1. The Applicant was born in New Zealand in 1977. He is a citizen of that country. He is now aged 47.
2. The Applicant was associated with a criminal gang as a juvenile in New Zealand.[4] He was sent to "boot camp" for 6 weeks.[5] The Applicant told the Tribunal that gangs were commonplace where he grew up. Some of his extended family were also gang members. At one point in his evidence, he said that he left New Zealand to get away from the gang culture.
3. The Applicant began drinking alcohol in his early teens. His drinking became worse over time. He accepts that he has a serious drinking problem.[6]
4. He first came to Australia for 12 days, and then later 5 days, in 1998.[7]
5. He returned to Australia for almost a year in in 2002. He lived in Sydney.[8]
6. The Applicant met TK in Sydney.
7. He spent most of 2003 in Australia as well. He left on 29 December 2003.[9]
8. The Applicant and TK moved to Ireland.[10] They were married there. They have one child, HB.[11] HB is now an adult. He lives in Ireland.[12]
9. Their relationship failed, and after about 8 years, the Applicant returned to New Zealand early in 2011, for a few weeks.[13]
10. On 19 May 2011, the Applicant came to Australia.[14] He was almost 34 years old. He has lived here since then. Over the next few years, he travelled overseas for short periods, on numerous occasions.[15]
11. When asked about this he said that he mainly visited holiday destinations in Asia, although he did visit New Zealand for family events, like weddings.
12. The Applicant went to Western Australia in search of work.[16] He did work in the mining industry, some of it on a fly-in, fly-out basis.[17] He seems to have been employed in various roles until about 2015-16, when he lost his job.
13. The Applicant says that he started using methamphetamine when he was working at a mining camp in about 2012-2013. His use of the drug increased over time. He became a heavy user. He has described himself as a "drug addict".[18] He told the Tribunal that his use was ongoing, when he could afford it.
14. Between November 2015 and 2017, the Applicant committed various minor offences, many involving possession of methamphetamine, for which he was fined.[19]
15. On 16 September 2015, WA Police records state:

"Approximately 10:30hrs on Wednesday 16 September 2015, police were on Matebore Street in Nickol and had a vehicle stopped in relation to another matter.

At this time police observed a Holden Commodore 1CJD760 sedan pull into the driveway of 28A Matebore Street, Nickol.

The accused was the driver of the vehicle and was spoken to by police in relation to another matter (smashed windscreen).

Police noticed a strong smell of cannabis emanating from the vehicle.

The accused was searched and in his right hand shorts pocket was a plastic container containing a quantity of clip seal bags and one of the bags contained a small quantity of Methyl amphetamine.

The accused was cautioned and spoken to in relation to this and provided a full and frank admission to unlawful possession of methyl amphetamine stating that it was his own methamphetamine for his personal use.

The accused was advised that he would be summonsed for the methyl amphetamine and the present charge is preferred.

Request destruction of SMEW000891978 containing a small plastic container containing clip seal bags and methyl amphetamine.

Accused explanation:- "It's just a little bit of amphet for my own use, I know it's wrong, sorry"."[20]

1. On 17 November 2015, the Applicant appeared in the Karratha Magistrates Court charged with possession of a prohibited drug (methamphetamine). He was fined $400.[21]
2. The Applicant told the Tribunal that he met his partner TR, when he was in Karratha. She told the Tribunal that they met in Northbridge, a suburb of Perth, when they were both homeless. Either way, by late 2015 or early 2016, the Applicant and TR were in a relationship. They were both homeless drug/alcohol addicts, living in Perth.[22]
3. They now have 3 children. Child A, a son, is aged 7. Child B, a daughter, is aged 5. Child C, a daughter, is aged 3.[23]
4. On 1 May 2016, WA Police records state:

"At about 3:10pm on Sunday the 1st of May 2016, the accused was sitting outside the State library, at the Francis Street entrance.

The accused was spoken to by police and had his bag searched.

Police found a glass smoking implement in a 'Bose' case.

Police advised the accused, he would be summonsed, with the present charge preferred.

EXPLANATION: "It's mine, I use it to smoke meth. It's black inside because they must have chopped the meth with something else."[24]

1. On 1 June 2016, the Applicant appeared in the Perth Magistrates Court charged with possession of drug paraphernalia. He was fined $300.[25]
2. On 26 October 2016, the Applicant appeared in the Perth Magistrates Court charged with possession of drug paraphernalia. He was fined $100. He was also fined for riding a bicycle without a helmet or lights.[26]
3. On 25 November 2016, the Applicant appeared in the Perth Magistrates Court charged with possession of drug paraphernalia. He was fined $300. He was also convicted of possession of a prohibited drug (methamphetamine) and fined $1000.[27]
4. On 4 December 2016, WA Police records state:

"On Sunday 4th December 2016 at about 5.40pm the accused was at the Brass Monkey Pub & Brasserie, 209 William Street, NORTHBRIDGE 6003.

Police spoke to the accused in relation to another matter.

As a result Police searched the accused's person locating a glass smoking implement containing traces of methamphetamine.

Police seized these items placing them in a security movement envelope.

The accused made full admissions to being in possession of the smoking implement.

The accused was advised he will be summonsed for the charges preferred"[28]

1. On 13 January 2017, the Applicant appeared in the Perth Magistrates Court charged with possession of drug paraphernalia. He was fined $400.[29]
2. On 25 January 2017, the Applicant appeared in the Perth Magistrates Court charged with possession of drug paraphernalia. He was fined $300.[30]
3. In February 2017, the Applicant and TR moved to Brisbane.[31] The Applicant said that he "got away from drugs and crime".[32] His ticket was paid for by the Salvation Army. He was however, back using drugs again after a month or two.[33] This is borne out by his criminal record.
4. On 24 February 2017, the Applicant was involved in creating a public nuisance. Police records state:

"The defendant in this matter is John Rudolf BELMONT 15/07/77 who was identified by his historic photograph on a Police computer system.

At approximately 9:15pm on Friday 24th of February 2017 the defendant and an associate where waiting to cross the intersection of Wickham Street and Brunswick Street Fortitude Valley which falls within the boundaries of the Fortitude Valley Safe Night Precinct. Whilst waiting to cross another group of people were discussing the merits of a street performer who was busking nearby. The defendants associate took umbridge at what they were saying and became verbally abusive and started to flail her arms towards this group.

The defendant has then become involved in the disturbance becoming verbally abusive, swearing and flailing his arms towards this other group of people, thereby being disorderly in a public place. This altercation continued as all parties entered the Brunswick Street Mall and Police from Fortitude Valley were alerted by a concerned member of the public. Police immediately attended the scene

On arrival Police observed the defendant being verbally abusive, swearing and in a pugilistic stance challenging another male person. Other members of the public in the immediate area moved away from him in order to avoid the disturbance. The defendant was immediately arrested for a Public Nuisance offence.

He was subsequently transported to Brisbane City Watch House where he was bailed to attend Brisbane Magistrates Court on the 10th of March 2017 at 8:30am."[34]

1. On 10 March 2017, the Applicant appeared in the Brisbane Magistrates Court charged with committing a public nuisance in or in the vicinity of licensed premises. No conviction was recorded, but he was fined $200.[35]
2. On 3 April 2017, the Applicant was again involved in creating a public nuisance. Police records state:

"King George Square Brisbane City is a large open public square with a large number of the public using it as a through fare between Ann Street and Adelaide Streets, Brisbane City. King George Square contains a number of cafes, licenced premises and City Hall all used by the public.

At approximately 11:30pm on the 3rd of April 2017 Police from Brisbane City were tasked to attend King George Square in relation to a male attempting to start fights with members of the public.

City Safe footage depicted the defendant aggressively walking towards members of the public causing them to deviate to avoid the defendant as he verbally abused them.

On arrival Police located the defendant on Ann Street, Brisbane City in an agitated state yelling and swearing at a nearby person, immediately on observing Police the defendant has yelled "Here we fuckin go, going on take me away cunts" or words to that effect. The defendant was very aggressive towards Police yelling, swearing and attempting to get Police to come and fight him. The defendant was told repeatedly by Police to calm down and sit on the ground after several requests by Police her defendant has laid on the ground and placed his hands behind his back. The defendant was subsequently arrested and handcuffed.

Police have attempted to speak with the defendant throughout the conversation the defendant has yelled at Police using the word "fuck" and "cunts" on numerous occasions.

The defendant was transported to the Brisbane City Watchhouse and charged with the matter before the court.

The defendant was warned on arrest about his language and his aggressive course of behaviour, however the defendant continued behave in this manner throughout Police interaction at the arrest address and right through the charging process at the Brisbane City Watchhouse."[36]

1. The Applicant had no recall of this event but said that he was intoxicated.[37]
2. On 20 April 2017, the Applicant appeared in the Brisbane Magistrates Court charged with committing a public nuisance in or in the vicinity of licensed premises. A conviction was recorded, and he was fined $500.[38]
3. On 16 October 2017, the Applicant appeared in the Brisbane Magistrates Court charged with committing a public nuisance and obstructing a police officer. No conviction was recorded, but he was fined $450.[39]
4. On 29 September 2018, the Applicant was again involved in creating a public nuisance. Police records state:

"On the 29th day of September 2018 police were conducting foot patrols of Lower River Terrace in Kangaroo Point from around 5pm. Police had been tasked with patrols of the area due to the influx of people in attendance for the Riverfire festivities. Police observed many families and young children crowding the side of the riverbank waiting for fireworks to commence.

At around 6pm police received multiple complaints from members of the public that a group of people were behaving offensively on the boardwalk. The complaints were that whenever people went near the area of the boardwalk where the group were sitting a male person would become very aggressive and shout for them to 'fuck off', within earshot of other families and young children.

Charge 1 of 2: (SOA) 6(1) Commit public nuisance

Police went to speak with the group and identified a male person who appeared visibly intoxicated. The male was slurring his speech, smelt strongly of alcohol and could be heard swearing at passers-by. Police spoke with the male and he provided a New Zealand passport identifying himself as John BELMONT, the defendant. Whilst speaking with police the defendant was aggressive and repeatedly swore loudly. The defendant was repeatedly warned to cease his offensive behaviour.

The defendant stated he was leaving and began to walk off. While walking down the crowded boardwalk the defendant continued to swear stating 'those fucking copper cunts I did nothing fucking wrong.' Police observed members of the public looking uncomfortable as the defendant walked past swearing, several parents were observed covering their children's ears and facing them away from the defendant.

Police determined the defendant would not cease this behaviour which constituted public nuisance, and police therefore attempted to place him under arrest by handcuffing him.

Charge 2 of 2: (PPRA) 790(1)(b) Obstruct Police Officer

Due to operational constraints for Riverfire, multiple road closures resulted in a delay of approximately 20 minutes for a police vehicle to arrive to transport the defendant. During this time the crowd of onlookers were subjected to the defendant screaming an abusive offensive rant at police. The defendant repeatedly struggled with police after he was placed under arrest struggling against being placed in handcuffs, and continually trying to pull away from police. The defendant continued to abuse and threaten police saying, 'I will remember you and fuck your mother' and 'if you do not take your hand off my shoulder I will fuck you up, you cunt.'

When a police vehicle arrived, the defendant continued to struggle against police and had to eventually be forcibly placed into the vehicle. While transporting the defendant to the watch house the defendant stated, 'I will piss myself and shit myself in here so you fucking cunts will have to clean it up.' The defendant was transported to Brisbane City Watch House where he was charged and set to appear in Brisbane Magistrate Court on the 16th day of October 2018 at 8:30am."[40]

1. The Applicant had some recall of this event. He was arguing with his partner, and he was again intoxicated.[41]
2. On 7 January 2019, the Applicant completed an incoming passenger card on which he declared that he had no criminal convictions.[42] On the same day he was granted the visa.[43]
3. In relation to this he said that he did not read the card properly and that he had no intention to deceive.[44]
4. On 26 August 2019, the Applicant was drunk and aggressive at home. Police records state:

"Current Incident: On Monday 26th of August 2019 1 Police were detailed to a domestic incident occurring at [Redacted Text] involving a male and female person. Police attended the address and obtained access into the residence. The residence was messy but sanitary. Police detained a male person who was identified to be the RESP in this matter. Police observed nil injuries on the RESP nor the AGG however there were four holes in one of the bedrooms where the AGG was babysitting two young children. It was obvious the holes were freshly damaged.

Aggrieved told Police: Stated to Police that an argument was about his alcohol drinking The AGG stated the RESP returned home from work and started drinking a large amount of alcohol throughout the night and was in an angry violent rage over moving items in the house. This cause the RESP to start punching and kicking the bedroom wall causing a large hole. The children were also present in the room and it was alleged that the RESP was holding the young newborn in his arm when it punched and kicked the wall.

Respondent told Police: Stated that the initial verbal argument evolved over some clothes and cleaning of the dwelling. RESP denied any property damage and physical altercation had taken place and it was plain verbal argument with the AGG. Investigating officer obtained version from the AGG and re-questioned the RESP who then admitted to punching the wall however denied holding the child at any time.

Conditions Sought: Mandatory Conditions. The AGG still wishes to continue the relationship with the RESP and having two young children will be a burden should further conditions be imposed on the RESP.

Necessary or Desirable to protect the Aggrieved and Named Person: The Protection order is necessary to protect the AGG and Named Persons from Domestic Violence due to the escalation of the RES P's anger management and consumption of liquor.

History of previous acts of Domestic Violence and Police attendance:

Nil recorded incident involving both the AGG or RESP to Police.

Criminal Complaints: Nil complaint made to Police about Wilful Damage.

Police believe there is a history of domestic violence against the AGG that has been perpetrated by the RESP. Due to the circumstances, it is imperative that the AGG and Named Person is protected from further acts of Domestic Violence by way of making application for a Protection order.

State grounds as to why the child/children are to be named on the order.

Necessary or Desirable to protect the Aggrieved and Named Person: The Protection order is necessary to protect the AGG and Named Persons from Domestic Violence due to the escalation of the RESP's anger management and consumption of liquor."[45]

1. The Applicant accepts that he was affected by alcohol and that he did damage the wall.[46]
2. On 28 August 2019, a Domestic Violence Order was made for the protection of TR and her then 2 children. This order was current until 28 August 2024.[47]
3. On 25 February 2020, the Applicant contravened the Domestic Violence Order.[48] Police records state:

"At about 6pm on Tuesday 25 February 2020 police from Upper Mount Gravatt and Holland Park police stations attended (address) in relation to a reported disturbance. Police spoke to all parties and determined that a verbal and then a physical altercation argument had occurred. It commenced when the parties sent many inflammatory text messages to each other, the more abusive of which had been sent by the aggrieved. After finishing work the defendant went to the pub, during which the aggrieved put some of his belongings on the front lawn and set them on fire, sending photos of this to the defendant. The aggrieved also smashed the defendant's guitar and a kitchen window.

The defendant returned home and the two had a heated argument, during which the aggrieved threatened him with a golf club. The defendant then pushed the aggrieved and chased her inside the house, where he pushed her down onto the floor and held her there with his hand on her neck, and although it left marks it was not to the extent that it compromised her breathing. After one of the housemates yelled at the defendant to stop he let the aggrieved go.

Police attended a short time later and obtained versions from both the aggrieved and the defendant, and from the two housemates although they were somewhat less forthcoming. Police saw the broken kitchen window, the smashed guitar and the smouldering remains of the defendant's belongings on the front lawn. Police also saw the messages earlier exchanged between the aggrieved and the defendant. The aggrieved' s conduct both in terms of the messages and her aggression towards the defendant upon his return home was in itself grounds for a domestic violence cross-order, so after she was seen to by ambulance officers (and later by staff at the PA Hospital) a domestic violence application was completed against her.

The defendant was taken to the Brisbane City Watch House, charged and released on bail to appear at Holland Park Magistrates Court on 19 March. Incidentally, in addition to the cross-order application against the aggrieved, police also completed an application to vary the current order against the defendant to include no-contact conditions etc. That application was listed for mention at Holland Park on 4 March.

The defendant was moderately intoxicated and somewhat worked up but otherwise cooperative with police."[49]

1. In relation to this he said that he was drunk at the time.[50]
2. The Applicant agreed that this record was accurate.
3. On 4 March 2020, a Temporary Protection Order (TPO) was made for the benefit of TR and their 2 children. The TPO was served on 7 March 2020.[51]
4. On 26 March 2020, the Police records state:

"On the 19th March 2020, the defendant has entered into a bail undertaking at the Holland Park Magistrates Court to attend the Holland Park Magistrates Court on the 26th March 2020.

On the 26th March 2020, the defendant has failed to attend the Holland Park Magistrates court in accordance with his bail undertaking.

Police have attended [redacted text] in relation to a domestic violence call. Police have located the defendant and checks within the Police Qlite system revealed the defendant was wanted on a warrant.

Police subsequently arrested the defendant in relation to the outstanding warrant. The defendant was belligerent with police and was too intoxicated to be able to be asked any questions in relation to not attending court on the 26th March 2020.

The defendant was transported to the Brisbane City Watch House and charged for this and other offences."[52]

1. On 9 April 2020, the Applicant contravened a Domestic Violence Order.[53] He was taken into custody, where he remained until 12 June 2020.[54] The Applicant assaulted TR. Police records state:

"The couple are the subject of Temporary Protection Order made in the Holland Park Magistrates Court on the 4th March 2020. The defendant is named as the respondent and the victim is named as the aggrieved. There are two children also named on the order. The defendant was served with a copy of this order on the 7th March 2020. There are six (6) conditions on the Temporary Protection Order.

On the 9th April 2020 at about 5pm police were called to in relation to a disturbance occurring. Upon arrival police took up with the two witnesses and occupants of the address who stated that there were two people fighting but they had left and it was sorted.

Approximately an hour later police were called back to the address in relation to another disturbance. Police were sent with lights and sirens. Upon arrival police located the defendant sitting down with another male outside. The defendant was heavily intoxicated and the aggrieved was visibly upset. The defendant was also wanted on a warrant and was advised he was under arrest for the warrant. The defendant was placed in the police van and also advised police were investigating domestic violence.

Police took up with the victim who stated the defendant had punched her in the face a couple of times during an argument and had placed his hands around her throat and hurt the aggrieved's wrist which is in a cast. The victim sustained a cut lip and had red marks on her face. QAS attended and treated the victim.

The defendant was not interviewed due to his intoxication level. The defendant was transported to the Brisbane City Watch house and charged with contravention of the Temporary Protection Order."[55]

1. In relation to this he said he did not recall the event, but he accepted that he was drunk, that he had punched TR in the face a couple of times, that he put his hands around her throat. He did not accept that he deliberately hurt her wrist.[56] At the Tribunal hearing he did accept that the police version of events was correct.
2. On 11 April 2020, the Applicant appeared in the Brisbane Magistrates Court charged with failure to appear in accordance with an undertaking. No conviction was recorded, but he was fined $300.[57]
3. On 12 June 2020, the Applicant appeared in the Brisbane Magistrates Court charged with contravention of Domestic Violence Orders on 25 February and 9 April 2020. He was sentenced to 64 days imprisonment as time already served and 18 months' probation, for 2 counts of contravening an AVO.[58] At that time QLD Corrective Services assessed his risk as high for substance abuse and domestic violence.[59] His risk of reoffending was assessed as 5/20.[60]
4. The Applicant accepts that he knew from this time that any further offending may result in him losing his visa.[61]
5. He was released on 18 months' probation.[62]
6. When the Applicant was released from prison on 12 June 2020, he started using alcohol again after a "couple of weeks". This quickly deteriorated into heavy drinking. He also resumed taking drugs after a "couple of months".[63]
7. On 14 July 2020, the Applicant completed an assessment questionnaire. In it, he stated that TR was "very safe" from future violence or threats of violence. He also said that she felt "very safe" from threats of violence.[64] He admitted to having "knowingly breached" a DVO.[65] He admitted to having verbally abused TR, controlling her money, grabbing or shoving her, hitting her, throwing things, choking her, punching through walls and damaging property, "often".[66] He also made various other admissions, including that he blames TR for her injuries.[67] He said that at the time he believed that it "wasn't going to be the same again".[68]
8. On 29 July 2020, the Applicant reported to QLD Corrective Services. Their note says:

"Substance Abuse Risk Note: First meeting with Mr Belmont. His presentation indicated that he could have been under the influence of a substance, mainly alcohol. At times he presented to be drowsy and his eyes appeared glazed. His mood fluctuated at times during the interview, to the point he was agitated.

SCM asked about his substance use and he denied use of Ice, however admitted he uses alcohol in moderation and stated in the past he would rely on this substance as a coping mechanism. SCM enquired of recent use of alcohol and he stated he had a few drinks last night. This is an area to monitor during the course of supervision. SCM did wish to propose Drug Arm intervention, however due to his fluctuating mood it was not canvassed.

Relationships Risk Note: Denied contact with partner, however admitted they would like to be together. Discussed the conditions of the DV Order and the impact he is does breach the conditions."[69]

1. On 5 August 2020, the Applicant reported to QLD Corrective Services. Their note says:

"PHONE CALL: Mr Belmont telephoned the office unscheduled. He advised he was phone reporting. SCM informed him his next phone report is on 25 August 2020. SCM noted there was children screaming in the background and he admitted he was spending time with his children. SCM enquired on whether he was also with (aggrieved) to which he stated he was as he was spending time with his children. He then stated he was "being good". SCM reiterated the importance of complying with his DV Order and he again stated he was "being good".

It is noted the Order contains conditions that he not be within 100m of the aggrieved' s residence or approach the aggrieved unless it is for when having contact with a child as set out in writing between the parties. SCM did not canvas these conditions with Mr Belmont at the time of the contact as they did not wish to elevate his mood. It is not known whether he was at the aggrieved' s residence."[70]

1. A report from the Brisbane Domestic Violence Service dated 13 October 2020 states:

"On 31 August 2020, Mr Belmont attended his phone induction session of the program. Facilitators introduced the program and the expectations. Facilitators also went through the Participant Survey with Mr Belmont. When asked whether he agreed with the statement "My partner is equally at fault", Mr Belmont laughed and said he 'agreed'. This indicated to Facilitators the need to explore the use of minimisation/denial/blame with Mr Belmont throughout his time on program in order to assess his willingness to be accountable and take this necessary step for change.

Due to Covid-19, Mr Belmont then attended his first program session which was phone-based on Thursday 10 September. Mr Belmont then failed to attend the next two sessions in a row, with 24 September expected to be his first face-to-face group. Both of these absences were unapproved.

On 1 October 2020, Mr Belmont attended his first face-to-face group session. Facilitators observed Mr Belmont to laugh inappropriately when discussing the times he's made his partner feel unsafe. He disclosed how he uses the hakka to intimidate his partner and get what he wants. This indicated to Facilitators the possibility for Mr Belmont to be able to name some of his abusive behaviours, however he showed limited insight around the harm of his attitudes and behaviours.

On 7 October 2020, Mr Belmont's Referring Officer advised BDVS would need to be excluded from the program due to instability around accommodation and employment, impacting on his decision whether to commit to the program. BDVS are in agreeance that it remains a goal for Mr Belmont to recommence a program once he has gained stability, so that he can continue addressing his use of violence and take the necessary steps to change. BDVS are of the opinion that Mr Belmont does still hold beliefs that support abusive attitudes and behaviours, and would benefit from completing a DV Program."[71]

1. In relation to this he said that he was "in denial" at the time.
2. On 20 October 2020, the Applicant reported to QLD Corrective Services. Their note says:

"Accommodation Risk Note: Continues to remain transient due to not having his own accommodation. He stated he has been staying with friends at Mt Gravatt, as well as Beudesert. SCM questioned whether he has been staying with the aggrieved and he had initially stated no but then admitted he has occasionally.

Sourcing stable accommodation for Mr Belmont is a priority, however due to him not being a citizen he is not eligible for assistance, which makes it extremely hard for him especially as he does not have a regular income. Area to monitor.

Employment Risk Note: Advised he continues to work for the Carnival. He stated he is working up at Redcliffe and all over the place. SCM requested that he keep the agency up to date with his employment locations etc. He agreed.

Substance Abuse Risk Note: SCM immediately noticed that Mr Belmont presented with glazed eyes. He was questioned on whether he had been drinking and he disclosed he had not been drinking today, however he had a few drinks last night. SCM attempted to discuss his alcohol use and the frequency, however he became agitated with this line of questioning. SCM advised they were merely wanting to know if this is something he is using as a coping mechanism due to stress - he admitted he was using alcohol as a means to relieve any stress he was feeling. SCM encouraged him to think about decisions he makes whilst under the influence especially in relation to his relationship and driving his motor vehicle.

With regards to his compliance with the DV Order, he again reiterated he was aware of the conditions. He stated he always ensures he has written permission. He reported him and the aggrieved are in a good place at present."[72]

1. On 24 November 2020, the Applicant reported to QLD Corrective Services. Their note says:

"Accommodation Risk Note: Advised he continues to reside in his car or he stays at his employer's residence at Beaudesert. He admitted he continues to struggle with stable accommodation due to his employment being casual and him not having the means to fully support himself.

Employment Risk Note: Continues to work on the showgrounds. Reported he works approximately three days and will obtain $600 in case, however he may then not obtain any work for a further week. He stated he was looking for a second job and may have one cleaning trucks. Requested he keep SCM informed.

Relationships Risk Note: Discussed his relationship with his partner and children. He stated things are travelling well. He advised he has not been attending the residence as much due to the DVO. However, during the course of the interview he received a phone call from his partner. SCM could hear the conversation and it was clear she had attended with him as her and the children were waiting outside. He stated they were both taking their son to the dentist today.

He spoke about his partner receiving support from a DV service. SCM enquired whether he objected to this and he stated no and admitted there has been a change in their relationship. SCM questioned whether this was positive and he stated yes, and disclosed his partner is "less mouthy". SCM requested that he explain what he means by this. He stated she is not as argumentative. SCM asked whether this was due to a shift in her or him. He stated maybe both. SCM encouraged him to be mindful of the DVO conditions especially during this festive period.

Order Conditions Risk Note: No issues or concerns at present. Ongoing contact with his partner/aggrieved continues to be the main focus of interviews. Evident from today's meeting he continues to hold DV attitudes around his partner as reflected in his comment of she is "less mouthy".

Employment continues to be the main protective factor for him and one which is keeping him afloat in meeting some of his basic needs."[73]

1. On 27 July 2021, the Applicant contravened a Domestic Violence Order. He was taken into custody, where he remained until he was eligible for parole, on 23 January 2022.
2. Between 14 August 2020 and 9 June 2021, the Applicant committed 11 traffic offences. 9 of them were speeding offences.[74]
3. On 15 June 2021, Police records state:

"Charge 1 - Contravention of domestic violence order (aggravated offence)

At approximately 7:00am on the 15th day of June 2021, the defendant attended the aggrieved' s dwelling at (address), Greenslopes. This was an agreed visit to allow the defendant to take the children to school.

After allowing the defendant entry to the dwelling, the aggrieved locked the door using a key behind him, as the children were of an age they could readily operate locks.

Shortly thereafter, the defendant became angry at the aggrieved and started to yell words similar to, "Why'd ya lock fuckin' lock me in? What're you tryna do?" The aggrieved attempted to diffuse the situation by explaining she had locked the door to contain the children. The defendant has continued to yell, stating, "Give me the fucking keys!"

The aggrieved threw the keys in the defendant's direction, towards the kitchen but the defendant failed to catch the keys. The defendant has again told the aggrieved, "Give me the fucking keys!" The aggrieved replied, "I threw them to you."

Immediately thereafter the defendant has repeatedly struck the aggrieved in the ribs and stomach while continuing to yell, "Give me the fucking keys".

The defendant has ceased striking the aggrieved and moved to the back door of the dwelling and kicked the locked screen door open. The defendant has then decamped the address.

The aggrieved called 000 and police attended the dwelling shortly thereafter. As a result of this matter, a report as furnished, and the defendant was listed as wanted for questioning."[75]

1. In relation to this he said that he recalled this event. He agreed that he hit TR.[76] He told the Tribunal that he agreed with the summary.
2. On 16 June 2021, a TPO was made was made for the benefit of TR and their 3 children. The TPO was served on 21 June 2021.[77]
3. On 21 June 2021, Police records state:

"Charge 2 - Contravention of domestic violence order (aggravated offence)

At approximately 7:00am on the 21st day of June 2021, the aggrieved and defendant were present in the aggrieved' s dwelling at (address) with their 3 children. At this time, the aggrieved admitted to the defendant that following the incident, which occurred on the 15th day of June 2021, she called police. Following this admission, the defendant became angry and begun to verbally abuse the aggrieved, calling her a "dog", "slut" and "bitch". As part of this tirade, the defendant threatened to immolate the aggrieved and their 3 children, stating words similar to, "I'll burn the house down with you and the kids in it."

Following these threats, the aggrieved called 000 and police attended shortly thereafter. As a result, a report was furnished, and the defendant was listed as wanted for questioning."[78]

1. In relation to this he said that he did not remember, but that he would not have threatened to "burn my kids down". He accepted that he was intoxicated.[79] He told the Tribunal that he remembered calling TR names, but not threatening to burn the house.
2. On 27 July 2021, Police records state:

"Charge 3 - Contravention of domestic violence order (aggravated offence)

At approximately 7:30pm on the 27th day of July 2021, the aggrieved and defendant were in the aggrieved' s dwelling located at (address). Their 3 biological children were also within the unit and within earshot.

The aggrieved and respondent began to argue about their relationship and household issues. During this argument, the respondent has threatened to physically strike the aggrieved and damage the dwelling and property within. As a result, the aggrieved has called 000 and requested police to attend the address to remove the defendant.

Police attended the aggrieved' s dwelling shortly thereafter and knocked loudly and repeatedly on the front door whilst announcing themselves as police. Police received no response until they informed those present within that they would force entry if no one answered the door.

The aggrieved attended the front door and allowed police entry. Once inside, police asked who was within the dwelling and were told that it was only the aggrieved and her 3 children, as the respondent had left the address prior to their arrival. However, upon informing the aggrieved that police would be clearing the dwelling, the aggrieved told police that the respondent may still be there. Police called out for the respondent to make himself known and he exited a cupboard within the master bedroom.

Police took up with both parties separately. The defendant stated that there had been an argument between himself and the aggrieved but declined to elaborate further.

The defendant was given his rights and cautions and offered the chance to be interviewed in relation to these matters, which he declined.

Given the defendant's behaviour and his presence at the dwelling in contravention to condition 3 of the Temporary Protection Order, the defendant was arrested and conveyed to the Brisbane City Watchhouse where he was charged.

The defendant was denied bail and remanded in custody to appear before Brisbane Magistrates Court on 28th day of July 2021."[80]

1. He was taken into custody, where he remained until he was eligible for parole, on 23 January 2022. In relation to this he said to the AAT:

"MR WEST: Mr Belmont, the last of the incidents that I want to ask about is the one that ultimately resulted in you being arrested and taken back to prison?---Yes.

And that was on 27 July 2021. What do you recall about that?---Being drunk, having arguments with (TR), because I might say the kids were put down first. They all went to bed and then we started to verbally fight over money. More drink. Over stupid stuff. Then it got to that bad where she rang the authorities, and the authorities came and I tried to hide inside the cupboard and as they came I jumped out of the cupboard because I knew I would be going back to prison.

You said that you'd put the kids down or put them to bed. Something to that effect?---Yes.

But they were still within a distance that they would've been able to hear your argument. Is that right?---Yes and they would've been, yes. They were in a room with the door closed and so, yes.

And so they would've been able to hear you then, threaten to, it says here "physically strike", so threaten to punch or kick [TR]. Is that right?---Yes.

Each of those incidents in 2021 that we just went through Mr Belmont - at that time there was a no-contact part of the domestic violence order. Is that right? Yes, there was, yes?

So you weren't allowed to be within 100 metres of (TR)?---Of (TR).

And so it's fair to say that you would, apart from these incidents, you would see her quite regularly in breach of that order, wouldn't you?---There has been times, yes.

One other thing I saw in the material, Mr Belmont, was a reference to a time where you hit (TR) over the head with a frypan. Do you recall that?---No, I can't recall that.

So I'll just take you to page 46 of the tender bundle and right down the bottom of the page there the note records a significant history of DV between yourself and redacted including the incident where you've hit the person over the head with a frypan, so I suppose I should put it this way, Mr Belmont?---Yes.

Have you ever hit anyone over the head with a frypan?---No, I haven't hit anyone over the head."[81]

1. Shortly after this, the Applicant's 3 children were taken from TR by child protection services due to the history of family violence and her drug/alcohol abuse. The children were taken into foster care where they remained until Easter 2024.
2. On 23 September 2021, the Applicant appeared in the Brisbane Magistrates Court charged with a breach of the probation order made on 12 June 2021 and an aggravated offences of contravention of a Domestic Violence Order on 15 June, 21 June and 27 July 2021. He was resentenced for the 12 June 2021 offences and convicted of the aggravated charges. He was sentenced to 12 months imprisonment.[82] The sentencing remarks of Magistrate Crawford state:

"I take into account your pleas of guilty. I take into account your personal history that has been placed on the record by your solicitor. I take into account that you do have some mental health issues with depression, anxiety and panic attacks, and that you have found custody to be very difficult. Some of the difficulty in custody is related to overcrowding and COVID restrictions; some of it, no doubt, is exacerbated by your own personal response and mental health issues. I note that you do have employment and that that employment may be available to you on release from custody.

Nevertheless, the offending that comes before the Court today is very serious offending. This is - there are now five separate incidents where you have breached 15 domestic violence orders and have committed violence against your partner or ex partner. There are a number of circumstances that might explain some of that offending, and there is no doubt that some of the behaviour of the aggrieved in some of that offending was also very poor. Nevertheless, you were the respondent with respect to the domestic violence order and it was your responsibility to ensure that you did not breach that order. With respect to the violence that was perpetrated against the aggrieved, that violence also took place in front of your children. That is reprehensible behaviour. I do accept that you are remorseful for it and that that is reflected by your guilty plea.

You were to have engaged with a psychologist with respect to a mental health care plan. I understand that that did not happen because you were taken into custody and that you have been unable to link in with the prison mental health service, and that is likely because of the overcrowding and some of the other restrictions in prison. I am advised that you are a New Zealand citizen, and while the operation of the Migration Act seems to be a very, very harsh way to deal with people in this country, there is very little that I can do about that, and I have to punish you in a way, as I say, that is just in all the circumstances.

In my view, with respect to the charges that are before the Court today, for contravening a domestic violence order, which is an aggravated offence, each of them - one on the 15th of June 2021, one on the 21st of June 2021, and another on the 27th of July 2021 - you are convicted, a conviction - and you will be sentenced to a period of 12 months imprisonment. I order that a parole release date be fixed when you have served a period of four months imprisonment.

With respect to the breach of probation and the two domestic violence offences that were the offences that gave rise to that probation order, I find that breach proven, and you are re-sentenced with respect to those offences to three months imprisonment. Those - that penalty will be served concurrently with the 12 months that has been ordered to be served on the matters that you were to be sentenced for today. The presentence custody that you have served with be declared. That is a total of 58 days, so that is almost two months of the four months that you have been ordered to serve. Is there anything else?"[83]

1. The Applicant said that he last drank alcohol on the night that he was last arrested.[84]
2. In prison he started taking medication prescribed for anxiety and depression.[85]
3. On 9 November 2021, the visa was cancelled under s501(3A) of the Act.[86]
4. On 26 November 2021, the Applicant made representations seeking revocation of the visa cancellation.[87]
5. On 21 January 2022, the Applicant was released on parole and taken into Immigration Detention.[88]
6. On 23 January 2022, the Applicant became eligible for parole.[89]
7. On 24 July 2022, the Applicant applied to do a Maori language course.[90]
8. On 22 December 2022, Child Protection services in QLD wrote to advise that as from 25 January 2023, the Applicant's children would be placed in the care of his parents in WA.[91] This did not in fact happen.
9. On 27 February 2023, the Respondent decided not to revoke the visa cancellation.[92]
10. On 28 February 2023, the Applicant sought review of the Respondent's decision.
11. On 3 May 2023, the matter was heard by Senior Member Tavoularis in the AAT.[93]
12. On 22 May 2023, the AAT affirmed the Respondent's decision (the AAT decision).[94]
13. At Easter time 2024, the Applicant's children were returned to TR's custody by QLD Child Protection authorities.
14. On 21 June 2024, the Applicant obtained an order from Horan J of the Federal Court, quashing the AAT decision and remitting the matter for determination according to law.[95]
15. On 8 September 2024, TR provided a letter in support of the Applicant which states:

"Myself and John started dating early 2016 we met in Perth Western Australia while both in times of crisis (eg, Homeless and active addiction)

We moved to Queensland together in February 2017 to start a life together with a fresh start but unfortunately our addiction followed.

We both have worked hard on our addictions and tried our very best to be a normal couple. Unfortunately in active addiction it takes two to tango and I may have over exaggerated a few of the incidents which led to John Belmont being incarcerated and now in deportation. All the charges on his sheet have come from being in active addiction.

I myself have completed rehab and have worked on my own character defects. Once John was taken away from our little family so we're our 3 beautiful children who I have just got back in my care at Easter.

I am writing this email to let you know I do forgive John Belmont and I am deeply sorry for the pain and heartache I have caused him and our children.

My understanding is he is currently facing deportation. He really doesn't deserve to be deported.

He was a hardworking man and paid taxes and helped keep our household working. He is an incredible father who speaks to our children upon request. Our children miss him dearly as do I.

It would be an absolute heartbreak for him to be deported away from his 3 young children who speak to him once a week if not more and have an incredible relationship with him. I honestly believe he deserves to be able to stay in Queensland so he can be there for his children and maybe one day rekindle what we have lost."[96]

1. The Applicant was asked about this statement. He said that TR is now a "good mother" and that she has "rehabilitated herself". He only wants what is best for his children.
2. On 16 December 2024, Dr Kwok, a psychologist prepared a report. This relevantly states:

"19. In 2012, Mr Belmont reportedly returned to Australia and lived in Western Australia to be closer to his family. He stated that he worked as a subcontractor at the mines for a few years. He explained that he lost his employment due to alcohol use and behavioural problems. More specifically, he stated that he had an argument with a colleague which involved screaming but no physical aggression.

20. Mr Belmont said he was unemployment for about two years in 2016 and 2017 before he and his then partner moved to Brisbane. In Brisbane, he reportedly gained employment as a warehouse manager. Mr Belmont stated that he also worked at showgrounds, but he left that job to return to the warehouse during the pandemic. Mr Belmont said he was employed before he went to prison in 2021.

21. Substance use history. Mr Belmont reported that he began using alcohol when he was sixteen years old and it started with "just a couple of cans here and there." He said he drank beer at home after "a hard day's work" and he also went to the pub. He stated that he later began to drink spirts, but he believed his drinking was "quite moderate" at the time he came to Australia when he was around twenty-one years old.

22. Mr Belmont acknowledged that his use of alcohol increased after he moved to Australia. However, he claimed he was not drinking to an extent where he could not function. He said he used to drink at the park when COVID restrictions were easing and he hid from the police. Mr Belmont claimed his drinking was "not out of control all the time" but he drank more on weekends. He acknowledged that he could drink excessively on occasions. He said he was using alcohol heavily and "it was getting out of control" before he went to prison. He stated that he drank beer, spirits, and other alcoholic beverages.

23. Mr Belmont stated that he started using marijuana when he was around eighteen years old and he used "about a couple of joints one weekend of a month." This reportedly continued for about three years. He claimed he only used marijuana when he was between eighteen and twenty-one years old.

24. Mr Belmont reportedly started using amphetamines when he was eighteen years old and he used the drug on weekends. He indicated that he could not use drugs daily, because his workplace conducted drug tests. Mr Belmont reportedly used amphetamines regularly when he was living in Ireland.

25. After arriving in Australia when he was twenty-one years old, Mr Belmont reported he tried ecstasy "three or four times" and cocaine "twice." He stated that he began using crystal methamphetamine ('ice') intermittently when he began working at the mines in 2011. He said his drug use worsened when he was working at the mines, because he associated with other drug users. Before he was incarcerated, he was reportedly using ice "a couple of grams a month if the money was there." Mr Belmont claimed that last time he used any type of illicit drug was before his incarceration.

26. Mr Belmont acknowledged that he used illicit drugs and alcohol as a coping mechanism. He said he used to be "depressed and anxious" and that ice and alcohol "put me in a different world." He acknowledged that his substance use had affected his relationships and, on occasions, resulted in arguments and aggression.

27. Mr Belmont stated that he previously attended treatment for alcohol dependence through parole. At the time, he said he "got fed up" with treatment because his living condition was poor and he was sleeping in the car while trying to maintain his employment.

28. Mr Belmont reported that it was difficult to access treatment in prison. He said he "did some self-help through reading the Bible."

29. In immigration detention, Mr Belmont reportedly completed various drug and alcohol counselling and courses. In a letter dated 12 April 2022, the counsellor from Lives Lived Well indicated that Mr Belmont began engaging with the service in February 2022 and he sought support for substance use. He reportedly attended three individual telephone counselling appointments between February and March 2022, and had another appointment scheduled.

30. In a letter provided by Drug ARM dated 25 August 2023, it was noted that Mr Belmont attended counselling sessions on 16 June 2023, 23 June 2023, 30 June 2023, 7 July 2023, 14 July 2023, 21 July 2023, 28 July 2023, 4 August 2023, 11 August 2023 and 25 August 2023. The Drug ARM Discharge Plan Form dated 25 August 2023 noted that the sessions addressed topics such as emotion regulation, tolerance, coping strategies, awareness, self-care, and understanding trauma.

31. Mr Belmont further reported that he attends SMART Recovery groups in detention.

32. Physical health history. Dr Inga's letter dated 20 June 2023 indicates that Mr Belmont was prescribed medication to improve blood pressure/cholesterol levels and blood glucose control. According to the IHMS records dated 22 August 2023, Mr Belmont underwent vascular surgery to remove left leg varicosity.

33. Mental health history., Mr Belmont did not report any significant psychological issues apart from "maybe a bit of depression" prior to being in prison. He reported no history of self-harm or suicide. He reported no history of psychosis.

34. Mr Belmont stated that he experienced "a bit of depression" and "anxiety" after he lost his employment during the pandemic in 2019/2020 and his treating doctor reportedly prescribed an antidepressant. He did not see a psychologist at the time.

35. Mr Belmont stated that he experienced "trauma" after "losing everything with my three children" when he went to prison in 2021. He claimed he witnessed traumatic incidents in prison including seeing an inmate "have his neck broken" during an attack and "being left to die." He said he was interacting with this inmate on the day before the inmate was attacked. Mr Belmont reported he administered first aid to the inmate and the incident continues to affect him. He said, "It brings me sadness, I get flashbacks at some point." In addition, Mr Belmont claimed he saved a correctional officer who had a seizure in prison and he was "congratulated for this."[97]

1. Dr Kwok told the Tribunal that the Applicant was a low risk of "general offending". That means offending other than Family Violence. She was concerned that an ongoing partner relationship with TR would be an issue. It would constitute a significant risk factor for the Applicant. Any contact with his children should be through a 3rd party intermediary, not TR. She agreed that it would be in the best interests of the children that the Applicant goes to Perth, as he plans to do, if his visa cancellation is revoked. It would be a bad idea for TR to follow him there. He should only have supervised child contact, dependant on the opinion of an appropriately qualified adviser. Maybe, later on, unsupervised contact would be ok. He would need treatment in the community for at least 6 months. He should avoid contact with people who consume alcohol. If all of these factors are attended to, he may be a low risk of reoffending in the community. His potential stressors include parenting issues, unemployment and exposure to drugs or alcohol.
2. The Applicant's parents, his brother's family and his sister and her family now live in Perth.[98]
3. The Applicant says that he is no longer in a relationship with TR. Their relationship ended after he last assaulted her. They have had occasional contact regarding the arrangements for the children.[99]
4. The evidence from the Applicant and TR at the hearing was that they both still have strong feelings for each other, and that some reconciliation may be possible in the future. The Applicant is presently prevented from having personal contact with TR by an AVO. TR told the Tribunal that she is thinking about applying to have this order removed. Having regard to Dr Kwok's evidence and their history, this would be an eventuality that may elevate the Applicant's risk of repeating his past behaviours, including family violence and substance abuse.
5. The Applicant has been able to have contact with his children under conditions supervised by child protection authorities.[100] If he were to return to the community, Dr Kwok's recommendations set out above should be observed. If this were not to happen, there may be a risk of harm to the children.
6. He has a number of cousins and other relatives in New Zealand. He is close to some of them. They are in occasional contact. They meet up on family occasions like funerals.[101] He does not have any close family left there now that his brother has recently moved to Perth.
7. The Applicant has not kept up contact with friends. A lot of them are dead or in gaol.[102]
8. If the Applicant were to be released into the community, he plans to return to Perth to be with his family. They are happy for him to live with them. They are happy to support him and to keep an eye on his conduct. They would help him to get work. They do not approve of drugs, but they occasionally use alcohol. There is no clear plan as to how they would deal with him if he started to relapse. They said that they would not "kick him out onto the street" and they would try to get appropriate help for him. This is potentially an important protective factor.
9. He did have a job offer as a storeman in June 2021, but it is in Brisbane, and it is unclear if that job would still be on offer.[103] For the reasons already discussed, it would be unwise for the Applicant to remain in Brisbane. That is in any event, not his current plan.
10. The Applicant has completed various courses since his incarceration. Some of these appear to be relevant to his history of drug and alcohol abuse and family violence.[104]
11. The Applicant has letters of support from his parents,[105] his aunt,[106] his case manager at "Lives Lived Well",[107] and an employer.[108]
12. The Applicant has an extensive criminal history, commencing 17 November 2015. A copy of his record of convictions is annexed hereto and marked "B".[109]

1. The Applicant was sentenced to a term of 12 months imprisonment on 29 September 2021.[110]
2. The Tribunal finds that the Applicant has a "substantial criminal record" and, therefore, he does not pass the character test. This is not disputed by the Applicant. The Tribunal must consider whether "there is another reason why the original decision should be revoked".

Is there another reason why the original decision should be revoked under section 501CA(4)?

1. In considering whether to the original decision should be revoked, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA ("the Direction") has application.[111]
2. For the purposes of deciding whether to refuse or cancel a non-citizen's visa or whether or not to revoke the mandatory cancellation of a non-citizen's visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker's application of the considerations identified in Part 2 where relevant to the decision.
3. The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2) The safety of the Australian Community is the highest priority of the Australian Government.

(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. 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.

(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.

(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

1. Paragraph 6 of the Direction provides that:

Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

1. Paragraph 7(2) of the Direction requires that protection of the Australian community (Primary Consideration 8.1), is generally to be given greater weight than other primary considerations.
2. Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:

(1) protection of the Australian community from criminal or other serious conduct;

(2) whether the conduct engaged in constituted family violence;

(3) the strength, nature and duration of ties to Australia:

(4) the best interests of minor children in Australia; and

(5) expectations of the Australian community.

1. Paragraph 9 of the Direction sets out three Other Considerations which must be taken into account. These considerations are:

a) Legal consequence of the decision; > > b) extent of impediments if removed; > > c) impact on Australian business interests

2. I note the importance of the Other Considerations being "other" considerations, as opposed to "secondary" considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[112]

"...Direction 65 [now Direction 110] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply."[113]

1. The Applicant's criminal record as produced by the Australian Criminal Intelligence Commission is outlined at Annexure B.

Primary Consideration 1 - Protection of The Australian Community

1. In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
2. In determining the weight applicable to Primary Consideration 1, 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

1. 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. I will now turn to addressing these considerations.
2. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent and/or sexual nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
3. The Applicant has engaged in serious acts of family violence as detailed above. He has offended when released on probation for earlier offences. He has offended in front of his own young children.
4. 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 described below are considered by the Australian Government and the Australian community to be serious:

(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed; > > (ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties; > > (iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c)); > > (iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.

5. The Applicant has obstructed and threatened a police officer in the course of his duty.
6. His general conduct has been such that he does not pass the character test.
7. The Applicant also has a significant history of traffic offences, including offences involving excessive speed. This conduct is inherently dangerous to other road users.[114]
8. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of the crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) to have regard 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.
9. The Applicant has served 2 terms of imprisonment. He reoffended when released on probation for the offending, for which he was first imprisoned.
10. Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the impact of the offending on any victims offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;
11. The Applicant's offending had a serious impact on his then partner TR and their children. The offending in front of his children was particularly serious.
12. The Applicant's offending contributed to the intervention of child protection authorities and the placement of his children in foster care for over 2 years. This must have been very traumatic for the children.
13. Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the frequency of a non-citizen's offending and whether there is any trend of increasing seriousness.
14. The Applicant has been in trouble with the law almost continuously since 2015. The nature and seriousness of his offending escalated from minor drug related offences to serious family violence offences over a period of the next 5-6 years.
15. Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to the cumulative effect of an Applicant's repeated offending.
16. The cumulative effect of the Applicant's offending has been very serious. He has consumed community resources in the criminal justice system.
17. His young children were taken into the care of child protection services and foster homes for over 2 years.
18. Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
19. The Applicant made a false declaration on an entry document as set out above.
20. Sub-paragraph (h) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard to 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 (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
21. There is no evidence of this.
22. Sub-paragraph (i) of paragraph 8.1.1(1) of the Direction requires a decision-maker to have regard, where the offence or conduct was committed in another country, to whether that offence or conduct is classified as an offence in Australia.
23. There is no evidence of this.
24. I do not consider factors (h) and (i) of paragraph 8.1.1(1) of the Direction apply to the Applicant's offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant's visa.

The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

1. Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
2. Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; > > b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

(i) information and evidence on the risk of the non-citizen re-offending; and > > (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and > > 1. 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.

3. Nature of harm should the Applicant engage in further criminal or other serious conduct
4. Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in his offending. This assessment also notes that the Direction provides that the Australian community's tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable (Paragraph 8.1.2(1)).
5. The Direction makes it clear that family violence is to be taken very seriously. Any repetition of the Applicant's family violence behaviour would be unacceptable.
6. His offending to date has been very serious and it was escalating at the time of his most recent arrest and imprisonment.
7. The harm that might be caused to TR, the Applicant's children or indeed any future intimate partner that he may have, is very serious.
8. The Applicant's driving record, if repeated, may also expose innocent road to the risk of serious injury or death.

Likelihood of engaging in further criminal or other serious conduct

1. The Applicant says that if he is released back into our community, he will return to Perth and live with his parents.
2. He says that they would not tolerate him using illegal drugs in the house.[115]
3. If he resumed using, he may find that he loses his family support.
4. Excessive alcohol use would also cause him problems with his family.[116]
5. The Applicant's family do not however, have a prohibition on alcohol. This is a moderate risk factor. It is unsafe for the Applicant to consume any alcohol.
6. In the Applicant's case, history has shown that any use of alcohol quickly descends in to excess and abuse.
7. The Applicant may seek work in the mining industry.[117] This was the industry in which he was first introduced to methamphetamines. It involves extended periods away from home at work sites. This is also a risk factor.
8. The Applicant accepts that overcoming his drug and alcohol addictions is still a "work in progress".[118]
9. The Applicant agrees that he needs ongoing clinical support to manage his addictions.[119] It may be difficult to manage the necessary clinical support if he is doing fly-in, fly-out work.
10. The Applicant claims to have rediscovered religious faith since his imprisonment.[120]
11. The Applicant has done many courses since his incarceration in July 2021. Some of these have been relevant to his offending behaviours. He claims to now have insight into his past conduct and to be motivated to turn over a new leaf. He has not however, been tested in an uncontrolled environment, where he would have to manage the inevitable stressors of life. In the past, these have led to him abusing alcohol, or other drugs.
12. In my view, the Applicant, if entirely left unsupported, presents at least a moderate risk of reoffending. Given the seriousness of his offending, even a low risk of reoffending would be unacceptable. He has previously reoffended when on probation.
13. The Applicant has responded to life stresses in the past by abusing alcohol and drugs. I am not satisfied that he has demonstrated that he now has appropriate coping mechanisms. Any non-compliance with ongoing treatment would increase his risk of offending.
14. If he were to resume drinking or using drugs, that risk would increase significantly.
15. The Applicant has demonstrated limited insight into the impact of his offending.[121]
16. The Applicant's recent engagement with rehabilitation services has not yet been demonstrated to have brought about a fundamental change in his attitudes. This also remains tested in a community.
17. One significant factor potentially working in the Applicant's favour, is the fact that all his close family members are now living in Perth. He would live in a large house with 3 generations of his family. I accept that they are all genuine in their commitment to support the Applicant to remain sober and engaged with appropriate treatment in the community.
18. A second significant factor is that the Applicant is not now in a relationship with TR and that he intends to live in Perth, not Brisbane.
19. I accept that if the Applicant does what he has told the Tribunal that he will do, by moving to Perth and relying on the support of his family, his risk of reoffending may be reduced to tolerable levels.
20. The Tribunal does not have the power to grant a conditional visa or to direct the Applicant to do as he has promised to do. If the Applicant's visa were to be returned, the choice is entirely his.
21. Taking the Applicant at his word, this Primary Consideration still weighs against the Applicant.
22. However, it weighs less heavily than would be the case, if his plan involved any option other than going to live with his family in Perth. Specifically, living in Brisbane and/or rekindling the relationship with TR would unacceptably elevate the risk of him reoffending.

1. Primary consideration number one weighs against revocation of the Applicant's visa cancellation.

(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

(2) This consideration is relevant in circumstances where:

a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

(3) In considering the seriousness of the family violence engaged in by the non- citizen, 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:

1. the extent to which the person accepts responsibility for their family violence related conduct;

2. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

3. efforts to address factors which contributed to their conduct; and

d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non- citizen's migration status, should the non-citizen engage in further acts of family violence.

1. The Applicant's history of family violence is set out in detail above and is discussed in the context of Primary Consideration 1.
2. The Applicant's conduct has been very serious. It continued even after he was released from prison on probation.
3. It is unclear whether he has insight into the effects of his offending.
4. In the past, he has sought to shift blame for his conduct, although more recently, he seems to have accepted responsibility.
5. I am not satisfied that he has yet successfully engaged with any appropriate rehabilitation programme. This may however, be addressed by community-based treatment, if he were to be released.
6. The Applicant is prevented by an AVO from being in personal contact with TR. So long as this order remains current, it offers some comfort, although he has a history of breaching orders. It would be unwise for him to seek to vary it.
7. The Fact that he plans to go to Perth, not Brisbane, is a positive step.

1. This consideration weighs against revocation of the cancellation of the Applicant's visa.

1. Paragraph 8.3 of the Direction provides:
2. (1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
3. (2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
   1. a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
      1. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
      2. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
   2. b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
4. The Applicant has lived in Australia continuously since May 2011.[122] He was an adult in his mid-30's at that time. None of his formative years were spent here.
5. The Applicant began low level drug offending in 2015.[123]
6. Since then, he has been involved in various unlawful activities as set out in detail above. The trend of his offending has become more serious over time.
7. The Applicant has made some positive contribution through his employment.
8. The Applicant's parents live in Perth. They have been there since 2021.[124]
9. His brother and his brother's family, live there too. He moved to Perth from New Zealand in 2024. He has worked as a corrections officer and is seeking similar employment in Perth. They are very supportive of the Applicant.
10. The Applicant staying with his parents comes with a condition that he does not have illegal drugs in the house.[125]
11. This is a double-edged sword. If the Applicant remains drug free, he will have family support. If he does not, he may be required to leave.
12. The Applicant has 3 children living in Brisbane with TR. The Applicant has had little to do with them since he was arrested in July 2021. The detail of this relationship is discussed in the context of Primary Consideration 3. I refer to that discussion.
13. The Applicant's relationship with TR is important to both of them. This is, however, potentially a big problem. If they were to rekindle their relationship, the risk of family violence and negative outcomes for all concerned, including his children, would escalate.
14. The Applicant's sister and her family also live in Perth. She has been there since 2008.[126]
15. The Applicant has an aunt in Australia.[127]
16. The Applicant has a cousin in Australia.[128]
17. I accept that the Applicant's friends, TR, children and family in Australia would be distressed if he were to be returned to New Zealand.[129]
18. They could, however, remain in contact with him electronically as they have mainly done since his most recent arrest and imprisonment in 2021.
19. They could visit him in New Zealand.

1. This consideration weighs in favour of revocation of the cancellation of the Applicant's visa.

Primary Consideration 4: The best interests of minor children in Australia

1. Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. 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 refuse or cancel the visa or not to revoke the mandatory cancellation decision is being 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.
2. Paragraph 8.4(4) of the Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

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.

3. The Applicant has 3 minor biological children in Australia.[130] These are Child A, a son aged 7, Child B a daughter aged 5 and Child C, a daughter aged 3.
4. TR's sister has a son, Child D. [131]
5. The Applicant's sister RB, also has a son, Child E, who is 6 months old.
6. The Applicant's brother has two children, Child F, aged 13 and Child G, aged 10.
7. Child F and Child G lived in New Zealand until late 2024. Their relationship with the Applicant has been essentially limited to electronic contact when their father has been speaking with the Applicant. In terms of their experience, the Applicant moving to New Zealand would be of little practical consequence to their current arrangements, but it would limit their opportunity to connect on a personal level with their uncle, in the future. Provided that he does not relapse into substance abuse, the absence of this opportunity would be detrimental to them.
8. Child E is only an infant. In terms of his experience, the Applicant moving to New Zealand would be of little practical consequence to his current arrangements, but it would limit his opportunity to connect on a personal level his uncle, in the future. Provided that the Applicant does not relapse into substance abuse, the absence of this opportunity would be detrimental to Child E.
9. Child D has only had limited historical contact with the Applicant. That ceased when the Applicant was most recently imprisoned in 2021. Child D's connection to the Applicant is through TR. That relationship is itself complicated. Child D lives in QLD. The Applicant intends to live in Perth. I give minimal weight to this relationship.
10. The Applicant was arrested in July 2021. At least since that time, there has been a very limited relationship with his children. He has not, at least since July 2021, been a primary carer for his children. Given their ages, they have therefore had very limited exposure to him. Child C has had no meaningful contact with him.
11. Child A and Child B have been exposed to the Applicant's family violence.[132]
12. Child A has some behavioural issues and has been suspended from school.
13. There is a DVO in place until 28 July 2028. This does not permit him to be within 100 meters of TR, except in particular circumstances.[133] To the extent that the children may be in TR's care and custody, this limits the extent to which the Applicant may engage with them. TR and the Applicant spoke of possibly seeking to vary this order. I refer also to the comments above regarding Dr Kwok's recommendations about supervised access. The road back for the Applicant in reestablishing his relationship with his children will be long and complicated. If he resumes substance abuse, he would be likely to add to the damage that he has already caused to his children.
14. The Applicant's 3 children were in foster care in Brisbane. They were removed due to TR's alcohol abuse and incapacity to care for them.[134]
15. For a period, the Applicant's 3 children were in 3 different homes, but they have since managed to be all together. They were removed from TR's custody by child protection authorities after the Applicant was imprisoned.[135]
16. Since Easter 2024 they have been returned to TR. So far, but for one relapse at Christmas time, TR has managed to stay away from drugs and alcohol. Hopefully TR remains drug and alcohol free. If she relapses, the child protection authorities would become involved again.
17. If the Applicant and TR were to rekindle their relationship this may be a significant risk for the children.
18. If the Applicant were to have his visa returned, he plans to move to Perth where he can be supported by his parents and other family.[136]
19. This would mean that he would only have the ability to regularly interact with his children electronically.
20. They could visit him, but this would be challenging from a cost and travel supervision perspective. He could visit Brisbane, but this has its own risks with him being away from his family and the potential to breach the AVO protecting TR.
21. His future prospect of being reunited with his children is unknown. He says that he is committed to being a better father to his children.[137]
22. The Applicant can continue to contact the children electronically from New Zealand, much in the same way that he has been able to, since his incarceration in July 2021. They could visit him there.
23. If the Applicant were to resume alcohol or substance abuse, it may be in the best interests of the children that he is returned to New Zealand.

1. Having regard to all of the above, and assuming in his favour, that the Applicant does not resume substance abuse, primary consideration 4 weighs slightly in favour of revocation of the Applicant's visa cancellation.

Primary Consideration 5 - The Expectations of The Australian Community

1. In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
2. Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

(a) acts of family violence; or

(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

(f) worker exploitation.

1. Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
2. Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.

3. Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant's circumstances or evidence about those expectations. The Tribunal is to be guided by the Government's views as to the expectations of the Australian community, which are to be found in the Direction.[138]

1. Paragraph 8.5 contains a statement of the Government's views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.

Analysis - Allocation of Weight to Primary Consideration 5

1. Accordingly, in assessing the weight attributable to Primary Consideration 5, it is necessary to have regard to the following matters:
   1. the Applicant's criminal record as set out in Annexure B
   2. the other matters set out in detail above

1. Primary consideration 5 weighs against revocation of the cancellation of the Applicant's visa.

1. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction.

1. No claim is made by the Applicant that he is owed any non-refoulment obligations.
2. The Applicant's counsel referred to the Applicant's permanent exclusion from Australia, in the event of an unfavourable outcome, as a legal consequence of the decision.
3. This is the clear intention of the legislation. He would share this consequence with all other unsuccessful applicants in simar proceedings.
4. I note the submission, but I give it no weight.
5. No other legal consequences are raised.[139]
6. This Other Consideration (a) is neutral.

1. Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

(a) the non-citizen's age and health; > > (b) whether there are any substantial language or cultural barriers; and > > (c) any social, medical and/or economic support available to that non-citizen in that country.

2. The Applicant is in his mid-40's.
3. He has a reported history of anxiety and depression. This may require medical attention in the future. He has also reported blood pressure and cholesterol problems.
4. I refer to the detailed report of Dr Kwok regarding the Applicant's physical health, mental health and addiction problems.[140]
5. He has an established history of drug and alcohol abuse. This will require ongoing care and support from appropriate professional services.
6. To the extent that support for his mental health and addictions is required, the provision of such services in New Zealand, is broadly comparable to those support services in Australia.
7. There is no evidence to suggest that the Applicant would be unable to access the same social, medical and/or economic support services as are available to any other citizen of New Zealand.
8. There are no significant language or cultural barriers. The Applicant spent his formative years in New Zealand.
9. The Applicant has relatives in New Zealand, though his immediate family are in Australia.[141]
10. I accept that the Applicant would experience some challenges in readjusting to life in New Zealand, after being absent for over a decade. He would for example, need to find accommodation, employment and appropriate support services. However, these challenges would in many respects be the same as those that would face him, if he were to be returned to the Australian community, after having been imprisoned and then detained since July 2021.
11. This consideration (b) weighs in favour of revocation.

1. There was no evidence on this topic.
2. This Other Consideration (d) is neutral.

1. It is necessary to weigh up all of the primary and other considerations.
2. Primary consideration 1 weighs against revocation.
3. Primary consideration 2 weighs against revocation.
4. Primary consideration 3 weighs in favour of revocation.
5. Primary consideration 4 weighs slightly in favour revocation.
6. Primary consideration 5 weighs against revocation
7. Other consideration (a) is neutral.
8. Other consideration (b) weighs favour of revocation.
9. Other consideration (c) is neutral.[142]
10. I note that paragraph 7(2) of the Direction requires that protection of the Australian community is generally to be given greater weight than other Primary Considerations, and that Primary Considerations should generally be given greater weight than the Other Considerations.
11. The principles in paragraph 5.2 of the Direction relevantly state that:

(9) "Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.

(10) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community."

1. It is necessary to weigh up all of the primary and other considerations.
2. Primary Considerations 1, 2 and 5 weigh against revocation as discussed above.
3. Family violence is a particularly serious consideration, when the Direction is read as a whole.
4. In this case the family violence was serious and repeated. Protection Orders and conditional liberty were not sufficient to deter the Applicant from ongoing offending. The fact that the Applicant is not presently intending to be with TR does not alter his demonstrated capacity to commit acts of family violence against an intimate partner. A future partner may also be at risk.
5. On the other hand, some important things have changed since the Applicant was last at liberty.

(a) He has abstained from drugs and alcohol, albeit in a controlled environment. He is now a recovering alcoholic/ addict.

(b) He has completed many courses relevant to his past addictions and family violence.

(c) He has taken responsibility for his past actions.

(d) He plans to move to Perth if he is released. He would live with his family. This is an option that was not previously available to him. This would be a supportive environment.

(e) He says that he intends to seek employment and to continue with appropriate community-based treatment and support.

(f) He is not presently intending to resume living with TR and his children.

1. If the Applicant does all that he says he intends to do, I accept that he probably would present only a minor risk of reoffending.
2. The Tribunal does not have the power to grant a conditional visa, or to impose parole like conditions.
3. There is obviously a risk that the Applicant will not do what he has told the Tribunal he intends to do.
4. There are two major risk factors here. They are not mutually exclusive. Each would substantially increase the Applicant's risk of reoffending. A combination of both, would raise the risk of the Applicant reoffending, to the point of being a probability. The first of these factors is if the Applicant were to resume using alcohol and /drugs. The second is if he were to move to back Brisbane and/or re-establish his relationship with TR.
5. The Tribunal is therefore in the difficult position of having to anticipate what the Applicant will do, having no way to monitor or manage his conduct. One path would present a low risk to the community. The other would be high. This is a very difficult assessment. In this case, it is critical to the Tribunal's ultimate determination.
6. On balance, I have come to the view that the Applicant has a genuine intention to continue to seek appropriate support and assistance. His family are very supportive. He appears to have accepted the error of his ways. He is strongly incentivised to be available to be a positive father figure for his 3 children. His stated plan to move to Perth and live with his family, offers his only rational path forward.
7. Most importantly perhaps, I think that he has realised that if he were to ever reoffend, he would be highly likely return to prison. His prospects of remaining in Australia would in those circumstances, be minimal. All that he has worked to achieve for the past few years since his imprisonment, would have been entirely futile.
8. Primary Consideration 3, 4 and Other Consideration (b) weigh in favour of revocation.
9. The balance in this case falls very slightly in favour of revocation. In coming to this view, I have assumed in the Applicant's favour, that he will not return to substance abuse and that he will remain in Perth, away from TR, if returned to the community.
10. The decisive factor here is the obvious support that he has from his close family in Perth. If the Applicant's plan was to do anything other than to keep away from TR and to stay in Perth with his family, I would certainly have come to the view that the decision under review should be affirmed.
11. In my view, by the slightest of margins, it is appropriate for the foregoing reasons to revoke the cancellation of the Applicant's Visa.
12. I find that there is "another reason" pursuant to s501CA(4)(b)(ii) to revoke the original decision.

1. The decision under review is set aside and substituted with a decision that the cancellation of the Applicant's visa is revoked.

I certify that the preceding two hundred and eighty-nine (289) paragraphs are a true copy of the reasons for the decision herein of Senior Member Hon J Rau SC.

...........................[SGND].............................

Statement of Facts, Issues and Contentions (04.09.2024)

Statement of Facts, Issues and Contentions (18.11.2024)

Remitted Statement of Facts, Issues and Contentions (13.01.2025)

• 5.1. Letter of attendance from Drug.ARM (25.08.2023)
• 5.2. Discharge Plan Form from Drug.ARM (25.08.2023)

• 6.1. Statement of RB (Applicant's sister)
• 6.2. Statement of WB (03.08.2024) (Applicant's brother)
• 6.3. Statement of TR (Applicant's former partner)

Letter of Support from Applicant's Parents (30.08.2024)

Letter of attendance from Men's Information & Support Association (12.09.2024)

CONTRAVENTION OF DOMESTIC VIOLENCE ORDER (ON 09/04/2020)

CONTRAVENTION OF DOMESTIC VIOLENCE ORDER (ON 25/02/2020)

FAILURE TO APPEAR IN ACCORDANCE WITH UNDERTAKING (ON 26/03/2020)

COMMIT PUBLIC NUISANCE LICENSED PREMISES OR IN THE VICINITY OF LICENSED PREMISES (ON 24/02/2017)

[1] Exhibit 4: Remittal Bundle (G3), 10-26.

[3] Exhibit 9: Psychological Report from Dr E. Kwok.

[4] Exhibit 4: Remittal Bundle (G11), 55.

[23] Exhibit 4: Remittal Bundle (G8), 44.

[32] Exhibit 4: Remittal Bundle, 48, 673.

[97] Exhibit 9: Psychological Report from Dr E. Kwok.

[98] Exhibit 4: Remittal Bundle (G8), 47, 662-3.

[104] For example, see Remittal Bundle 53, 54, 61-70, 493-525.

[111] On 21 June 2024, the former applicable direction, Direction No. 99 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 110.

[112] [2018] FCA 594.

[121] For example, see: Remittal Bundle 46, 205,248,259, 278-9.

[138] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.

[139] See Rana v Minister for Immigration, Citizenship and Multicultural Affairs (2023) AATA 1327, 209.

[140] Exhibit 9: Psychological Report of Dr E. Kwok.