: relating to Protection of the Australian Community; Family violence committed by the non-citizen and the Expectations of the Australian Community, which each weigh heavily in favour of non‑revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·International non-refoulement obligations: not relevant;
·Extent of impediments if removed: slight weight;
·Impact on victims: neutral;
·Links to the Australian community: strong weight; and
·Impact on Australian business interests: not relevant.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under section 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As the Tribunal has noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before the Tribunal, there is not another reason for the Tribunal to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by section 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the Considerations referred to in the Direction. The Tribunal finds as follows:
·Primary Consideration: Protection of the Australian Community weighs heavily in favour of non-revocation;
·Primary Consideration: Family violence committed by the non-citizen weighs heavily in favour of non-revocation;
·Primary Consideration: Best interests of minor children in Australia affected by the decision weighs in favour of revocation; and
·Primary Consideration: Expectations of the Australian Community weighs heavily in favour of non-revocation.
The Tribunal has outlined the weight attributable to the Other Considerations. The Tribunal does not consider that the totality of the weight attributable to the relevant Other Considerations combined outweighs the significant combined and determinative weight that the Tribunal has attributed to the Primary Considerations: relating to Protection of the Australian Community; Family violence committed by the non-citizen and the Expectations of the Australian Community.
A holistic view of the Considerations in the Direction therefore favours affirming the non-revocation decision.
Taking into account the weight attributed to the various Considerations, the discretion to revoke the cancellation of the Applicant’s visa has not been exercised in the Applicant’s favour.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 188 (one hundred and eighty-eight) paragraphs are a true copy of the reasons for the decision herein of Ms C Burnett-Wake, Member

[sgd]……………………………….
Associate
Dated: 21 September 2021

Date of hearing: 1 September 2021

Applicant: Self-Represented

Advocate for the Respondent: Mr Christopher Orchard

Solicitors for the Respondent: Sparke Helmore Lawyers
Exhibit Annexure (“A”)
2021/4548 XFZC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Exhibits’ Number

Description of Exhibits

R1

G-Documents lodged on 22 July 2021

R2

Respondent’s Statement of Facts, Issues and Contentions dated 17 August 2021

R3

Respondent’s Tender Bundle lodged on 17 August 2021

44. Court	45. Date	46. Offence	47. Result
48. DANDENONG 49. MAGISTRATES 50. COURT	51. 16/09/2020	52. CONTRA-FAM VIOL INTERV ORDINT 53. HARM/FEAR	54. Aggregate 12 MONTHS 55. imprisonment. 56. Concurrent.
57. DANDENONG 58. MAGISTRATES 59. COURT	60. 16/09/2020	61. COMMON LAW ASSAULT (2 Charges) 62. CRIMINAL-DAMAGE (INTENT DAMAGE/DESTROY) 63. CONTRAVENE-A CONDUCT 64. CONDITION OF BAIL 65. COMMIT-INDICTABLE OFFENCE WHILST ON BAIL	66. With conviction, fined an 67. aggregate of $750.00
68. Pending charge	69. 12/07/2020	70. CONTRAVENE FV IVO INTENT TO HARM/FEAR 71. RECKLESSLY-CAUSE INJURY 72. INTENTIONALLY CAUSE INJURY	73. At the date of issue, these charges have not been determined by a court. 74. This cannot be regarded as a finding of guilt against the individual named above.
75. DANDENONG 76. MAGISTRATES 77. COURT	78. 06/05/2019	79. CONTRA-FAM VIOLENCE FINAL INTERVENT ORDR	80. With conviction, fined 81. $600.00 with $82.40 82. statutory costs.
83. MELBOURNE 84. MAGISTRATES 85. COURT	86. 14/07/2014	87. CONTRAVENE-FAM VIOLENCE 88. INTERVENTN ORDER 89. RECKLESSLY CAUSE INJURY 90. UNLAWFUL ASSAULT	91. Aggregate 4 MONTHS 92. imprisonment. 93. Concurrent.
94. MELBOURNE 95. COUNTY COURT	96. 11/05/2011	97. AGGRAVATED BURGLARY	98. 2 YEARS IMPRISONMENT.
99. MELBOURNE 100. COUNTY COURT	11/05/2011	101. ROBBERY	102. 18-MONTHS IMPRISONMENT. 9 103. MONTHS OF SENTENCE CONCURRENT.
104. MELBOURNE 105. COUNTY COURT	106. 11/05/2011	107. ATTEMPT ROBBERY	108. 12-MONTHS IMPRISONMENT. 6 109. MONTHS OF SENTENCE CONCURRENT.
110. DANDENONG 111. MAGISTRATES 112. COURT	113. 15/05/2002	114. INTENTIONALLY CAUSE INJURY	6 MONTHS imprisonment. Concurrent. 115. Sentence is partially 116. suspended under Section 27 of the Sentencing Act 1991. 117. term to be served is 1 MONTH. for 18 MONTHS.
118. DANDENONG 119. MAGISTRATES 120. COURT	121. 22/09/1997	122. Breach re 12/08/1997 UNLAWFUL ASSAULT ASSAULT IN COMPANY	123. BREACH OF COMMUNITY BASED ORDER. ORDER CANCELLED. BOTH 124. CHARGES CONVICTED 125. COMMUNITY BASED ORDER FOR 11 MONTHS.
126. DANDENONG 127. MAGISTRATES 128. COURT	129. 12/08/1997	130. UNLAWFUL ASSAULT 131. ASSAULT IN COMPANY	132. BOTH CHARGES CONVICTED 133. COMMUNITY BASED ORDER FOR 12 MONTHS
134. Otahuhu DC	135. 10/02/1995	136. Assault Person With Blunt 137. Instrument	138. Convicted and Sentenced: Supervision by 139. Community Corrections - 10/02/1995 – 6 Months / Non Residential Periodic Detention - 10/02/1995 - 6 Months / Additional Information - U/T ANGER MANAGEMENT
140. Otahuhu DC	141. 11/03/1994	142. Com Asslt(Domestic)Cr 143. Act(Manually)	144. Convicted and Sentenced: Fine - NZ$400.00

Date of hearing:	1 September 2021
Applicant:	Self-Represented
Advocate for the Respondent:	Mr Christopher Orchard
Solicitors for the Respondent:	Sparke Helmore Lawyers

Exhibits’ Number	Description of Exhibits
R1	G-Documents lodged on 22 July 2021
R2	Respondent’s Statement of Facts, Issues and Contentions dated 17 August 2021
R3	Respondent’s Tender Bundle lodged on 17 August 2021