1. The circumstances of the Applicant's Index Offending are as follows:
   • On the evening of 1 December 2022, the Applicant and the victim (being the Applicant's partner at the time) had been drinking at home when they had an argument;
   • During the argument, the victim fell onto the ground. The Applicant then sat on the victim with his legs straddled around her pelvic area. The Applicant placed both of his hands around the victim's throat and squeezed for approximately 10 seconds, causing pressure in the victim's head, shortened breath, and pain;
   • The victim struggled to free herself, said, 'get the f--- off me' and managed to get up once the Applicant had removed his hands from her neck. The argument continued and the Applicant pushed the victim around and into the study table, causing a piece of timber on the bottom of the desk to snap and other items around the house to fall. The victim pushed the Applicant back to defend herself;
   • The victim's mother came into the room and told them to stop yelling. The Applicant went and sat outside the house;
   • Police arrived after being called by a member of the community and spoke to the victim. The police took photographs of bruises on the victim's neck and body that she had sustained throughout the argument; and
   • The following day, the victim reported discomfort when she swallowed and that she had pain in her throat and neck: HB 77.

1. The issues for consideration by the Tribunal are:

(a) whether the Applicant passes the 'character test,' as defined in s 501(6) of the Migration Act; and > > (b) if not, whether there is 'another reason' why the Visa Cancellation Decision should be revoked under s 501CA(4) of the Migration Act, having regard to the considerations prescribed by Direction No 110 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 110).

1. Section 501CA of the Migration Act relevantly provides:

(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(4) The Minister may revoke the original decision if:

(a) the person makes representations in accordance with the invitation; and

(i) that the person passes the character test (as defined by section 501); or

(ii) that there is another reason why the original decision should be revoked.

1. The 'character test' is defined in s 501(6) of the Migration Act. Relevantly, a person will not pass the character test if they have a 'substantial criminal record': s 501(6)(a) of the Migration Act.
2. The phrase 'substantial criminal record' is defined in s 501(7) of the Act and includes circumstances where a person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c) of the Migration Act.
3. Pursuant to s 501(3A)(a)(i) and (b) of the Migration Act, the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the 'character test', because they have a 'substantial criminal record', as defined in s 501(7)(c) of the Migration Act, and is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State, or a Territory. That is, failure of the 'character test,' in s 501(6) of the Migration Act, arises as a matter of law.[2]

1. When a visa is mandatorily cancelled under s 501(3A) of the Migration Act, the Minister must:

(i) give the person concerned written notice of the decision which sets out the original decision: s 501CA(3)(a)(i) of the Migration Act; > > (ii) give the person concerned particulars of the relevant information: s 501CA(3)(a)(ii) of the Migration Act; and > > (iii) invite the person to make representations to the Minister regarding the revocation of the original decision: s 501CA(3)(b) of the Migration Act.

2. Under s 501CA(4) of the Migration Act, the Minister may revoke the original (visa cancellation) decision if:

(a) representations have been made by the applicant in accordance with an invitation to make such representations about revocation of the cancellation: s 501CA(4)(a) of the Act; and > > (b) the Minister is satisfied that: > > > (i) the person passes the 'character test' in s 501(6) of the Migration Act: s 501CA(4)(b)(i) of the Migration Act; or, if not, > > > > (ii) there is 'another reason' why the original decision should be revoked: s 501CA(4)(b)(ii) of the Migration Act.

3. A decision under s 501CA(4) of the Migration Act (i.e. to revoke the original decision) involves an assessment and evaluation of the factors for and against revoking the original decision.[3]
4. The Tribunal is required to undertake a 'weighing and balancing' exercise, weighing up the relevant considerations in Direction 110 and the applicant's representations against one another to come to the correct or preferable decision.[4]
5. The Tribunal (decision-maker) must then ask itself whether it is satisfied that there is 'another reason' to revoke the visa cancellation.[5] In Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582 (Plaintiff M1/2021) at [22], the High Court described s 501CA(4) of the Migration Act as conferring 'a wide discretionary power' to revoke the mandatory cancellation if the decision-maker (here, the Tribunal on review of a delegate's decision) is satisfied there is 'another reason' why the cancellation should be revoked. In Plaintiff M1/2021, the majority held (at [22]) that the assessment of whether there is, in fact, 'another reason' is to be undertaken by reference to the representations made by the Applicant.[6]

1. A decision under s 501CA(4) of the Migration Act, whether there is 'another reason' to revoke the mandatory cancellation of a visa, must be made in accordance with any written directions under the Migration Act: s 499(2A) of the Migration Act. Relevantly, the Tribunal (decision-maker) must comply with Direction 110 in considering a request for revocation of a mandatory cancellation of a visa under s 501(3A) of the Migration Act, providing a legislative constraint on the Tribunal's process of reasoning.[7] However, as stated by the Full Court in Singh v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 46; (2023) 296 FCR 582 at [23] and [81], the principles enunciated by Brennan J in Drake (No 2), and subsequent cases concerning the Tribunal's ability to depart from governmental policy, remain applicable.[8]

1. The eight 'Principles' listed in paragraph 5.2 of Direction 110 provide the framework within which decision-makers should approach their task of deciding whether to revoke the mandatory cancellation of a non-citizen's visa under s 501CA of the Migration Act.
2. The eight 'Principles' listed in paragraph 5.2 of Direction 110 are as follows:

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non­citizens 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.

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

(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizens' conduct, or 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 the Australian community.

1. Informed by the eight 'Principles' in paragraph 5.2 of Direction 110, the Tribunal (decision-maker) must take into account the five 'primary considerations' in section 8 of Part 2 of Direction 110, in deciding whether to revoke the mandatory cancellation of a visa under s 501CA(4) of the Act.
2. The five 'primary considerations,' in section 8 of Part 2 of Direction 110, are:

(a) protection of the Australian community from criminal or other serious conduct: paragraph 8.1 of Direction 110; > > (b) whether the conduct engaged in constituted family violence: paragraph 8.2 of Direction 110; > > (c) the strength, nature and duration of ties to Australia: paragraph 8.3 of Direction 110; > > (d) the best interests of minor children in Australia: paragraph 8.4 of Direction 110; and > > (e) expectations of the Australian community: paragraph 8.5 of Direction 110.

1. Informed by the eight 'Principles' in paragraph 5.2 of Direction 110, the Tribunal (decision-maker) must also take into account the three 'other considerations', in paragraph 9 of Part 2 of Direction 110, insofar as they are relevant.
2. The three 'other considerations,' in paragraph 9 of Part 2 of Direction 110, include, but are not limited to, the:

(a) legal consequences of the decision under s 501 or s 501CA of the Migration Act: paragraph 9.1 of Direction 110; > > (b) extent of impediments if removed: paragraph 9.2 of Direction 110; and > > (c) impact on Australian business interests: paragraph 9.3 of Direction 110.

1. Section 7 of Part 2 of Direction 110 provides:

(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

(2) The primary consideration at 8.1....(protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than other considerations.

(3) One or more primary considerations may outweigh other primary considerations.

1. As stated above (at [5]), on 6 November 2025, the Applicant was notified of the mandatory cancellation of his Visa, by hand, which is the method prescribed by reg 2.55(3)(a) of the Migration Regulations 1994 (Migration Regulations): HB 27 and 38. The Applicant was taken to have received the notice when it was handed to him: reg 2.55(5) of the Migration Regulations.
2. Regulation 2.52(2)(b) of the Migration Regulations prescribes that any representations seeking revocation of a mandatory visa cancellation must be made to the Minister within 28 days after the person is given notice of the cancellation. As stated above (at [6]), on 30 November 2023, the Applicant made representations seeking revocation of the cancellation decision, being within the prescribed 28-day period: HB 89.
3. Accordingly, the Tribunal is satisfied that the Applicant made representations to the Minister in accordance with the invitation for the purposes of s 501CA(4)(a) of the Migration Act.

1. It is not in dispute, and the Tribunal accepts based on the evidence before it, that the Applicant does not pass the 'character test', because of the operation of s 501(6)(a) of the Migration Act, because he has a 'substantial criminal record', as defined in s 501(7)(c) of the Migration Act, having been convicted in the District Court of Queensland, on 13 September 2023, for 'Choking suffocation strangulation domestic relationship - domestic violence offence' and sentenced to a term of imprisonment of two years and six months (i.e. sentenced to a term of imprisonment of 12 months or more).

1. Therefore, the only issue to be decided by the Tribunal is whether there is 'another reason' why the decision to cancel the Applicant's Visa should be revoked: s 501CA(4)(b)(ii) of the Migration Act.
2. For the following reasons, the Tribunal is not satisfied that there is 'another reason' why the decision to cancel the Applicant's Visa should be revoked. In reaching its decision, the Tribunal, informed by the eight 'Principles' in paragraph 5.2 of Direction 110, has, as set out below, 'taken into account':

(a) the five 'primary considerations' (in section 8 of Part 2 to Direction 110); and > > (b) the three ''other considerations' (in section 9 of Part 2 to Direction 110).

FIRST PRIMARY CONSIDERATION: Protection of the Australian community from criminal or other serious conduct (paragraph 8.1 of Direction 110)

Safety of the Australian community is the highest priority

1. In applying paragraph 8.1 of Direction 110, the Tribunal must be informed by the eight 'Principles' set out in paragraph 5.2 of Direction 110 and outlined at [23] above.
2. Paragraph 8.1(1) of Direction 110 states:

When considering protection of the Australian community, decision-makers should keep in mind that 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

1. The safety of the Australian community as being the highest 'priority' is also stated as a 'priority' in the 'Principle' in paragraph 5.2(2) of Direction 110.
2. Direction 110 was made on 7 June 2024 and commenced on 21 June 2024. It replaced Direction 99 which did not contain the principle that 'the safety of the Australian community is the highest priority of the Australian Government'. The safety of the Australian community as being the highest 'priority' of the Australian Government, and in the application of Direction 110 by decision-makers, is reflected in the media release, published on 7 June 2024 by the Minister, Hon Andrew Giles MP (who authored both Directions 99 and 110), announcing Direction 110 as follows:[9]

Today, I have signed Ministerial Direction 110, a new, revised Direction to strengthen the consideration of community safety in Australia's migration system.

Since coming to office, the Government has refused and cancelled a large number of visas on character grounds in the interests of community safety.

However, it is clear the AAT has made a number of decisions independently of Government that do not reflect the Government's intent or meet community expectations.

Since the beginning of last week, I have cancelled 40 visas in the national interest.

Today, we take the next step in strengthening our cancellation system to better reflect community expectations.

Ministerial Direction 110 is guided by two key principles; the protection of the Australian community and common sense.

This new revised Direction makes crystal clear that the Government expects the protection of the Australian community be given greater weight in visa decisions.

The revised Direction makes it clear that the safety of the Australian community is the Government's highest priority - and includes this as a key principle of the decision-making framework.

Ministerial Direction 110 is an important step in ensuring that our migration system works in our national interest, and visa decisions are in line with common sense and the safety of Australians.

Community safety is and always will be our Government's highest priority.

1. Accordingly, the phrase 'safety of the Australian community,' in the 'Principle' in paragraph 5.2(2) of Direction 110 and the first 'primary consideration' in paragraph 8.1(1) of Direction 110 (Protection of the Australian community) is directed at the 'risk' posed by a non-citizen to the safety of the Australian nation should they be granted a visa. It is not directed at the potential consequences for a segment of the Australian community (such as the non-citizen's family members) should the visa not be granted or restored. The Tribunal must assess whether a non-citizen's continued presence in Australia would 'be opposed to the safety and welfare of the nation.'[10]
2. Paragraph 8.1(2) of Direction 110 states that, when considering protection of the Australian community, decision-makers must consider the:

(a) nature and seriousness of the non-citizen's conduct to date: paragraph 8.1.1 of Direction 110; and > > (b) risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct: paragraph 8.1.2 of Direction 110.

**_Nature and seriousness of the Applicant's conduct to date (paragraph 8.1.1 of Direction 110)

Nature and seriousness of the Applicant's conduct to date_**

(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

1. crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
2. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

1. Therefore, paragraph 8.1.1(1)(a) of Direction 110 makes clear that crimes of a violent nature against women, and any acts of family violence, are considered very serious crimes, regardless of the sentence imposed.
2. As stated above (at [9]), the Applicant has an extensive criminal history which spans from 2003 to 2023 (i.e. 20 years) in Victoria and Queensland: HB 56 - 58. The Applicant has been convicted of various offences including theft, dealing with proceeds of crime, breach of family violence intervention orders, intentionally damaging and destroying property, and unlawful assault: see 'Annexure A' attached.
3. The Applicant's Index Offending (described above at [10]), which involved an act of actual violence committed against a woman with whom the Applicant was in a relationship and which caused the victim to be injured, is plainly objectively 'very serious' conduct.
4. In her witness statement, the victim describes the Applicant's Index Offending as follows:

13. We'd both been drinking a lot. We were arguing again, and it got out of hand.

15. I think it came to that after we had a verbal argument and I fell on the ground.

1. He got on top of me. I think he was trying to get me to calm down and stop me from arguing with him. I don't remember anything that was specially said.
2. [The Applicant] put both of his hands around my throat. I think they were there for about ten seconds or so. I could feel pressure around my neck. I started to panic as my breath was shortening and it was hurting me. I felt some pressure in my head. I have never been in that sort of situation previously. It was very confronting to me.
3. I don't remember too much, but [the Applicant] pinned me down to the ground on the lounge room and strangled me. He was on top of me, straddling me around the pelvic area. He had both of his hands around my neck and was squeezing reasonably tightly. I do recall feeling the pressure and it was hurting me. Out of ten, I would say about a six or seven. I know it wasn't good: HB 80.

1. Paragraph 8.1.1(1)(c) of Direction 110 provides that in considering the nature and 'seriousness' of the Applicant's criminal offending to date, the Tribunal must have regard to 'the sentence imposed by the courts for a crime or crimes', noting that, when reviewing the Minister's decision whether there is 'another reason' to revoke a mandatory visa cancellation, the Tribunal may not impugn or 'go behind' either the conviction or the sentence.[11]
2. The objective 'seriousness' of the Applicant's Index Offending is reflected in the sentencing remarks of Judge Richards, who observed:

...you have pleaded guilty to an offence of strangulation in a domestic setting. The strangled person was your partner at the time....Strangulation is very serious. It would be terrifying for the victim: HB 60.

1. Her Honour then observed that the Applicant went on to breach the domestic violence order that the police made following the Index Offending (on 1 December 2022), and that he was sentenced to a four-month term of imprisonment consequently: HB 60. Her Honour commented:

...In my view, given your background, this is serious offending and a sentence of two and a-half years, in my view is appropriate: HB 60.

1. As stated above, Judge Richards sentenced the Applicant to a term of imprisonment of two years and six months for the Index Offending: HB 38 and 57. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and where a court has sentenced an offender to a term of custodial imprisonment, this should be viewed as a reflection of the objective 'seriousness' of the offending involved.[12]
2. For the above reasons, the Tribunal considers that the Applicant's Index Offending should be objectively viewed as 'very serious.'

Frequency of offending & cumulative effect of repeated offending

1. Paragraph 8.1.1(1)(e) of Direction 110 requires the Tribunal to have regard to the frequency of the Applicant's offending and whether there is any trend in increasing seriousness in considering the 'nature and seriousness' of the Applicant's criminal offending or other conduct to date. Further, the Tribunal must have regard to the cumulative effect of repeated offending in considering the 'nature and seriousness' of the Applicant's criminal offending or other conduct to date: paragraph 8.1.1(f) of Direction 110.
2. Prior to the Applicant's conviction and sentencing for the Index Offending on 13 September 2023, the Applicant was convicted of numerous offences between 4 February 2003 and 5 December 2022, which relevantly included multiple convictions for family violence related offending: HB 57 - 58 and Annexure A.
3. The Tribunal considers that the Applicant's criminal history demonstrates a trend of increasing seriousness and that his offending has been frequent: paragraph 8.1.1(1)(e) of Direction 110. This is reflected in the sentencing remarks of Judge Richards, who commented:

You are a 40-year-old man, so you are mature, and you have quite a long history, now, of domestic violence in Victoria in the main. So, it cannot be said that this is out of character for you. In fact, it seems to be a pattern that you are repeating over a number of years, since about 2009. Obviously, the fact that you keep doing this is a circumstance of aggravation.: HB 60.

1. Further, the Tribunal takes the view that the cumulative effect of the Applicant's repeated offending is 'very serious' and, as submitted by the Respondent, must have resulted in significant use of police and court resources: paragraph 8.1.1(1)(f) of Direction 110 and HB 373.

Conclusion: Nature and seriousness of the conduct (paragraph 8.1.1 of Direction 110)

1. For the above reasons, and as informed by the 'Principles' in paragraph 5.2 of Direction 110, the Tribunal considers the 'nature and seriousness' of the Applicant's criminal conduct to date to be 'very serious': paragraph 8.1.1 of Direction 110.
2. In reaching this conclusion, the Tribunal notes that a majority of the Full Court recently held that the Tribunal is not bound by the expressed views as to the 'seriousness' of certain conduct found within paragraph 8.1.1(a) and (b) of Direction 110 and, instead, the Tribunal is required to assess for itself the 'nature and seriousness' of a non-citizen's conduct to date and the weight that should be attributed to this consideration.[13]
3. For the above reasons, the Tribunal considers that the 'nature and seriousness' of the Applicant's criminal offending to date weighs heavily against revocation.

Risk to the Australian community should the Applicant commit further offences or engage in other serious conduct (paragraph 8.1.2 of Direction 110)

1. The Tribunal must also consider the 'risk' to the Australian community should the Applicant commit further offences or engage in other serious conduct: paragraph 8.1.2 of Direction 110. Some conduct, and the harm that would be caused, if repeated, is so serious that any risk it may be repeated may be 'unacceptable': paragraph 8.1.2(1) of Direction 110.
2. In assessing the 'risk' posed by the non-citizen to the Australian community, the Tribunal must have 'regard to,' cumulatively:

(a) the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct: paragraph 8.1.2(2)(a) of Direction 110; and > > (b) the likelihood of the Applicant engaging in further criminal or serious conduct, taking into account: > > > (i) information and evidence on the risk on the Applicant reoffending; and > > > > (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community, if any, since his most recent offence: paragraph 8.1.2(2)(b) of Direction 110.

3. The concept of 'risk' and whether it is 'unacceptable,' for the purpose of paragraph 8.1.2(1) of Direction 110, is not the same thing as the 'likelihood of the non-citizen engaging in further criminal or other serious conduct', for the purpose of paragraph 8.1.2(2) of Direction 110.[14]
4. Direction 110, directs the Tribunal's 'risk' assessment by expressly stating that, informed by the 'Principles' in paragraph 5.2 of Direction 110, the:

(a) Australian Government is committed to 'protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens': paragraph 8.1(1) of Direction 110; > > (b) Australian Government views that certain types of conduct may be considered by it and the Australian community as 'very serious' and 'serious': paragraph 8.1.1(1) of Direction 110; and > > (c) Australian Government's view is that 'the Australian community's tolerance of any further risk of future harm becomes lower as the seriousness of the potential harm increases': paragraph 8.1.2(1) of Direction 110.

5. In Tanielu v Minister for Immigration and Border Protection [2014] FCAFC 673; (2014) 225 FCR 424, Justice Mortimer (as her Honour then was) said (at [103]):

It is well established that, where the harm which might be caused by future conduct is particularly serious, a lesser likelihood of the conduct occurring may be required for the risk to be identified at a level requiring a particular decision to be made. It is also well established that the likelihood of a person engaging in conduct in the future is affected by both static and dynamic factors: that is, factors which can be assessed objectively against statistical models to predict the risk category a person falls into, and dynamic factors personal to an individual which may moderate or exacerbate the risk the person otherwise could be said to pose. Those factors might include family support, alcohol and drug abuse patterns, employment and the like.

1. Accordingly, the 'risk' referred to in the balancing exercise contemplated by Direction 110 is not just 'any' risk that a non-citizen may 'commit further offences or engage in other serious conduct', but is aimed at the Tribunal's assessment of the nature and degree of harm said to exist in the particular circumstances of the Applicant's case.
2. There is no statutory constraint on the way the Tribunal is to assess that risk, other than the requirement for the Tribunal to adopt a rational and probative approach to the assessment.[15]
3. Having regard to the 'very serious' nature of the Applicant's offending, the Tribunal considers, as contended by the Respondent, that any future offending by the Applicant, of a similar nature, would expose the Australian community to significant physical and psychological harm: paragraph 8.1.2(2)(a) of Direction 110 and HB 374 at [30].
4. Further, the Tribunal considers, as submitted by the Respondent, that the Applicant's conduct and the harm that would be caused to the Australian community, if it were to be repeated, is so 'serious' that any 'risk' that it may be repeated is unacceptable to the Australian community: paragraph 8.1.2(1) of Direction 110 and HB 374 at [30].
5. In his 'Personal Circumstances Form,' dated 24 November 2023, in support of his request for revocation the mandatory cancellation of his Visa the Applicant states the following in relation to criminal history and risk of reoffending:

Outline any factors you believe help explain your offending, that you want the decision-maker to take into account.

The biggest factor for any offence I have done is alcohol. When I do not drink I would never say or do almost anything I do when I'm drinking heavily. I was also not taking my medication for depression and stuck in a relationship that was only 3 months old. I wish I could take it all back: HB 138.

1. In 'Submissions' prepared by the Applicant's representative, dated 1 December 2023, the Applicant submitted that at the time of the Index Offending he was 40 years old and was 'struggling with alcoholism', he acknowledged that his 'actions were stupid' and said that he would 'attend courses to prevent recidivism associated with alcohol': HB 98 -99.
2. As stated above, the Applicant pleaded guilty to the Index Offending: HB 60. In this regard, in the sentencing remarks, Judge Richards stated:

Taking into account your pleas of guilty and the fact that you are well-behaved in jail and you have got a position of responsibility, I will order parole at an earlier time than usual...

1. Further, in a statement by the Applicant, dated 14 March 2023 (Applicant's Statement), the Applicant expressed some remorse for his conduct, as follows:

At the time [of the Index Offending] I was drinking heavily, not taking medication for my mental health on a regular basis & homeless. I was also interstate from my family or anyone I knew I could ask for help.

At no point am I attempting to make any excuse for my actions however I strongly believe this had a very big impact on me making a lot of poor choices.

In the first few weeks of being in prison I was put into the medical ward to recover from psychosis & detox from alcohol. Over the next few months, I worked on my mental health and started to try to understand & come to terms with what had happened. After being in prison for 6 months I realised I had spent the longest period of my adult life sober. I was trying to understand how to deal with emotions & feelings I had been suppressing for a long time.

After 12 months with no alcohol I can now understand & appreciate the impact of an extended period of sobriety has had on me. Along with daily medication for mental health it has helped improve both my physical and mental health in a lot of ways.

My ultimate goal is to remain in Australia. To rebuild my life & to become a better parent, son and brother to my family: HB 144.

1. The Applicant has given following evidence concerning his intentions to participate in available courses during his detention to support his personal growth and development, with a view to making better choices in the future:

During my time in detention I intend to utilise the courses available to me to help me grow & gain a better understanding of myself with the hope it will help me make better choices in the future. I know simply not having alcohol is not a quick fix solution. I will have access to alcohol at some point in the future however I know & fully understand that I can not have alcohol as part of my life in any capacity: HB 144.

1. In support of these submissions, the Applicant has provided 'Certificates of Course Completion' for the following three short 'online' courses that he completed whilst in immigration detention (which required him to read certain information and answer various questions in relation to that information):
   • 'Understanding Drug and Alcohol Abuse' (with a Final Grade of 93%), issued 26 February 2025 (First Online Course): HB 320;
   • 'Stress Management' (with a Final Grade of 92%), issued on 3 March 2025 (Second Online Course): HB 321; and
   • 'Understanding addictions' (with a Final Grade of 79%), issued on 9 March 2025 (Third Online Course): HB 322.
2. In his oral evidence at the hearing, the Applicant described the above courses, and what he personally learned from them, as follows:
   • First Online Course - The Applicant said that he learned about the 'triggers' or reasons why he abused alcohol and that it reinforced what he had learned in the past but failed to put into practice;
   • Second Online Course - The Applicant described this as an 11-hour course which he completed online over about five days. The Applicant said that this course taught him about the importance of having a routine and strategies to deal with stress, how to deal with things when they affected him, including removing himself from a situation where his stress became 'heightened;' and
   • Third Online Course - The Applicant described this as a 9-hour online course which he completed over a few days. The Applicant said that this course taught him to seek to find alternatives to alcohol when seeking to solve his problems, that there are 'other ways,' not involving alcohol, to deal with his problems. When sober, he has a clear head to think calmy about how to address problems and stress.
3. Despite the Applicant's above evidence in relation to the three short online 'rehabilitation' courses whilst he has been in immigration detention, the Tribunal notes that none of what he has 'learned' in these short online courses has been tested against the stressors of the unsupervised environment of living in the Australian community, outside detention.
4. In his oral evidence at the hearing, the Applicant said that he has been seeing a psychologist, one-on-one, regularly at Yongah Hill Immigration Detention Centre, at first weekly but, more recently, fortnightly. When asked what is discussed in these sessions, the Applicant's response was as follows:

(a) He said they discuss the fact he has suppressed memories with alcohol for the past 30 years and good ways to deal with certain emotions and situations (i.e. coping strategies and mechanisms) and that he should remove himself from 'triggering' stressful situations and to think first before acting. > > (b) The psychologist has taught him to think about 'What happens when, not what happens if?' and various breathing techniques and meditation to 'slow his brain down.' > > (c) The Applicant said that if he is released from detention he will not actively seek out a relationship of 'convenience,' someone to 'hold his hand' and be beside him, as he has done in the past. Rather, he will concentrate solely on himself and his own well-being.

5. Again, what the Applicant has 'learned' from his 'one-on-one' sessions with the psychologist during his time in immigration detention remains to be tested against the stressors of the unsupervised environment of living in the Australian community, outside detention.
6. Further, in his oral evidence at the hearing, the Applicant said that his entire history of 'family violence' has occurred when he has been 'under the influence of alcohol,' and that he has an addiction. The Applicant told the Tribunal that he has learned more about himself in the past three years, whilst being forced to abstain from alcohol in prison and detention, than he has in 30 years. He said that alcohol has taken everything away from him. He fears that if the cancellation of his visa is not revoked and he is removed from Australia to New Zealand he will go straight back into drinking, especially without the support of his family and friends. Further, not being allowed to return to Australia and visit his elderly parents and family would be the 'worst punishment' imaginable. The Applicant described himself as being a 'good person without alcohol' and that he wanted the opportunity to show his family that.
7. In cross-examination, the Respondent's representative asked the Applicant whether he has completed any family/domestic violence related rehabilitation courses. The Applicant's response was 'no' but that if he can remain in Australia, upon release from detention he will move to the farm where his parents live and draw upon his youngest sister, Ruby Bell's, knowledge to find suitable rehabilitation programmes.
8. The Applicant's parents, Mrs Linda Bell and Mr Bevan Bell Snr, provided a joint (dated 31 July 2025) letter of support of their son's application (Parents Letter of Support): HB 145. The Parents Letter of Support is written from the perspective of Mrs Bell. However, Mr Bell confirmed, in is oral evidence at the hearing, that he was actively involved in preparing the Parents Letter of Support and that it is equally his letter.
9. The Applicant's parents, are the 'caretakers' of a small farm, owned by Mrs Debby Pratt and Mr David Pratt, about one and a half hours from Perth. In the Parents Letter of Support, Mrs Bell describes the family support he will have if he comes to live with her and her husband on the farm, including from his two sisters and their four children who live close by, as follows:

I am hoping if he can return home to us it will be so different to where he has been before, and with the quiet life style will suit him while he has his mental health issues addressed: HB 145.

1. Mrs Pratt provided an (undated) letter in support of the Applicant (Mrs Pratt's Supporting Letter): HB 152. Mrs Pratt's Supporting Letter states, in part:

Bevan has indeed made mistakes in his life, which have had terrible consequences. I know first-hand how deeply Bevan regrets the pain he caused. His Mum and Dad visit the detention centre, and tells them that he is not only regretful but also understands the impact his actions have had on others.

His time in Prison and detention, as well as counselling and personal reflection, have made Bevan a better person. He is truly a good man, and I am confident that, given the opportunity, he will prove that he can make a positive contribution to society.

Let me assure you that if Bevan is released from detention he has my support and husband David Pratt as well Bevan's Dad and mum and his 2 sisters Melissa Bell and Ruby Bell. We will give him all the personal and emotional help he needs to avoid returning to a negative lifestyle: HB 152.

1. In a separate supporting letter provided by the Applicant's mother, dated 25 July 2025 (Mrs Bell's Supporting Letter), Mrs Bell states the following in relation to her son's rehabilitation:

Over the past two years [Bevan] has had a lot of time to reflect on his life, and has come to the conclusion he has been self medicating with alcohol. He has been battling with mental health problems for many years and has been seen by doctors and is now on medication. He is also hoping to be accessed (sic.) for ADD or ADHA, which I feel should have been done when he was a child. I did try to have him accessed (sic.) when he was younger but was told it was just his behaviour and [he] needed more discipline.

He is a different person without alcohol, we enjoy going to visit him and sit and talk anything from family to sport to anything that might be on TV at the time. I know he would love to be granted his visa and be able to go to footy training with his nephew and help his brother in law coach the team. He is very proud of his nieces and nephews: HB 363.

1. In her oral evidence at the hearing, Mrs Bell said that she understood that the Applicant's Visa was cancelled in Brisbane after a domestic dispute. Mrs Bell said that she had witnessed her son verbally abuse people about five times, maybe less, but that she had never seen him physically harm anyone, including her and her husband. She said that he had been intoxicated and very loud around her and her husband on many occasions but that he would generally just 'go to bed' or 'leave the house' after she threatened to call the police. Mrs Bell said that during her visits with her son in the detention centre they had discussed that 90% of his problems were caused by alcohol and that, if he is released, she would do everything in her power to keep him sober for the rest of his life. She said that if the Applicant is released, he can live with her and her husband on the farm and that there is plenty of work for him on the farm (e.g. looking after the animals, changing the paddocks, cropping, fencing, bob cat work, and tractor work) or locally. Mrs Bell said that she and her husband lived on a bus on the farm owned by Mr and Mrs Pratt and that the Pratts had offered the Applicant a room on their house on the farm if he is released.
2. In his oral evidence at the hearing, Mr Bell (the Applicant's father) said that he understood that his son's visa had been cancelled because of an incident with his ex-partner in Brisbane. Mr Bell said that the Applicant raises his voice when he drinks, is 'mouthy' and 'raves and rants' but that he has never physically hurt him or his wife. Mr Bell said that when the Applicant is verbally abusive, as a result of drinking, he threatens to call the police and 'nine times out of ten' the Applicant leaves the house. In cross-examination, the Respondent's representative asked Mr Bell whether he could recall being 'shirt fronted' by the Applicant during an incident in 2008. Mr Bell said that could not remember that happening.
3. In his oral evidence at the hearing, the Applicant told the Tribunal that, if released into the community, he would live on the farm where his parents live (and are the 'caretakers') and work on the farm looking after the livestock or the like. In cross examination, the Respondent's representative asked him whether he had considered returning to working in hospitality (as he had done in the past) and the Applicant's response was 'no,' because the hospitality industry presented too many 'temptations,' in terms of him returning to drinking alcohol, and he did 'not want to do that.'
4. Further, in his oral evidence at the hearing, the Applicant described his pattern of offending as involving drinking and 'short toxic relationships.' He said that 'alcohol' was a major factor in everything that has happened and that 'drinking and arguing' was all that he knew and something his partners knew as well.
5. The Applicant's sister, Ms Ruby Bell (Ruby), also provided an (undated) letter supporting the Applicant (Ruby Bell's Supporting Letter), wherein she refers to the Applicant's risk of reoffending, as follows:

With my work, I work in the rehabilitation space working with people of different backgrounds previously including injury, dismissal from work, jail release program, Holyoake drug and alcohol programs.

Over my working career I've learnt that not every case is black and white, and as a society we have to believe in rehabilitation as an option.

My brother has made bad decisions, letting his addiction control his actions and his mindset but he deserves a chance and in my opinion has showed that he is able to recovery (sic.) as he is engaging in rehabilitation.

I believe with a plan of rehabilitation Bevan CAN enter into an Australian society and not make the same mistakes and choices he has previously.

With the support of us as his family, Bevan would NOT take a step back, and would only take steps forward with graduate. And become an active member of society like he once was.

1. In her oral evidence at the hearing, Ruby explained that she never visited the Applicant when he was in prison in Victoria because it was impractical because she lives in York, Western Australia, works full-time, her husband works full-time, and they have two young children. However, she was in frequent contact with through her parents. Since the Applicant has been in detention in Yongah Hill (25 minutes from where she lives) she has visited the Applicant, in person, at least six times and they telephone and message one another frequently. According to Ruby, the Applicant has benefited greatly from being incarcerated and detained and abstaining from alcohol and is a 'different person' now. She said that if the Applicant is released into the community, he will have the full support of her and her husband.
2. The Applicant's brother-in-law, Mr Daniel Skelton (Daniel), also provided an (undated) letter supporting the Applicant (Daniel Skelton's Supporting Letter). In Daniel Skelton's Supporting Letter, Mr Skelton describes the Applicant's rehabilitation, in the last two years since he has been in detention, as follows:

....Over the last 2 years we have been able to see the vast improvements in Bevans physical and mental health, with Bevan having time to reflect and work on himself, with his mental health being a priority. We have been able to see the positive results of this work through our visits and conversations with Bevan: HB 366.

Conclusion: Risk to the Australian community should the Applicant commit further offences or engage in other serious conduct (paragraph 8.1.2 of Direction 110)

1. The Applicant has an extensive criminal history, including the Index Offending, in Australia which spans 20 years: see [9] above. The Applicant also has a very poor history of past-compliance with court-imposed orders: see [98] below.
2. It is clear from the content and tone of the Applicant's oral evidence at the hearing that he has made some progress towards rehabilitation. Overall, in his oral evidence, the Applicant, took ownership of and responsibility for his offending and openly recognised that alcohol was central to it. Although, in the Applicant's evidence concerning the seven further incidents of 'family violence,' he sought to minimise his involvement in those incidents by attempting to attribute some blame on the victim/his ex-partner: see [100] to [116]. The Tribunal also acknowledges the evidence of the Applicant's parent, his sister Ruby, his brother-in-law Daniel and Mrs Pratt, in relation to the support they intend to offer him, in terms of rehabilitation, if he can remain in Australia and upon his release from detention. However, the steps the Applicant has taken towards rehabilitation to date, namely three short 'online' courses and regular visits with the psychologist in immigration detention, are untested beyond the confines of prison and immigration detention and are, in the Tribunal's view, insufficient to establish that his 'risk' of reoffending is acceptable to the Australian community.
3. For the above reasons, the Tribunal considers that the Applicant's 'risk' of reoffending remains 'unacceptable' to the Australian community. Even a low risk of offending is unacceptable if, as is the case here, the gravity of the harm that might eventuate from future similar is sufficiently serious: paragraph 8.1.2 of Direction 110.[16]

Conclusion: Protection of the Australian community (paragraph 8.1 of Direction 110)

1. Informed by the 'Principles' stated in paragraph 5.2 of Direction 110, and considering: (i) the nature and seriousness of the Applicant's conduct to date; and (ii) the risk to the Australian community should he commit further offences or engage in other serious conduct, the Tribunal considers that the first 'primary consideration' (Protection of the Australian community), in paragraph 8.1. of Direction 110, weighs heavily against revocation, noting that the safety of the 'Australian community' is the highest priority of the Australian government: paragraph 5.2(2) of Direction 110.

SECOND PRIMARY CONSIDERATION: Whether the conduct engaged in constituted family violence (paragraph 8.2 of Direction 110)

1. Paragraph 8.2(1) of Direction 110 provides that the Government has 'serious concerns about conferring on non-citizens who engage in family violence the privilege of... remaining in Australia'. This consideration is relevant both in circumstances where there has been a conviction of a 'family violence' offence, and where there is information or evidence from independent and authoritative sources indicating that there has been the perpetration of family violence: paragraph 8.2(2) of Direction 110.[17]
2. 'Family violence' is defined in paragraph 4(1) of Direction 110 (Interpretation) Direction 110 as follows:

family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful: paragraph 4(1) of Direction 110.

1. Paragraph 4(1)(a) to (j) of Direction 110 provides 'examples' of 'behaviour' that 'may' constitute 'family violence' for the purpose of paragraph 8.2 of Direction 110.
2. Paragraph 8.2(3) of Direction 110 provides that 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: > > > (i) the extent to which the person accepts responsibility for their family violence related conduct; > > > > (ii) the extent to which the non-citizen understands the impact of their behaviour on the abused and witnesses of that abuse (particularly children); > > > > (iii) efforts to address factors which contributed to their conduct; and > > (d) whether the non-citizen has reoffended 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 Index Offending constitutes 'family violence,' as defined in paragraph 4(1) of Direction 110, being violent behaviour perpetrated against the Applicant's former partner.

Breaches of interventions orders and contraventions of family violence intervention orders

1. In addition to the Applicant's Index Offending, the Applicant has also received convictions in connection with the following 'family violence' offending:
   • One count of 'breach intervention order' on 9 February 2009: HB 58;
   • One count of 'breach intervention order' and one count of 'contravene family violence intervention order' on 29 June 2010: HB 58;
   • One count of 'contravene family violence intervention order' on 26 May 2014: HB 57; and
   • Two counts of 'contravene family violence safety notice' on 23 May 2022: HB 57.

1. At the hearing, the Respondent directed the Tribunal's attention to seven further incidents of 'family violence' of the Applicant, set out in the 'Incident Summary Reports' produced under summons by Victoria Police: HB 454, 455, 461, 463, 467, 470, and 472.
2. The Respondent's representative indicated to the Tribunal that he wanted to ask the Applicant some questions in relation to these seven family violence incidences. Accordingly, the Tribunal informed the Applicant (i.e. issued the Applicant with a 'warning') that he is entitled to the privilege against self-incrimination, that he was not obliged to answer a question about these incidences and that it was a matter for him if he chose to do so, but, if he did, the evidence given could be used against him. The Applicant agreed to proceed with being questioned, by the Respondent's representative, about these seven further incidents of 'family violence' on this basis.

(i) 13 December 2007 'family violence' incident

1. According to a Victoria Police 'Incident Summary Report,' dated 13 December 2007, Victoria Police reported an incident of family violence conduct perpetrated by the Applicant against the affected family member (AFM) who is described as having been in a relationship with the Applicant for eighteen months and that they had ten-week-old child together. It is reported that the AFM sent an email to the Applicant regarding the custody of their ten-week-old child, following which the Applicant phoned the AFM and said that 'he would love to see her being set alight and burn [sic] to death'. The Applicant reportedly called the AFM several more times and told her that he would 'grab a kitchen knife and stab her in the throat'. The AFM reported the incident to police and was advised to seek a variation of her existing intervention order to prohibit phone contact from the Applicant: HB 472.
2. At the hearing, the Respondent's representative asked the Applicant whether he agreed with the veracity of the above facts. The Applicant's response was simply that he does not recall ever receiving the email from his ex-partner, as described above, regarding the custody of their child or the above incident.

1. According to a Victoria Police 'Incident Summary Report,' dated 7 April 2008, Victoria Police reported a further incident of family violence conduct arising from a physical altercation between the Applicant and the AFM. It is reported that the Applicant, attempting to reconcile his two-year relationship with the AFM, attended the AFM's address on Saturday 5 April 2008, proceeded to drink alcohol between 2.00am and 4.00am on Sunday 6 April 2008, and he and the AFM became involved in a protracted physical fight, 'occurring over the course of a few hours'. Both parties were observed to have obvious injuries, with facial cuts, bruises on the body, arms and legs. The AFM was reported as sustaining a 'deep cut to her left arm' during the fight and that the Applicant pushed her head between her legs and that he 'threatened to kill her numerous times': HB 470.
2. At the hearing, the Respondent's representative asked the Applicant what he remembers about the above incident and whether the above description of it is factually accurate. The Applicant's response was that he remembers an argument between two people who had consumed 'massive amounts of alcohol' and that he had sustained multiple injuries during the fight and that a lot of the AFM's injuries were 'self-inflicted.' The AFM was the mother of his son and that their relationship was one of 'convenience,' it was not a real relationship like the one he had with the mother of his daughter, Catherine.

(iii) 6 October 2008 'family violence' incident

1. According to a Victoria Police 'Incident Summary Report,' dated 6 October 2008, Victoria Police reported a further incident of family violence conduct arising from a verbal and physical altercation between the Applicant, the AFM and the Applicant's father. It is reported that the AFM and the Applicant had been dating for approximately four months and that the AFM recently discovered she is pregnant and that during that evening the AFM and the Applicant had an argument about 'keeping the baby.' The Applicant is reported to had been drinking all day and began damaging property within the AFM's premises. When the police arrived, the Applicant was extremely intoxicated and made a full admission to police regarding damaging the property. It is reported that the Applicant told the police that he did not want to be charged, just removed from the property and contacted his parents to come and collect him. Approximately ten minutes later, the Applicant's parents arrived and is reported to have become verbally aggressive towards them and 'shirt fronted' his father and was arrested: HB 467.
2. At the hearing, the Respondent's representative asked the Applicant whether he remembers the above incident. The Applicant's response was that he did not recall the incident and that he was unsure who the AFM involved in the incident was. Further, the Applicant said that he has 'never raised a hand towards his father.'

(iv) 17 December 2010 'family violence' incident

1. According to a Victoria Police 'Incident Summary Report,' dated 17 December 2010, Victoria Police reported a further incident of family violence conduct between the Applicant and the AFM, who is described as having been in a relationship with the applicant for approximately eight months. It is reported that the AFM and the Applicant had separated about one week prior to the incident, but remained friends, and spent the day together. It is reported that a verbal argument started between them, in the AFM's car (where her two children, from a previous relationship, were also present) because the Applicant believed that the AFM had taken his mobile phone. The Applicant was convinced that the AFM had his phone so the verbal argument between them continued. When the parties arrived at the AFM's house, the Applicant picked up a small brick and threw it at the side of the property, causing a small hole in the wall and the Applicant was arrested at the scene for criminal property damage: HB 463.
2. At the hearing, the Respondent's representative asked the Applicant whether he recalls the above incident. The Applicant's response was that he cannot remember who the AFM involved in the incident was and that he does not recall his phone being taken or throwing a brick.

1. According to a Victoria Police 'Incident Summary Report,' dated 15 April 2011, the Victoria police reported a further incident of family violence conduct between the Applicant and the AFM. It is reported that the Applicant and the AFM were at home together after work and there was tension between them 'because of money issues,' and that the Applicant smashed the AFM's land line phone because she was going to call her friend. It is reported that the Applicant had been 'drinking beer prior to going home,' and that he continued to drink beer once home. It is reported that the Applicant threw a wallet at the AFM and went into the bathroom. They continued to yell at each other and that the AFM threw a 'stubbie' at the floor, which hit the Applicant on the foot. The Applicant reportedly became enraged and followed the AFM to the kitchen, where he grabbed her by her arms and wrestled her to the ground. It is reported that the parties wrestled for some time, with the Applicant spitting on the AFM throughout the entire argument. It is reported that the AFM was sitting on the lounge and the Applicant went up and 'sprayed beer in her face.' The AFM continued to argue and wrestle for some time before the Applicant's mother arrived to collect him. It is reported that the Applicant went outside and started to smash the AFM with a shoe causing her to fall to the ground. The AFM was observed to have received numerous bruises and swelling to her nose and hands and was in pain. The Applicant was arrested: HB 461-462.
2. At the hearing, the Respondent's representative asked the Applicant whether he recalls the above incident. The Applicant's response was that he does recall this incident and that it involved the mother of his son. He said he 'agrees' with the incident, although the facts are not 'entirely correct.'

1. According to a Victoria Police 'Incident Summary Report,' dated 27 June 2015, Victoria police reported a further incident of family violence conduct between the Applicant and the AFM, who are reported to have been in a relationship for three years. The AFM's four-year-old daughter was present at the home during the incident. It is reported that the Applicant and the AFM were at their local pub until approximately 7.00pm, after which time the Applicant returned home. The Applicant is reported to have returned to the pub a few hours later to see why the AFM had not come home, where they had a verbal argument. The Applicant, once again, returned home and the AFM remained in the pub with her friend. At approximately 1.00am on 27 June 2015, the AFM returned home with her friend. It is reported that an argument broke out between the AFM and the Applicant, because the Applicant was upset that the AFM had been out at the pub for so long. It is reported that, during the argument, which became 'quite heated,' the Applicant grabbed the AFM by her throat and shoved her backwards. The AFM stumbled backwards and a short wrestle ensued. The AFM suffered no visible injuries from the push to the neck. It is reported that the AFM's friend then became involved which resulted in her getting pushed away by the Applicant and several picture frames being knocked off their shelves and smashing onto the floor. The police arrived and took the Applicant away: HB 455.
2. At the hearing, the Respondent's representative asked the Applicant whether he recalls the above incident. The Applicant's response was that he 'agrees' that the incident happened but the description of what happened is not exact.

(vii) 16 February 2022 'family violence' incident

1. According to a Victoria Police 'Incident Summary Report,' dated 16 February 2022, Victoria police reported a further incident of family violence conduct perpetrated by the Applicant against the AFM, who is reported to have been in a relationship with the Applicant for approximately eight months, and living together at the AFM's house in Victoria. It is reported that the AFM has two children separate from the Applicant (aged 10 and 8 years old), who were both at school during the incident.
2. It is reported that, on 16 February 2022, the Applicant 'woke up in a bad mood and verbally abused the AFM'. In the afternoon, the AFM reportedly asked the Applicant to leave the house and that 'she didn't want to be in a relationship with him anymore.' The Applicant refused to leave, and the AFM packed the Applicant's belongings. It is reported that the Applicant refused to leave unless he was given money by the AFM. When the AFM gave the Applicant money and removed his belongings to the front of the property, the Applicant got up from the lounge, started pushing her and hit her in the side of the head three times. The Applicant then choked the AFM, pushing her onto her son's bed and further choking her. The Applicant refused to allow the AFM to leave. The AFM sent a message to her friend to call the police who then contacted the AFM, causing the Applicant to leave the house and walk to a liquor store where he bought a cask of wine and was later located by the police: HB 393.
3. At the hearing, the Respondent's representative asked the Applicant what he remembers about the above incident. The Applicant's response was that he had moved from Perth to Melbourne, COVID happened, the WA borders shut, at the time he was in a relationship with the mother of his son, they were 'drinking heaps' and she was withholding his money. He stated that he 'pushed her, she gave me my money and I left.' The Applicant said that the description of the incident is not entirely accurate. According to the Applicant, after this incident, he tried to seek help by checking himself into three months of rehabilitation at 'Odyssey House Victoria' in Bairnsdale, Victoria.

Conclusion: Whether the conduct engaged in constituted family violence (paragraph 8.2 of Direction 110)

1. The Applicant's Index Offending plainly constitutes 'family violence,' as defined in paragraph 4(1) of Direction 110 and for the purpose of paragraph 8.2 of Direction 110, and that the Applicant's Index Offending and other 'family violence' offending (described above) is objectively 'very serious'.
2. This is especially so, having regard to the facts of the Applicant's 'family violence' offending (which involved violent and/or threatening behaviour by the Applicant towards his ex-partner), the relative frequency with which the Applicant has engaged in 'family violence' conduct and the Applicant's multiple breaches of intervention orders and police protection notices: paragraph 8.2(3) of Direction 110 and HB 57. Further, this is reflected in the sentencing remarks of Judge Richards, who as stated above (at [53]) observed that the Applicant's 'family violence' offending could not be said to be 'out of character' for the Applicant, but, rather, demonstrated a pattern of offending, commencing around 2009: paragraph 8.2(3)(d) of Direction 110 and HB 60.
3. As noted by Senior Member Kirk in Lum and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 792 at [139]:

The Tribunal has consistently found that family violence is abhorrent. It has been described as 'a corrosive blight on the Australian community,' 'plainly abhorrent' and an offence which 'warps and destroys the healthy bonds that should exist between partners and within families'...

1. Based on all the evidence before the Tribunal, there is no doubt that the Applicant has a protracted history of engaging in acts of threatened and actual violence, including towards women and in the presence of children: paragraph 8.2(3)(a)-(b) and (d) of Direction 110. It is in this context, that the Applicant's 'family violence' conduct, which occurred at a high frequency, and despite recurring police involvement, must, as contended by the Respondent, be characterised as objectively 'very serious': HB 383 at [5].
2. For the above reasons, the Tribunal takes the view that this second 'primary consideration' (Family violence committed by the non-citizen), in paragraph 8.2 of Direction 110, weighs heavily against revocation.

THIRD PRIMARY CONSIDERATION: The strength, nature and duration of ties to Australia (paragraph 8.3 of Direction 110)

Impact of decision on Applicant's 'immediate family members' in Australia (paragraph 8.3(1) of Direction 110)

1. Paragraph 8.3(1) of Direction 110 provides that the Tribunal must consider any impact of the decision whether to revoke the mandatory cancellation of a non-citizen's visa on the non-citizens' 'immediate family members in Australia', where those family members are Australian citizens, Australian permanent residents, or people who have the right to remain in Australia definitely.
2. Paragraph 8.3(2) of Direction 110 provides that in considering whether to revoke the mandatory cancellation of a non-citizen's visa, the Tribunal must also consider the strength, nature and duration of 'any other ties' that the Applicant has to the Australian community. In doing so, the Tribunal must have regard to:

(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that: > > > (i) (less weight should be given where the non-citizen began offending soon after arriving in Australia; and > > > > (ii) (more weight should be given to time the non-citizen has spent contributing positively to the Australian community; and > > (b) the strength, duration and nature of family or social links with Australian citizens, Australian permanent residents, and/or people who have an indefinite right to remain in Australia.

3. The Applicant is currently 42 years old and has resided in Australia for 37 years, having arrived in Australia aged five. The Applicant's mother, father, brother, four sisters, two uncles, two nieces, two nephews, son and daughter reside in Australia: HB 137.
4. In his 'Personal Circumstances Form,' dated 24 November 2023, the Applicant submits that his parents would be 'devastated' and his two youngest sisters, whom he is closest to, would find it 'extremely difficult' if the cancellation decision was not revoked and he had to return to New Zealand: HB 137.
5. Similarly, in the Applicant's Statement, the Applicant states:

If I was removed from Australia the impact it would have not only on myself but my daughter & immediate family would be catastrophic. My elderly parents would also not cope very well: HB 144.

1. In the Parents Letter of Support, Mrs Bell describes her (and her husband's) desire to have the Applicant reside with them if his visa is reinstated: HB 145. Further, in the Parents Letter of Support, Mrs Bell states:

Bevan, my husband and I, live on a small farm approximately one and half hours from Perth, and we have spoken to the owners [i.e. Mrs Debby Pratt and Mr David Pratt] and they have assured us we can have Bevan return to the farm where we are. He will have accommodation and support.

There is also work on the farm and other work in the area. His two sisters live close to us and can be in contact with him and their families as much as he wants. The girls have four children waiting for him to come home to see them: HB 145.

1. Mrs Pratt's Supporting Letter confirms this position, as follows:

Bevan previously lived at this address with his father Bevan and Mother Linda Bell. I will happily have Bevan back. Bevan was very helpful around our property.

1. In Mr Skelton's Supporting Letter, Mr Skelton attests to his strong relationship with the Applicant and the impact that his removal to New Zealand would have upon him and his family, as follows:

Bevan is a loving member of our family and an important figure in my children's lives. My children and I have always felt safe and secure around Bevan and we have cherished our visits with him at Yongah Hill Detention Centre...

Through our visits we have been able to keep Bevan involved and up to date with all the children's school activities (son in year 3 and daughter in kindergarten) and sporting highlights with the kids footy and karate. With Bevans passion for sport, the joy this brings both Bevan and my children is easy to see. I know my son wishes his uncle could watch him play footy and help me with coaching his team. These visits have become very important to my family, especially my kids.

The uncertainty over Bevans future has been weighing heavily on my partner (Bevan's youngest sister) and his parents especially, with the stress taking its toll on all of us....

Bevan is my friend, my brother, a loving and caring uncle to my children, and a loving and caring son to my parents in law...

Conclusion: The strength, nature and duration of ties to Australia (paragraph 8.3 of Direction 110)

1. Accordingly, in circumstances where the Applicant has been ordinarily resident in Australia for almost all his life, his immediate family reside in Australia, and he has contributed positively to the Australian community through his employment in Australia, the Tribunal finds that the third 'primary consideration' (The strength, nature and duration of ties to Australia), in paragraph 8.3 of Direction 110, weighs heavily in favour of revocation.
2. However, this third 'primary consideration' (The strength, nature and duration of ties to Australia), in paragraph 8.3 of Direction 110, should not, in the Tribunal's view, outweigh the other 'primary considerations' which weigh heavily against revocation, namely the first 'primary consideration' (Protection of the Australian community), in paragraph 8.1 of Direction 110, the second 'primary consideration' (Family violence committed by the non-citizen), in paragraph 8.2 of Direction 110 and the fifth 'primary consideration' (Expectations of the Australian community), in paragraph 8.5 of Direction 110.

FOURTH PRIMARY CONSIDERATION: The best interests of minor children in Australia affected by the decision (paragraph 8.4 of Direction 110)

1. Informed by the "Principles" set out in paragraph 5.2 of Direction 110, the Tribunal must determine whether non-revocation under s 501CA of the Migration is or is not in the best interests of a child under 18 years old who, at the time when the decision is expected to be made, is affected by the decision: paragraph 8.4(1) and (2) of Direction 110. If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interest may differ: paragraph 8.4(3) of Direction 110.
2. Paragraph 8.4(4) of Direction 110, states that in considering the best interests of the child, the Tribunal must consider the following factors, where relevant:

(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact; > > (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-citizens' 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 non-citizen's ability to maintain contact with the child 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; and > > (h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct: paragraph 8.4(4) of Direction 110.

1. The Applicant has identified the following minor children who may be affected by a decision not to revoke the mandatory cancellation of his Visa:

(a) His son, BB (aged 17 years); > > (b) His daughter, CB (aged 7 years); > > (c) His nephew, LB (aged 11 years); > > (d) His niece, AB (aged 11 years); > > (e) His nephew JB (aged 8 years); and > > (f) His niece, ES (aged 4 years).

1. The Applicant submits that he has not had any contact with his son, BB, since 2014, when BB was 7 years old, because BB's mother did not wish to have any contact with the Applicant. However, according to the Applicant, he 'started to reconnect' with his son shortly prior to his incarceration and is currently making child maintenance payments to support him: HB 100 and 134.
2. In his oral evidence at the hearing, the Applicant confirmed that he has had no contact with his son since his separation from his mother in 2007. He said that he 'gave up' and decided to 'walk away.' The Applicant told the Tribunal that his only contact with his son, since his separation from his mother, has been maintenance/support payments. However, he intends to try and 'reconnect' with his son once he is released from detention.
3. Having regard to the significant period of time during which the Applicant was absent from his son's life, and noting that he will turn 18 on 30 September 2025 (at which time the Applicant's obligation to make maintenance payments will end), the Tribunal considers, as contended by the Respondent, that the Applicant's relationship with his son carries limited weight in favour of revocation: paragraph 8.4(4)(a) and (b) of Direction 110 and HB 376 at [45].

1. The Applicant has given evidence that he has a very close relationship with his daughter, CB, whom he actively co-parented with her mother, Ms Catherine Ashton (Ms Ashton), prior to his incarceration: HB 100.
2. The Applicant submits that his daughter is supportive of both of her parents playing an 'integral part' in her life: HB 100.
3. In his 'Personal Circumstances Form," dated 24 November 2023, the Applicant describes his relationship with CB as being 'very good' and that:

Before I was in prison I lived in the same town & would have regular visits with [CB]. [CB]'s mother & I have a good relationship & I am not limited to any amount of time I can spend with [CB]. I plan to move closer to be a bigger part of [CB]'s life.

....I have been told by [CB]'s mother this is having a big impact on [CB]. [CB] is worried she will never see me again. In the event of a negative outcome I believe the impact on [CB] would be dreadful & the long term effects could be massive.

1. Ms Ashton provided a letter of support in which she states that the following in relation to the relationship between the Applicant and, their daughter, CB:

[CB] has not seen her dad for quite sometime now due to him being in jail, but Bevan rings her weekly and she looks forward to these calls., she is counting down the days until she can see her daddy again. Sending Bevan back to New Zealand would be absolutely heartbreaking for [CB] and Bevan also.

She keeps talking about all the exciting things they can do together when he gets out.

....Bevan is a good guy who does have a heart of gold even tho (sic.) sometimes you need to dig deep lol.

Please [re]consider sending him back to NZ this will not be good for his mental health and will not be good emotionally for [CB], she needs her dad.

1. In his oral evidence at the hearing, the Applicant told the Tribunal that he and Ms Ashton are friends from school. When Ms Ashton's mother fell ill, Ms Ashton moved from Perth to Melbourne taking their daughter, CB, with her. The Applicant said that CB has never visited him, in person, in prison or detention but they speak on the phone at least twice a week. He said that if he is released from detention, he will get CB to come and stay with him in Perth during the school holidays.
2. In circumstances where the applicant has maintained a relationship with his daughter during his incarceration, and where he has indicated that he intends to resume a parental relationship with her if released into the community, the Tribunal considers that that this relationship weighs heavily in favour of revocation: paragraph 8.4(4)(a), (b) and (f) of Direction 110.

1. While the applicant provides some support to his nieces and nephews, as demonstrated by the letter of support provided by the Applicant's sister (Ruby Bell) and brother-in-law ((Mr Skelton): HB 151, 364 and 366, this relationship is non-parental and it is likely that the Applicant's incarceration and detention have resulted in long periods of physical absence from the children: paragraph 8.4(4)(a) of Direction 110.
2. Further, while the Applicant submits that it is in the best interests of his nieces and nephews to have a 'father figure' during their formative years, the Tribunal notes that these children are currently cared for by their own parents (i.e. Ruby Bell and Mr Skelton) and there is no evidence to suggest the Applicant would assume this responsibility if released into the community: HB 100 and paragraph 8.4(4)(e) of Direction 110. Accordingly, the Tribunal affords only limited weight in favour of revocation with respect to the Applicant's relationships with his minor nieces and nephews in Australia.

Conclusion: The best interests of minor children in Australia affected by the decision (paragraph 8.4 of Direction 110)

1. For the above reasons, the Tribunal considers that the fourth 'primary consideration' (Best interests of minor children in Australia affected by the decision), in paragraph 8.4 of Direction 110, on balance, weighs moderately in favour of revocation.
2. However, this fourth 'primary consideration' (Best interests of minor children in Australia affected by the decision), in paragraph 8.4 of Direction 110, should not, in the Tribunal's view, outweigh the other 'primary considerations' which weigh heavily against revocation, namely the first 'primary consideration' (Protection of the Australian community), in paragraph 8.1 of Direction 110, the second 'primary consideration' (Family violence committed by the non-citizen), paragraph 8.2 of Direction 110, and the fifth 'primary consideration' (Expectation of the Australian community), in paragraph 8.5 of Direction 110.

FIFTH PRIMARY CONSIDERATION: Expectations of the Australian Community (paragraph 8.5 of Direction 110)

1. Informed by the 'Principles' set out in paragraph 5.2 of Direction 110, paragraph 8.5 of Direction 110 provides that the Tribunal must consider the expectations of the 'Australian Community'. Paragraph 8.5(1) of Direction 110 states:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australia community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

1. The first sentence of paragraph 8.5(1) reflects the rule of law as it applies to both citizens and non-citizens.[18] The remainder of paragraph 8.5(1) of Direction 110 sets out the expectations of the Australian community 'as a norm'. The effect of this is to deem what the expectations of the community are and thereby preclude the Tribunal from undertaking any assessment of what, in any factual circumstances, the actual expectations of the Australian community might be.[19] That proposition is encapsulated in paragraph 8.5(4) of Direction 110, which provides:

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.

1. The utility of this approach by the Australian Government, to assist decision-makers, is obvious. Paragraph 8.5(2) also provides guidance by stating:

In addition,.....non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not... 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:

1. This is supported by paragraph 8.5(3) of Direction 110 which states:

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.

1. The Tribunal acknowledges that, as set out in the sixth 'Principle' in paragraph 5.2(6) of Direction 110, Australia may have a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in Australia from a very young age and that the Applicant has been ordinarily resident in Australia since he was 5 years old. However, given the 'very serious' nature of the Applicant's offending, the Australia community would expect he should not continue to hold a visa: paragraph 8.5(2)(a) and (c) of Direction 110. Further, having regard to the evidence before it, the Tribunal considers that the Applicant has not sufficiently demonstrated that his risk of reoffending, and causing further harm, has been mitigated.
2. The Applicant has engaged in 'very serious' conduct in breach of the Australian community's expectation that non-citizens must obey Australia's laws while in Australia. Applying paragraph 8.5 of Direction 110, the Tribunal considers that the Australian community, 'as a norm', expects the Government to not allow the Applicant to remain in Australia in his particular circumstances.
3. For the above reasons, the Tribunal considers that the fifth 'primary consideration' (Expectations of the Australian community), in paragraph 8.5 of Direction 110, weighs heavily against revocation.

FIRST OTHER CONSIDERATION: Legal consequences of the decision (paragraph 9.1 of Direction 110)

Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable, in the circumstances specified in s 198 of the Migration Act, and in the meantime, detention under section 189, noting also that s 197C(1) of the Migration Act provides that, for the purposes of s 198 of the Migration Act, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful citizen.

1. That is, in considering the legal consequences of its decision whether to revoke the mandatory cancellation of a non-citizen's visa, paragraph 9.1(1) of Direction 110 requires the Tribunal must have regard to the statutory framework in which the power to revoke a mandatory cancellation decision exists, including the direct and immediate consequences of an exercise of the power, including any decision under s 105 of the ART Act.[20]
2. There are three major consequences of visa refusal or cancellation under s 501 of the Migration Act and related provisions:

(a) a prohibition, within the migration zone, on applying for other types of visas under > > s 501E of the Migration Act (other than a protection visa or a bridging (removal pending) visa);[21] > > (b) refusal/cancellation of other visa applications/visas under s 501F of the Migration Act; and > > (c) the possible application of periods of exclusion and special return criteria under s 503 of the Migration Act and SRC 5001 and 5002 in Sch 5 to the Migration Regulations. This includes permanent exclusion where SRC 5001 applies unless the Minister acts personally to grant a permanent visa to the person under s 195A of the Migration Act.

3. These adverse consequences can each be avoided by a positive decision to revoke the mandatory cancellation decision, and it should not be assumed that Parliament has evinced any preference as to the outcome of the review.[22]
4. The Tribunal acknowledges that:

...the legal consequence of a visa cancellation decision is that the former visa holder will be an unlawful citizen for the purposes of the Act. By virtue of that status, the person will be liable to be detained, removed from Australia, returned to his or her home country, prohibited from applying for another visa or subject to periods of exclusion and special return criteria: Act ss 189, 196, 197C, 198, 501E, 501F.[23]

1. In his 'Personal Circumstances Form,' dated 1 December 2023, the Applicant ticked 'yes' in response to the question 'Do you have any concerns or fears about what would happen to you if you were to return to your country of citizenship?': HB 126. The Applicant has identified these concerns as a fear that he would have mental anguish, no family, no job and no accommodation.
2. To the extent that non-refoulement obligations may arise on the evidence at the hearing, the Tribunal notes that it is open to the Applicant to make an application for a protection visa, during which any claim regarding Australia's non-refoulement obligations would be fully considered: paragraph 9.1.2(2) of Direction 110.[24]
3. If the Applicant applies for a protection visa, he would not be liable for removal until the protection visa application is finally determined: s 198(5A) of the Migration Act. Further, if during the protection visa process a protection finding is made in relation to him, he would not be liable for removal from Australia unless one of the events in s 197C(3)(c) of the Migration Act occurs. Therefore, it is open to the Applicant to make a protection visa application where any non-refoulement claims he wishes to make can be assessed and it can be determined whether a protection finding ought to be made.
4. Since the Applicant has not yet applied for a protection visa, s 197C(3) of the Migration Act is not presently engaged, and the immediate legal effect of the Tribunal's decision to affirm the decision not to revoke the mandatory cancellation of the Applicant's Visa would be that he is liable for removal from Australia as soon as reasonably practicable: s 198 of the Migration Act.
5. Further, if the mandatory cancellation of the Applicant's Visa is not revoked, the Applicant will be unable to satisfy the special return criteria in cl 5001(c) of Schedule 5 of the Migration Regulations and will accordingly be ineligible for most classes of visa that would enable him return to Australia.[25]
6. Whilst the Tribunal acknowledges that this is a relevant legal consequence that the Tribunal must take into account, in circumstances where the Applicant's removal and exclusion from Australia are intended purposes of the statutory scheme, and these purposes underlie the considerations in Direction 110, the Tribunal affords neutral weight in relation to revocation to this first 'other consideration' (Legal consequences of the decision) in paragraph 9.1 of Direction 110.

SECOND OTHER CONSIDERATION: Extent of impediments if removed (paragraph 9.2 of Direction 110)

1. Paragraph 9.2 of Direction 110 provides that the Tribunal must consider:

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

a) the non-citizen's age and health;

b) whether there are substantial language or cultural barriers; and

c) any social, medical and/or economic support available to the Applicant in their country.

1. The Applicant is currently 42 years old.
2. There is no evidence before the Tribunal to suggest that the Applicant suffers from any physical health conditions.
3. In relation to the Applicant's mental health, the Applicant submits that he has been diagnosed with depression and anxiety, for which he is currently prescribed 30mg of Mirtazapine (an anti-depressant). According to the Applicant:

I believe if I am to avoid reoffending I need to be around family & friends who know the signs of my mental health & can help me stay on track with my sobriety....

I have had mental health issues for many years. I don't believe I have been diagnosed correctly due to my heavy drinking/self medicating or not taking medication at all.

If I was returned to NZ I would struggle in every way. I have no family friends or support networks & I would have nothing. My mental health would be out of control and I would consider my life to be pretty much over. All I have ever known is in Australia.

Having no family would be my biggest problem, I have no idea what I will do if I could never see them again.

At the time of my offence, I had relapsed. I was drinking heavy and not taking medication for mental health. I spent 3 months in a rehab centre for alcohol addiction, When I do not drink I am a completely different person. With the help of my family I have steps in place to receive further help & support from professionals. I deeply regret my offending and what I did. My life will never be the same: HB 134, 140-141.

If I was removed from Australia the impact it would have...on myself...would be catastrophic: HB 144.

1. In the Parents Letter of Support, Mrs Bell states:

I am so fearful of [Bevan] being sent back to New Zealand. He has not been back to NZ since we left in 1998, he was only 5 years old. He knows no-one over [there] and more to the point no-one over there knows him so there would be no support to help him settle into a new life. It worries me he would start drinking and using drugs only to be able to cope with the day to day situations: HB 145.

Bevan is very worried about being sent back to NZ as he knows no one over there, he would have nowhere to live and no income. He has not been back to NZ since he left there at 5 years old: HB 363.

Bevans life if he can stay in his home country [i.e. Australia] is far greater than any rehabilitation options in New Zealand, a location he has not been back to visit since he was 5 years old. This could be a decision of life and death.

....A consequence of his battles with mental health has been self-medicating with alcohol, a habit we all greatly worry will re-establish itself more prominent[ly] (sic.) than ever if he is to be sent to New Zealand, a place where he has not been too (sic.) since he left at 5 years old. We worry deeply that all the positive progress Bevan has worked so hard to achieve will go away with no support network around him and with no way for us to be able to help him or visit him: HB 366.

1. There is no evidence before the Tribunal that the Applicant will experience substantial language or cultural barriers in New Zealand: paragraph 9.2(1)(b) of Direction 110.

1. As a citizen of New Zealand, the Applicant has the same access to social, medical and economic support as other New Zealand citizens.
2. The Minister further contends that the applicant would have access to the same level of medical, social welfare and economic support as what is generally available to other citizens in New Zealand: paragraph 9.2(1)(c) of Direction 110.
3. In this regard, the Minister notes the Tribunal's observation in VKTT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 649 at [428] per Deputy President Sosso that:

Australians and New Zealanders both speak the English language and are culturally almost indistinguishable. The legal and political structures of both societies are similar as are the medical and social welfare systems.

1. As such, any medical or allied health support which the Applicant may require to treat his depression and anxiety, or to abstain from alcohol use, would be available to him in New Zealand at a substantially similar level as would be available to him in Australia.
2. Whilst the Tribunal readily acknowledges that the Applicant may face some practical, financial and emotional hardship upon his return to New Zealand due to separation from his family and his social ties in Australia, the Tribunal considers that this should be given minimal weight in favour of revocation, especially in circumstances where the cultural, language and social variances between Australia and New Zealand are indistinguishable and where there are comparable standards of health care and social supports.
3. Further, whilst accepting that the Applicant will likely face some practical, financial and emotional hardship re-establishing himself, without his Australian support network, the Applicant has transferable skills and work experience which can lead to employment and a productive life in New Zealand: paragraph 9.2(1)(c) of Direction 110. Direction 110.
4. Accordingly, any practical, economic/financial, and emotional hardship/impediments the Applicant would face, if he is removed from Australia to New Zealand, will be limited in the long term.

Conclusion: Extent of impediments if removed (paragraph 9.2 of Direction 110)

1. As stated above, the second 'other consideration' is directed at whether a person can establish themselves and maintain 'basic living standards' if removed from Australia to their home country: paragraph 9.2(1) of Direction 110.
2. For the above reasons, the Tribunal considers that the Applicant would be able to establish himself and maintain 'basic living standards' if removed from Australia to New Zealand and, therefore, the second 'other consideration' (Extent of impediments if removed), in paragraph 9.2 of Direction 110, carries limited weight in favour of revocation.

THIRD OTHER CONSIDERATION: Impact on Australian business interests (paragraph 9.3 of Direction 110)

1. Paragraph 9.3(1) of Direction 110 provides that the Tribunal must consider any impact on Australian business interests if the non-citizen is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under s 501 or s 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
2. The Applicant submits that he has been gainfully employed for the last 20 years, during which time he paid his taxes and was not a burden on Australian taxpayers: HB 101. However, the Tribunal considers that this consideration should be given neutral weight in circumstances where the Applicant's evidence concerns past employment links which do not relate to the delivery of a major project or important services in Australia: paragraph 9.3(1) of Direction 110.
3. Consequently, the Tribunal considers that the third 'other consideration' (Impact on Australian business interests), in paragraph 9.3 of Direction 110, carries neutral weight in relation to revocation.

1. For the above reasons, in relation to the five 'primary considerations' (in section 8 of Part 2 to Direction 110), the Tribunal concludes:

(a) Protection of the Australian community (paragraph 8.1 of Direction 110) - weighs heavily against revocation; > > (b) Family violence committed by the non-citizen (paragraph 8.2 of Direction 110) - weighs heavily against revocation; > > (c) The strength, nature and duration of ties to Australia (paragraph 8.3 of Direction 110) - weighs heavily in favour of revocation; > > (d) Best interests of minor children in Australia affected by the decision (paragraph 8.4 of Direction 110) - weighs moderately in favour of revocation; and > > (e) expectations of the Australian community (paragraph 8.5 of Direction 110) - weighs heavily against revocation.

2. For the above reasons, in relation to the three 'other considerations' (in section 9 of Part 2 to Direction 110), the Tribunal concludes:

(a) Legal consequences of the decision (paragraph 9.1 of Direction 110) - carries neutral weight in relation to revocation; > > (b) Extent of impediments if removed (paragraph 9.2 of Direction 110) - carries limited weight in favour of revocation; and > > (c) Impact on Australian business interests (paragraph 9.3 of Direction 110) - carries neutral weight in relation to revocation.

3. Informed by the "Principles" in paragraph 5.2 of Direction 110, and having weighed the considerations in favour of revocation and the considerations against revocation, the Tribunal concludes that, on balance, in this case, the first 'primary consideration' (Protection of the Australian community), in paragraph 8.1 of Direction 110, the second 'primary consideration' (Family violence committed by the non-citizen), in paragraph 8.2 of Direction 110), and the fifth 'primary consideration' (Expectations of the Australian community), in paragraph 8.5 of Direction 110, carry greater weight than the 'primary considerations' which weigh in favour of revocation, namely the third 'primary consideration' (Strength, nature and duration of ties to Australia), in paragraph 8.3 of Direction 110, and the fourth 'primary consideration' (Best interests of minor children in Australia affected by the decision) and the second 'other consideration' (Extent of impediments if removed), in paragraph 9.2 of Direction 110, which carries limited weight in favour of revocation.
4. In reaching this conclusion, the Tribunal notes that, as stated above (at [28]), paragraph 7(2) of Direction 110 states that the first 'primary consideration' (Protection of the Australian community), in paragraph 8.1 of Direction 110, is generally given greater weight than the other four 'primary considerations' and that, otherwise, the 'primary considerations' (in section 8 of Part 2 of Direction 110) should generally be given greater weight than the three 'other considerations' (in section 9 of Part 2 of Direction 110).
5. For the above reasons, the Tribunal is not satisfied that there is 'another reason' why the mandatory cancellation of the Applicant's Visa should be revoked.

1. For the above reasons, the Tribunal affirms the decision under review.

I certify that the preceding one hundred and ninety-two (192) paragraphs are a true copy of the reasons for the decision herein of Senior Member Chelsea Lyford

[1] The joint Hearing Book, comprising 500 pages, was marked as 'Exhibit 1' at the hearing of this application on 4 August 2025 (HB).

[2] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at [63].

[3] Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338.

[4] Administrative Review Tribunal Act 2024 (ART Act), s 56(1)(a); Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 (Drake (No 2)) at 636; Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286 at [140]; CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138 at [35].

[5] Au v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCAFC 125 at [21]- [26].

[6] See also Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398 at [13]-[15]; Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11; (2024) 94 ALJR 594 at [6].

[7] See LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 at [33].

[8] See Minister for Home Affairs v G [2019] FCAFC 79; (2019) 266 FCR 569; Lasalo v Minister for Immigration, Citizenship and Multicultural Affairs [2025] FCAFC 82 at [27].

[9] https://minister.homeaffairs.gov.au/AndrewGiles/Pages/ministerial-direction-110-signed-07062024.aspx. See also Acts Interpretation Act 1901 (Cth), s 15AB.

[10] Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 262 CLR 333 at [94].

[11] Minister for Immigration Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313 at [42]; Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at [5], [44], [102], and [104].

[12] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22]; Pavey and Minister for Home Affairs [2019] AATA 4198 at [44].

[13] BNY23 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2025] FCA 608 at [107]; Siale v Minister for Immigration and Citizenship [2025] FCA 608 at [34]; Minister for Immigration and Multicultural Affairs v Peralta Montes [2025] FCA 667 at [89]- [90].

[14] See Re RRRB and Minister for Immigration and Multicultural Affairs [2025] ARTA 471 at [74].

[15] Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 at [33]- [36].

[16] Main v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 446 at [30].

[17] Re MBBG and Minister for Immigration and Multicultural Affairs [2025] ARTA 53 at [80]-[86].

[18] FYBR v Minister for Home Affairs [2019] FCAFC 185 (FYBR) at [69]-[70].

[19] FYBR at [67] and [92]-[93].

[20] NBMZ v Minister for Immigration and Border Protection [2014] FCAFC 38; (2014) 220 FCR 1 at [3], [9] and [10]; Taulahi v Minister for Immigration and Border Protection [2016] FCAFC 177; (2016) 246 FCR 146 at [84] and [88].

[21] See also s 46(1)(d) of the Migration Act.

[22] See Stoneley and Minister for Immigration and Multicultural Affairs [2025] FCA 143 at [36].

[24] Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [30] per Kiefel CJ, Keane, Gordon and Steward JJ.

[25] Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003 per Feutrill J at [12]-[14].

[26] In accordance with the decisions of the High Court in Minister for Immigration, Citizenship, Migration Services and Multicultural Affairs v Thornton [2023] HCA 17 and Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6, the Tribunal has not had regard to any offending for which the Applicant received no conviction.