1. At the commencement of the Hearing, I sought and received the parties' approval to a draft Exhibit List that had been circulated to them prior to the Hearing. To the best of my understanding, that duly agreed draft Exhibit List now attached to these Reasons and marked 'ANNEXURE A' can be accepted as a true and correct summary of the entirety of the material before the Tribunal for present purposes.

1. There are two issues before the Tribunal. The first is whether the Applicant passes the character test. It is beyond argument he does not do so. In March 2023 at a District Court of an Australian mainland state, the Applicant received a head sentence of two years and six months for one count of "choking suffocation strangulation associated domestic violence."[5] On this conviction alone, the Applicant does not pass the character test as a matter of law.[6] He has received a sentence of imprisonment of 12 months or more[7] and thus has a "substantial criminal record"[8] which, in turn, compels this Tribunal to find he does not pass the character test.
2. The second issue is whether there is another reason why the decision under review should be revoked. In considering whether there is another reason to revoke the mandatory cancellation of the Applicant's Visa,[9] the Tribunal is bound by section 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction 110[10] has application. For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen's visa, the Direction contains several principles that must inform a decision maker's application of the considerations relevant to the decision. The principles found in paragraph 5.2 of the Direction 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 non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community. > > (2) The safety of the Australian Community is the highest priority of the Australian Government. > > (3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia. > > (4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen 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-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. > > (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 noncitizen does not pose a measurable risk of causing physical harm to the Australian community.

3. Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
   1. protection of the Australian community from criminal or other serious conduct;
   2. whether the conduct engaged in constituted family violence;
   3. the strength, nature and duration of ties to Australia;
   4. the best interests of minor children in Australia; and
   5. expectations of the Australian community.
4. Paragraph 9 of the Direction sets out three Other Considerations which must be taken into account. These considerations are:

a) legal consequences of the decision; > > b) extent of impediments if removed; and > > c) impact on Australian business interests.

PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

The Nature and Seriousness of the Applicant's conduct

1. The nature and extent of the Applicant's criminal offending is helpfully summarised in the Respondent's Statement of Facts, Issues and Contentions.[11] ("SFIC") His criminal history records the commission of 14 offences that were dealt with at five separate sentencing episodes between August 2019 and March 2023. His criminal offending has been committed in the realms of:
   • - contravening a Police banning notice (x2);
   • - failing to appear in accordance with an undertaking to do so (x1);
   • - contravention of domestic violence order ('DVO') (x1);
   • - assaults occasioning bodily harm - domestic violence offence (x1);
   • - breach of bail condition (x3);
   • - contravention of domestic violence order - aggravated offence (x1);
   • - common assault (x1);
   • - assaults occasioning bodily harm whilst in company (x1);
   • - assaults occasioning bodily harm - domestic violence offence (x2);
   • - suffocation strangulation associated domestic violence offence (x1).

1. The nature of sentences imposed on the Applicant have been varied. They comprise:

   • - non-recording of a conviction and the imposition of a fine (x3);
   • - recording of conviction and the imposition of a period of probation (x3);
   • - the imposition of a nine-month custodial term;
   • - the imposition of a two year custodial term;
   • - the imposition of a custodial term of two years and six months.

2. The Applicant has also compiled a not-insignificant traffic history. In terms of actual infringements, it runs from March 2018 to November2020. Across between two and three years of driving, the Applicant accumulated 12 demerit points, incurred two six month disqualifications from driving due to excessive demerit points accumulation and he also incurred a further six month disqualification from driving due to unlicensed driving. He has also had - on three occasions - a late-night driving restriction imposed on him. Each of those three restrictions was for 12 months.

3. The Applicant has convictions conduct for crimes of a violence[12] and for crimes of a violent nature against a woman.[13] His conduct also qualifies as acts of domestic violence for which a sentence was imposed.[14] The Direction makes clear that such conduct is viewed very seriously by the Australian Government and its constituent community. There is little or nothing to cavil with the proposition and finding that such conduct must now be labelled with the very serious descriptor as referred in the chapeau to paragraph 8.1.1(1)(a) of the Direction.

1. The Applicant's criminal history also records two convictions for "contravene Police banning notice" which, at first blush, might be thought to constitute crimes against government officials in the performance of their duties.[15] Such conduct is mandated to be "serious" by the Direction. However, at the instant Hearing, it was brought to my attention by the Respondent's representative that this conduct did not involve any actual violence against a police officer or any directly (i.e. face-to-face) refusal to follow a police officer's direction. The conduct is more in the form of the Applicant contravening a banning notice that had the effect of precluding the Applicant's presence or attendance at a particular venue. As such, I will not cause this conduct to engage the terms of the Direction. While his convictions for violent offending against a woman and for family violence conduct are precluded for being taken into account for the present exercise,[16] the sentence he received (at the same sentencing hearing) for violent offending simpliciter can be[17]. His sentence of nine months of head custodial time for "assaults occasioning bodily harm whilst armed / in company" and the recording of a conviction and accompanying 18 month probation order for "common assault" are, taken together, sentences that speak to the very serious nature of the totality of the Applicant's conduct in this country.
2. Without question, the Applicant's very serious conduct has impacted at least one victim. One need look no further than the remarks of the learned sentencing Judge who dealt with the Applicant at a District Court of an Australian mainland state in March 2023. His Honour noted:

'What happened here is really quite confronting. The complainant, who was of a similar age to you, it seems, did not make a formal complaint until the beginning of 2022 for offending which you had perpetrated against her in July 2021. You had commenced your relationship with her in November 2019, and within four months, an order was made against you to provide for her protection. In addition to the standard condition of being of good behaviour toward her and to not commit acts of domestic violence against her, there was an ouster order made, and you were further prohibited from contacting or attempting to contact her or getting someone else to, unless it was a lawyer.

There is an agreement here today to extend the terms of that order for a further period of time. In any event, in complete defiance of that order designed to provide for her protection and knowing now what you had done to her in April, you both went to the Treasury Casino to watch a sporting match. Following that, you went home, and there was a discussion about work, and she told you that she was disappointed because you were not working. Your response was to grab her by her hair from where she was sitting on a bed and drag her across the floor such that clumps of her hair came out of her head. She laid on her side on the ground, and you punched her between 10 to 15 times to the right side of her face, and also to her back, which caused bruising and swelling to her face. The photographs certainly bear out an attack of that ferocity.

You, in count 2, then bit her on her left lower leg - to her calf. You broke the skin and left teeth marks there. She screamed at you to get off her, and you then proceeded to commit the offence in count 3. You put your heads [sic - should be 'hands'] around her neck and squeezed. You applied pressure to her neck. She was unable to scream, and she, naturally, thought that you were going to kill her. Choking, of course, has been seen to be a precursor to domestic homicide. Eventually, she managed to get free of your grasp and to run outside. You came outside and completed the cycle of domestic violence by saying you were sorry and that you would not do it again. She had to call in sick so that others would not see her injuries. The police actually attempted to check on her. She did not want to make a formal complaint about you. You said you were going to change.

She had to go to the hospital, though, because the bite that you had caused to her leg became infected, and, once again, she did not make a report. She discharged herself against medical advice, but notes were made as to the injury that had been caused. As I say, she provided a statement then in January 2022, and the police came to see you in jail in July of last year, and you exercised your right to silence and were arrested.

I have had regard to the objective features of your offending. I have had regard, as I must, also, following the provision of section 9 of the [specific name of legislation redacted] Act, to the victim impact material, in addition to photographs which spell out extensive bruising and injury, the victim impact statement is quite an eloquent document. I was not told whether you have read it or whether you broke down in tears when it was read to you, but she says some really powerful things. She says, for instance:

It is hard to understand domestic violence unless you have experienced it. I still look back to this day and question could I have done something different.

Even writing this is extremely hard. It's as if I am reliving it all again. All the pain, all the emotions, everything I've tried so hard to forget about.

She says that instead of someone who was supposed to love her and protect her, she was terrified of you and that she believed that it was her fault that you were doing these things and that you were just angry because of your upbringing. She, importantly, says that she does not hate you - she just feels sorry for you - and that she is sorry that you lack so much sympathy and remorse.'[18]

1. I am satisfied the Applicant was afforded procedural fairness when the above-quoted impacts of his conduct on the victim were put to him. I am also satisfied that these impacts on the victim[19] most certainly speak to the very serious nature of his conduct.
2. I am similarly satisfied that the Applicant is both a frequent offender and that there is a trend of increasing seriousness to his offending.[20] As mentioned earlier, his criminal history (in terms of sentencing dates) runs from August 2019 to March 2023. During that period he contrived to commit 14 offences which is offending at the rate of more than three offences a year. He found himself before sentencing Courts on five occasions during that period which is more than one sentencing episode per year. This is plainly frequent offending. It is also offending which is escalating in seriousness. His first four convictions involved (1) not complying with reasonable lawful requests from police; (2) breaching an undertaking to appear; and (3) contravening a DVO. Thereafter, the offending becomes significantly more serious because it involved very serious violent conduct. The frequency of the Applicant's offending and its redolent increasing seriousness are factors that now speak to the very serious nature of the totality of his conduct.
3. The Applicant's repeated offending also demonstrates specific cumulative effects each of which now speak to the very serious nature of his offending.[21] First, he is a person who has failed to demonstrate any level of respect for lawful authority. He has breached an order for bail, an undertaking to appear and a DVO. He simply has not understood the lawful basis upon which such documents compel him to do or refrain from doing something. Second, he has failed to experience any deterrent effect from the progressive regime of sentencing that has been imposed on him. His first six convictions did not involve incarceration. He learnt nothing from these non-custodial sentences. His next three sentences involved the imposition of, respectively, head custodial time for nine months, then two years, then two and a half years.
4. Third, he has failed to understand the responsibilities attaching to the privilege of being licensed to drive a motor vehicle on Australian carriageways. Elsewhere, I have spoken of the significant risk to other road users that can result from the irresponsible and/or unlawful driving, management and control of a motor vehicle.[22] Regulators have intentionally placed laws and regulations around the privilege of driving. The Applicant has abjectly failed to appreciate that those laws and regulations must be complied with, not just for the sake of compliance, but for the more important sake of the safety of other road users.
5. Fourth, the Applicant's offending has involved very serious and significant transgressions against the personal rights of others. This is demonstrative of a person who has not appreciated that one's personal space is their own. It is also demonstrative of his predisposition towards violence rather than reasonableness as a basis of resolving difficult moments in his life. Fifth, offending of the frequency and seriousness of that committed by this Applicant has, on any reasonable view, consumed more than its fair share of the community's policing, judicial sentencing and custodial resources.

Conclusion about the nature and seriousness of the Applicant's conduct

1. I have sought to apply the relevant paragraphs of the Direction relevant to the Applicant's conduct as a means of assessing its overall nature and seriousness.[23] Based upon the findings I have made, I am comfortably satisfied that the totality of the Applicant's offending can now be found to be 'very serious.'

The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

1. Sub-paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
2. Sub-paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:

(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

i. information and evidence on the risk of the non-citizen re-offending; and

ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence ...; and

(c) where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

Sub-paragraph 8.1.2(2)(a): the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

1. Were the Applicant to re-commit his violent offending, it is not at all an unreasonable stretch of the evidence to suggest, and find, that a victim would suffer significant physical and psychological harm, even to a catastrophic level. Were he to re-commit his offending in the realm of driving a motor vehicle, serious and potentially catastrophic harm could be occasioned to other road users. Were he to again embark on a frequent and increasingly level of unlawful conduct, an undue amount of the community's policing, judicial sentencing and custodial resources would again be consumed.
2. I will therefore find that of the harm to individuals and/or the Australian community resulting from further unlawful conduct committed by this Applicant would range from physical, psychological and potentially catastrophic harm to one of its victims. Further, pursuant to sub-paragraph 8.1.2(1) of the Direction, I am satisfied that the harm resulting from repeated offending[24] of the type already committed by this Applicant is so serious that any risk of such recommission should now be found to be unacceptable.

Sub-paragraph 8.2.2(b): the likelihood of the non-citizen engaging in further criminal or other serious conduct

1. The Tribunal has the benefit of the oral and written expert evidence of the Consultant Psychologist, Dr James Freeman. His starting point was that past behaviour is often the best predictor of future behaviour. He diagnosed the Applicant with (1) alcohol dependency disorder (in sustained remission); (2) cocaine use disorder (in sustained remission); and (3) adjustment disorder (with anxious distress). He identified that the Applicant's substance abuse impaired his decision making and resulted in the Applicant's inability to satisfactorily (and lawfully) deal with emotional stressors and other contributory elements to his offending.
2. Dr Freeman applied three actuarial risk assessment tools and concluded that the Applicant now represents a low risk of reoffending (upon application of two of those tools) and that he represents a medium risk upon application of the third tool. Rather predictably, Dr Freeman is of the view that much of any certainty around the Applicant's recidivist risk is critically dependant upon his ability to maintain a prolonged period of abstinence from substance abuse. In this regard, the material contains a list of rehabilitative courses and similar engagements made by the Applicant during his time in either prison or immigration detention. He professes sobriety from all substances (i.e. alcohol and illicit drugs) for all of the time he has spent in prison and immigration detention.
3. Be that as it may, the harsh reality is that this claimed abstinence has been achieved in the heavily regulated confines of prison and then immigration detention. His capacity to so abstain remains to be tested in the broader community where these substances - both legal and illegal - will be much more freely available to him. He has failed to abstain while in the community in the past and the pivotal question for present purposes is whether he will be able to do so in future. This question can be answered by several factors. First, Dr Freeman makes clear that his capacity to maintain a low recidivist risk in the community is almost entirely dependant on him maintaining a sustained pattern of abstinence. Second, there is the Applicant's own evidence which is informed by the realities of the time he has spent in prison and immigration detention and a further reality that any recommencement of his offending pattern and consequential sentencing could very well re-trigger the mandatory cancellation of his visa.
4. Third, it is necessary to look for any protective factors that could now militate in favour of a reliably low level of recidivist risk. He spoke of an intention to seek remunerative employment in the finance industry but this, in and of itself, is a matter of concern from the perspective of recidivist risk. This is because the Applicant has conceded that using cocaine has, in the past, assisted him with maintaining a confident demeanour and presentation when he was previously involved in employment involving sales and marketing. The retail sale of financial products is work that requires a sales person to have persuasive and convincing qualities and it is not unreasonable to suggest the Applicant could return to cocaine use as a means of maintaining the necessary edge to his personality to effectively work in the promotion and sale of finance products.
5. On a personal front, the Applicant has a relatively new relationship with Ms EM and, together, they have recently had a child. She gave supportive evidence of the Applicant and told the instant hearing that despite knowing of his past conduct towards at least one other domestic partner, she had no concern or compunction about initially becoming involved in a domestic relationship with him and staying in that relationship with him into the future. The capacity of that relationship to endure into the future remains a work in progress because he and she have spent barely six months physically together in the community since the relationship began. It is notable that the Applicant's previous relationship with a domestic partner (and then victim) of his very serious domestically violent conduct commenced in similar circumstances of urgent or rapid commitment where romantic interest and passion was prioritised above a proper and cautious assessment of the partner as a person with whom to enter into a lengthy and meaningful relationship.
6. The Applicant's professed remorse should be received with circumspection and caution. When dealing with the Applicant in March 2023 at a District Court of an Australian mainland state, the learned sentencing Judge noted the Applicant initially told the victim he was going to change his violent ways of dealing with life's contingencies in any relationship but that he failed to do so. The learned sentencing Judge also made a note of - and appeared to agree with - the feelings of the victim who expressed her sorrow that the Applicant lacked '...so much sympathy and remorse.' Critically for present purposes, the learned sentencing Judge said 'I have had regard to the matters in s 9 of the [name of legislation redacted] Act and the very serious nature of your offending here. I am not prepared to accept that your plea of guilty in indicative of any expression of remorse. There is nothing that would seem to indicate that to me. The explanation provided was that the relationship was toxic; you were using drugs and alcohol, and that somehow has caused you to behave in such a monstrous fashion.'[25] [My emphasis].
7. I am not of the view that the Applicant's evidence to either the previous Tribunal (differently constituted) or to the instant Hearing, displaces the presumption that he is, for all intents and purposes, purporting to contextualise his claimed remorse. This contextualised remorse has been focused on the consequences his conduct has caused for him rather than it demonstrating a genuinely held appreciation of how his manipulative demeanour has lured at least two partners into rapidly committed relationships where his focus has involved convincing a partner into a rapidly committed relationship and to then workout any difficulties arising from or within the relationship later. The significant impact of unresolved and illicit substance abuse on his capacity to peacefully and lawfully resolve those exigencies and difficulties lie at the heart of his past very serious offending.
8. It is concerning that the evidence does not now facilitate anything convincing about his capacity to maintain a pattern of abstinence from substance abuse in the general community. In other words, one cannot reach any state of reasonable satisfaction that were he to be presented with relationship difficulties into the future, his capacity to effectively manage those difficulties would be any different to what has occurred in the past. The only safe finding about recidivist risk is to adopt an amalgam of Dr Freeman's assessments of, respectively, 'low' and 'medium.'
9. In terms of recidivist risk, I will conclude this Applicant represents a low-medium recidivist risk if now returned to the community. To this finding, it is inevitably necessary to add a cautionary element such that this low-medium recidivist risk is unacceptable because the harm that would be caused if his offending (and not just to a domestic partner victim) were to be repeated, is so serious that even a low-medium recidivist risk should now be found to be unacceptable.

1. The Direction also contains a reference to sub-paragraph 8.1.2(2)(c). With reference to this specific sub-paragraph, this matter does not involve a 'refusal to grant a visa to a non-citizen'. It involves an application for the 'revocation' of a decision refusing to revoke the earlier mandatory cancellation of the Applicant's visa. This specific paragraph is not relevant to the determination of this application.

1. With reference to the weight attributable to this Primary Consideration 1:

a) I have found that the nature and seriousness of the totality of the Applicant's conduct to date has been very serious; > > b) I have found that the nature of the harm to individuals and/or the Australian community resulting from further unlawful conduct committed by this Applicant would range from physical, psychological and potentially catastrophic harm to one of its victims. To this finding it is inevitably necessary to add a cautionary element such that were the Applicant to repeat his pattern of violent offending, the harmful impact on any victim (and not just a domestic partner victim) would be so serious as to now be found to be unacceptable; and > > c) in terms of risk profile, I have assessed that the Applicant represents a low-medium recidivist risk of reoffending. I have reached this recidivist risk finding with the Direction's dictum that the safety of the Australian community is "...the highest priority of the Australian Government"[26] at the forefront of my mind.

My analysis of the material leads me to a finding that this Primary Consideration 1 confers a very heavy level of weight in favour of this Tribunal affirming the decision under review.

1. Paragraph 8.2 of the Direction provides:
   1. The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
   2. This consideration is relevant in circumstances where:

a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or > > b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

3. In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:

a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness; > > b) the cumulative effect of repeated acts of family violence; > > c) rehabilitation achieved at time of decision since the person's last known act of family violence, including: > > 1. the extent to which the person accepts responsibility for their family violence related conduct; > 2. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children); > 3. efforts to address factors which contributed to their conduct; and > > d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non- citizen's migration status, should the non-citizen engage in further acts of family violence.

2. The Applicant cannot cavil with the reality that this Primary Consideration 2 is engaged for present purposes. In his most recent statement appearing in the material as Exhibit A1, he readily accepts his domestically violent conduct and concedes that: 'What I did was inexcusable. I acted out of anger during an argument, and instead of walking away or calming myself down, I reacted violently.'[27] Further, he accepts that 'I let my own fear and selfishness override her safety...but I understand that nothing can undo the harm I caused...'[28]
3. Paragraph 8.2 of the Direction compels two additional inquiries: (1) it is necessary to ascertain who was a member of the Applicant's family? and (2) whether any of the Applicant's conduct against any such family member amounts to family violence for present purposes? I will address each question in turn.

1. Paragraph 4(1) of the Direction defines family violence to mean "...violent, threatening or other behaviour by a person that coerces or controls a member of the person's family...or causes the family member to be fearful." The Direction (at paragraph 4.1) defines "member of a person's family" to include "...a person who has, or has had, an intimate personal relationship with the relevant person." I am satisfied that the domestic partner / victim of the Applicant's conduct for which he was sentenced in May 2022 and March 2023 was a member of the Applicant's family for present purposes. I do not understand the Applicant's evidence to indicate anything to the contrary.

Did any of the Applicant's conduct constitute family violence?

1. As mentioned, 'Family violence' in the Direction is defined as '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'. This definition poses two separate questions:
   • was the Applicant's conduct violent, threatening, or other behaviour that coerced or controlled a member of his family?
   • was the Applicant's conduct violent, threatening, or other behaviour that caused a family member to be fearful?
2. It is plain from the circumstances of the Applicant's domestically violent conduct that it was committed in the context of a domestic relationship he conducted with the victim at the relevant time. Even a cursory reading of the above-quoted remarks of the learned sentencing Judge, indicates this conduct easily meets the threshold of 'conduct comprising violent, threatening or other behaviour' that caused the domestic partner / victim to be fearful. I will find that it was conduct that was 'violent, threatening...that caused [the victim] to be fearful.' I am satisfied that his conduct giving rise to his convictions in May 2022 and March 2023 does comprise domestic violence for present purposes.

Is the Applicant's conduct captured by paragraph 8.2 of the Direction?

1. The Applicant's family violence conduct was the subject of at least five convictions imposed on him in May 2022 and March 2023. There is no denying that these charges were proffered as domestic violence-type charges and he was sentenced on the basis of family violence committed in the context of a domestic relationship. Accordingly, this conduct must now be found to safely fall within the auspices of paragraph 8.2(2)(a) comprising conduct culminating in the Applicant having '...been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence.' [My emphasis].
2. I will therefore find that (1) the Applicant's conduct towards his domestic partner comprises family violence against that victim; and (2) this Primary Consideration is relevant to determination of the instant application.

Assessment of the seriousness of the Applicant's family violence conduct

1. I will now consider each of the factors in paragraph 8.2(3)(a)-(d) in turn for the purposes of assessing the nature and seriousness of the Applicant's family violence conduct.
2. Paragraph 8.2(3)(a): requires an analysis of the frequency of the Applicant's family violence conduct and/or whether there is any trend of increasing seriousness. The Applicant's domestically violent conduct has been frequent and it does demonstrate a trend of increasing seriousness. He has committed at least six domestically violent offences across a period of roughly a year. This is clearly frequent offending. His first domestic violence conviction was for contravening a DVO. But after that, the following five convictions were for very serious offending against the person of a domestic partner victim. The frequency and increasing seriousness of the Applicant's domestically violent conduct both point to the very serious overall nature of his conduct in this regard.
3. Paragraph 8.2(3)(b): requires consideration of the cumulative effect of repeated acts of family violence. One does not need to descend into the graphic detail of the physical and psychological impact of the Applicant's family violence offending on his victim. At a broader level, the Respondent's reference to the 'National Plan to Reduce Violence against Women and their Children 2022-2032'[29] is worth repeating: '...violence against women and children is a problem of epidemic proportions in Australia and on average a woman is killed by an intimate partner every day 10 days. Violence against women and their children resulted in an overall economic cost of $26 billion in 2015-16, with victims bearing approximately 50 per cent of that cost.'[30] The cumulative effect of the Applicant's offending does now speak to the very serious nature of his domestically violent offending.
4. Paragraph 8.2(3)(c): requires consideration of any rehabilitation achieved by the Applicant at the time of my decision since his last known act of family violence. This sub-paragraph compels three enquiries:

(i) first, sub-paragraph 8.2(3)(c)(i) looks for the extent to which the Applicant has accepted responsibility for his family violence related conduct. As noted earlier, the Applicant has expressed '...my deepest remorse for the serious harm I caused to my former partner...' He has also acknowledged that 'What I did was inexcusable...This is something I will carry with shame for the rest of my life.' I will cautiously note the Applicant has accepted at least some measure of responsibility for his family violence related conduct;

(ii) second, sub-paragraph 8.2(3)(c)(ii) seeks to understand the extent to which a non-citizen comprehends the impact of their behaviour on the abused person. I have recounted the Applicant's words that 'I let my own fear and selfishness override her safety...but I understand that nothing can undo the harm I caused in that moment.' He goes on to say 'I...take full responsibilty for what I did...I now understand and accept that my actions that day were completely unacceptable, violent and deeply harmful.'[31] I will cautiously note that this Applicant has a level of comprehension about the impact of his behaviour on his former partner/victim; and

(iii) third, sub-paragraph 8.2(3)(c)(iii) seeks to identify efforts made by a non-citizen to address the factors which contributed to their family violence conduct. The Applicant says 'Since the last AAT hearing, I have grown significantly in my faith. I've deepened my connection with God and turned to the Bible as my guide through life...The counselling sessions and programs I've completed have helped me identify my triggers and taught me how to manage my emotions in healthier ways.'[32] He refers to his completion of 'The Respectful Man course has taught me the importance of truly listening in relationships. I've learned [sic] that a healthy relationship starts with respect and understanding, and being a good listener is key to that.'[33] As I have earlier found with regard to recidivist risk, this claimed rehabilitation should be received cautiously because the Applicant's capacity to maintain any sustained pattern of abstinence from substance abuse remains to be tested in the general community.

1. Sub-paragraph 8.2(3)(d): raises the question of whether the Applicant has, 're-offended since being formally warned, or otherwise since being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence'. The material contains a Protection Order made on 11 March 2020.[34] It ran to 11 March 2025. That initial Order was varied[35] such as to be extended to 23 March 2028. When the initial Protection Order was made on 11 March 2020, it contained a three page 'EXPLANATION OF DOMESTIC VIOLENCE ORDER - FOR RESPONDENT' document.[36]
2. On the third page of that 'EXPLANATION OF DOMESTIC VIOLENCE ORDER' document, the following appears:

'CONTRAVENTION OF ORDER: If you contravene any conditions of this order, you commit an offence against the Act, and you may receive a penalty of up to 3 years imprisonment for the first offence in a 5 year period and 5 years imprisonment for subsequent offences within a 5 year period .

NOTE: If this order is contravened in another State or Territory of Australia, you may be subject to penalties imposed in that State or Territory.'

1. Despite this clear and unequivocal warning about the consequences of breaching this Order provided to the Applicant in March 2020, he nevertheless proceeded to contravene that Order for which he was convicted in July 2021; he again breached that Order (with circumstances of aggravation) for which he was convicted in May 2022; he was convicted (in March 2023) on two counts of 'assaults occasioning bodily harm - domestic violence offence'; and he was convicted (in March 2023) on one count of 'choking, suffocation, strangulation, associated domestic violence.'
2. There is no escaping a finding that this Applicant has re-offended since being formally warned by a Court via its lawfully made Order about the consequences of further acts of family violence. This reality points to the very serious nature of his family violence now before the Tribunal.

1. Taking into account my findings about the various components of paragraph 8.2(3)(a)-(d) referable to the Applicant's domestic and family violence conduct, I am of the view (and I find) that this Primary Consideration 2 confers a very heavy level of weight in favour of this Tribunal affirming the decision under review.

PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

1. The subsequent paragraph 8.3(2) also stipulates that in the assessment of any other ties that a non-citizen may have in Australia, the decision-maker 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.

(b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

The evidence around the Applicant's ties to Australia.

1. The Applicant first came to Australia in June 2009 at the age of nine years. He has resided here for about 16 years from the ages of nine to 25. In terms of schooling he completed years 3 to 12 in Australia. He has done studies towards obtaining a Certificate IV in Finance and Mortgage Broking. He commenced these studies in 2021. In a previous submission to the Respondent's Department seeking revocation of the initial mandatory cancellation decision, it was contended that the Applicant is:

'...tightly integrated into his local regional community, has positively

contributed to the Australian economy, is settled in Australia and maintains strong ties to the following Australian citizens and Australian permanent residents:

a. De facto partner - Ms EM - Australian citizen;

i. Niece - Child N - Australian citizen.'[37]

1. In this same previous document, the Applicant refers to his relationship with Ms EM in these terms:

"My current relationship with my fiancé Ms EM and our son Child K

I am in a serious relationship with Ms EM. We have a beautiful relationship, and are blessed to have a son together, Child K. He is growing by the day and I am so proud of him. He just started clapping the other day, and it fills me with joy, but also sadness because I can't be there with him.

I am in contact with them every day - phone calls, Facetime, messenger. When I was in jail, they would visit me every week. Now that I am in Brisbane, they can't visit me in person, so we rely on phone and video calls to maintain contact with each other.[38]

Ms EM and I have been in a relationship since December 2021, and we became engaged on 29 September 2022. I have never committed family violence against Ms EM or my son Child K."[39]

1. Ms EM also gave oral evidence to the instant Hearing. Her evidence-in-chief was initially led by the Applicant and she was then cross-examined. She spoke of being 22 years of age and that she resides in a southern suburb of the Brisbane region having moved to that location about a year ago. She works in the aged care sector and first took on this work after the birth of Child K. She has only been working in this field for only about two or three months. She works two days per week and Child K goes to day care while she is working. She does not have any family members residing in the Brisbane area. Her mother resides at Mt Tamborine which is about 30 minutes' driving time from her. In relation to her father, she said she had been estranged from him for about five years but that they have recently begun talking again. He lives in the Broadbeach area of the Gold Coast. He has recently started assisting her again by proving emotional support and some logistical support in relation to Child K.
2. In addition to her income from her work in aged care, she receives social security benefits in the form of (1) parenting payment (single); (2) family tax benefit; and (3) rental assistance. She said that she remained in contact with members of the Applicant's family including the Applicant's mother and step-father. She is also contact with the ex-partner of the Applicant's brother. When she communicates with the Applicant's mother, it is mostly in Portuguese. She agreed that she initially met the Applicant at the end of 2023 and that they moved in together about a couple of months later in February 2024. She says they lived together for several months until he went to prison in May 2024.
3. She agreed that when she initially moved in to live with him in February 2024, they were both drinking a lot of alcohol but at that time they moved to Rockhampton and were both working while at the same time they were trying to have a baby. She said these factors led to a gradual reduction in their consumption of alcohol. She was asked if, in the event of the Applicant's compelled return to Brazil, whether she and Child K would return with him. She responded in equivocal terms and described it as 'a really scary thought.' She concluded her evidence in cross-examination by saying if she could not relocate to Brazil with the Applicant, she would at least try to visit him with Child K.
4. There followed some questions from me. First, I asked her about her work-related intentions and she spoke of gradually transitioning out of work in aged care with the intention of completing necessary study to become a veterinary nurse because she has had a lifelong love of animals and always wanted to be a veterinary surgeon. Second, I asked her about whether, in the event of a negative outcome for the Applicant in this proceeding, she would relocate to Brazil to be with the Applicant. She said she would be 'devastated' if he were removed to Brazil and that she would be 'really scared' about raising Child K on her own due to a number of factors including the limited support around her and the cost of living. She added that Child K well and truly knows who the Applicant is and that Child K would be very seriously impacted by the Applicant's removal. She spoke of being so emotionally upset at the prospect of the Applicant's removal that she would be uncertain about how to look after Child K.
5. She described her impression of Brazil as a '...very dangerous country. I'm scared to have my son there. Its extremely dangerous. Its just that no one speaks English in Brazil.' She told the instant Hearing about her recent diagnosis of Celiac disease which she described as an autoimmune disease and how that condition requires her to eat specific gluten free foods. She said she was not sure how she would be able to properly meet the requirements of this disease if she went to live in Brazil.
6. I accept the Applicant has immediate family members in Australia as they are listed above at [54] and I also understand the Applicant does not cavil with that list. However, most of those immediate family members are located in Rockhampton, some 600 kilometres from Brisbane and the Applicant now speaks of wanting to make a life for himself, Ms EM and Child K in Brisbane. In those circumstances, the immediacy of his ties with those immediate family members is understandably of a lesser level than it would be if her were to return to live in precisely the same location as they do. In addition, it is not as though he would be able to substitute the level of ties he has with his own immediate family members with any ties he may have with Ms EM's parents because as Ms EM pointed out, the level of her ties with her parents is limited.
7. Be all of this as it may, I will find that the Applicant's ties with his immediate family members now militate very heavily in his favour for the purposes of this Primary Consideration 3. It is not at all clear that Ms EM will relocate to Brazil (with Child K) to live with the Applicant. On the presumption that she will remain here, it is reasonable to find that she and Child K would be severely impacted by the Applicant's removal. I will also find that the remainder of his immediate family would be significantly impacted. These findings are predicated on the limiting proviso that each of the people representing these immediate ties listed at [54] being Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely.

Paragraph 8.3(2)(b) Assessment of ties to extended family and social links

1. The material contains a number of letters of support from social contacts the Applicant has in this country.[40] A family friend (Mr BB) who has known him for several years writes of the Applicant's care and kindness towards his own children and notes that the Applicant is '...very passionate about being present for his own child [K].'[41] Two other social contacts (Mr FB and Mrs DB) who have known the Applicant since the Applicant was 11 years old, described the Applicant as a '...good boy at heart, maybe the bad friendships influenced him to make some mistakes but clearly [the Applicant] shows he is sorry for everything he did.'[42] These two social contacts refer to '...believe that with the deportation [of the Applicant] we will suffer together with his family.'[43]
2. Ms GL is a friend of the Applicant's family and met them through their community church involvement. She has known the Applicant since 2008 and describes the Applicant as '...such a good friend...'[44] She '...truly believe(s) that [the Applicant] deserves a second chance, we all make mistakes in life.'[45] Mr SO'M has known the Applicant since 2020. He says 'I have never met a single person who has ever had a bad word to say about [the Applicant]...'[46] He concludes his statement with the words 'It saddens me to think that this very out of character mistake might now effect him for the rest of his life...'[47] Mr AVP has known the Applicant for about six years. He describes the Applicant as '...a good person. He is loyal, honest considerate, and a supportive individual who can see and understand things from another perspective, he is a great friend to be around with.'[48]
3. Mr BS has known the Applicant for the past 10 years. He describes the Applicant as a '...devoted and loving father to his...child. Deporting him would undoubtedly have a profoundly negative impact on the development and well being of his child.'[49] Mr JXS met the Applicant through the financial services industry. He describes the Applicant as '...a person of great integrity, offering unwavering support, loyalty and kindness. He constantly conducts himself with sincerity in all his dealings and treats everyone with utmost respect and compassion. To me, [the Applicant] is more than just a friend; he is like family and has always treated me as such.'[50] Mr LFDS has known the Applicant for over 12 years and he says they '...share a deep bond that extends beyond friendship, we consider each other as close as family.'[51] Towards the end of his statement he says '...I kindly request that you consider the strong support he has from friends like me.'[52]
4. Mr RLJB says 'My relationship with [the Applicant] is one of being a very close friend, having had that relationship for the past five years.'[53] He concludes his statement with 'I hope [the Applicant's] visa will not be cancelled, as the impact would be for a child to be raised without a hard-working caring father. The result would be for [the Applicant] to not be able to have any close family or close friends around him at all, and there would be no chance for him to start a respectable career in Australia.'[54] Mr SMB has known the Applicant for many years and is a past football (soccer) teammate of the Applicant. He says that 'In addition to our friendship, he is a usually upstanding member of society.'[55] He concludes his statement with '...I still believe the Applicant to be an honourable individual, a valuable member of my [sic] and a good human being.'[56]

1. The material also contains respective references from a previous teacher of the Applicant as well as a Pastor of his church. Both of these references speak favourably of him but, of course, they are not necessarily 'social ties' as is the case with the earlier people to whose statements I have referred.

1. I will find that the Applicant's ties to the above social contacts referred to in [63] - [66] of these reasons militate very heavily in his favour for the purposes of this Primary Consideration 3. This finding is predicated on the limiting proviso that each of these family and social ties being Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely.

Paragraph 8.3(2)(a): Additional factors to take into account

1. This component of Primary Consideration 3 requires me to look at how long the Applicant has resided in Australia, taking into account the following factors:
   • whether the Applicant arrived here as a young child? [57] The Applicant arrived in Australia in June 2009 when he was nine years old. But for a couple of months[58] he has lived here on a continuous basis for about 16 years. I will find that the Applicant did arrive here as a young child. This component of paragraph 8.3(2) strongly augments the weight allocable to his ties to this country;
   • whether the Applicant began offending soon after arriving here? [59] The Applicant arrived here as a nine year old in June 2009. He recorded his first criminal conviction in Australia in August 2019 which is over 10 years after his arrival. He did not begin offending soon after arriving here. Thus, the weight allocable to the Applicant for this Primary Consideration 3 cannot be impugned on the basis of him offending soon after arriving here; and
   • the time the Applicant has spent contributing positively to the Australian community during his time here.[60] The Applicant has always held down remunerative employment. The material shows[61] he has a very impressive work history in this country. He will have paid his fair share of income tax on his remunerative earnings. He has had an active involvement in community football (soccer) and a similar level of involvement in his church community. On the basis of his comprehensive work and community contributions to this country, I will find that this component of paragraph 8.3(2) of the Direction affords a very heavy level of weight in the Applicant's favour towards a finding about the strength of his ties to Australia.
2. Accordingly, I am of the view (and I find) based on my analysis of the evidence around subparagraph 8.3(2)(a) of the Direction that:
   • sub-paragraph 8.3(2)(a): strongly augments the weight allocable to the Applicant for the purposes of this Primary Consideration 3 because he did arrive in Australia as a young child of nine years of age;
   • sub-paragraph 8.3(2)(a)(i): does not impugn the weight allocable to the Applicant for the purposes for this Primary Consideration 3 because he did not begin offending soon after arriving in Australia; and
   • sub-paragraph 8.3(2)(a)(ii): does assist the Applicant because of his comprehensive work and community contributions to Australia.
3. Therefore, each of the three specific sub-paragraphs comprising 8.3(2)(a) (arrived here as a young child); 8.3(2)(a)(i); (did not begin offending soon after arriving here); and 8.3(2)(a)(ii) (comprehensive work and community contributions to Australia) serve to very strongly augment the weight I have already allocated to the Applicant pursuant to the earlier-applicable paragraphs comprising paragraph 8.3(1) and 8.3(2)(b) of the Direction, respectively, relating to his ties to immediate family members in Australia and his social ties in Australia.

1. I have referred to the three relevant components of this Primary Consideration 3. I am of the view, after having analysed the evidence relevant to each of those three components to which the evidence applies, that the totality of that evidence points to a very heavy level of weight in favour of this Tribunal setting aside the decision under review.

PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

1. This Primary Consideration requires a decision-maker to consider what impact a decision to refuse or not revoke cancellation of a visa will have on children who are and will continue to be under the age of 18 years of age at the time of the decision.[62] The Direction further requires that the best interests of each child must be considered individually if there is more than one minor child identified.
2. In assessing the best interests of each child/ren, a decision-maker is required to take into account:[63]

(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;

(e) whether there are other persons who already fulfil a parental role in relation to the child;

(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

1. In the submission[64] filed by the Applicant comprising his representations for the revocation of the mandatory cancellation decision, the nominated minor children whose best interests would be affected by the Applicant's permanent removal from Australia comprise:
   • Child K - aged two years and eight months (biological child of the Applicant and Ms EM;
   • the Applicant's step-sister, Child Y,[65] currently aged nine years
   • the Applicant's nephew, Child C, currently aged 11 years; and
   • the Applicant's niece, Child N, currently aged about two years.
2. During cross-examination, the Applicant confirmed he has never resided in the same house as Child K and that he has never played any day-to-day parental role in relation to that child. He confirmed that Ms EM is the primary carer of Child K. He further confirmed that the extent of his parental role has involved him speaking with Child K over the telephone and on the occasions when Ms EM brings Child K to the detention centre for in-person visits. He told the Hearing that the visits happen twice a week and that Ms EM actually moved into the same city where the Applicant is now detained. He said Ms EM initially had great difficulty in visiting the Applicant in detention because she did not have a driver's licence but that she is now receiving at least some measure of logistical assistance from her father in this regard.

Application of factors at 8.4(4) of the Direction to Child K

1. On his own evidence, the Applicant has never resided in the same house as Child K. In fact, the Applicant was in prison when Child K was born. His relationship with that child has mostly evolved through prison visits and then visits to the immigration detention centre. Thus, there is a limited nature to the relationship between him and Child K. The Applicant's circumstances of removal from the community have meant that his relationship with Child K has been non-parental in a 'hand-on' sense. But this is not to suggest there is no existing relationship between them. What is undeniable, however, is that the Applicant's circumstances have meant there has been long periods of absence of the Applicant from Child K's life as well as limited meaningful contact thus far.[66]
2. There is little or nothing to cavil with Ms EM's evidence to the effect that the Applicant is likely to play a positive parental role in the future of Child K. There are something like 15 years of parenting time left to run until Child K attains the age of 18 years. In addition, Ms EM most certainly needs the logistical support the Applicant could provide in relation to the parenting needs of Child K. This factor[67] in the Direction weighs heavily in favour of the Applicant. Child K is too young to reliably describe any impact the Applicant's prior conduct has had on him (Child K) and whatever he (Child K) might be impacted if the Applicant were to re-offend. This factor[68] of the Direction is of neutral weight and should be put to one side for present purposes.
3. True it may be that circumstances have compelled the Applicant to communicate with Child K about twice a week via in-person visits and otherwise to speak with him on the telephone. There is no doubt Child K knows the Applicant as his father and would be - to an extent difficult to define given Child K's age - adversely impacted by the Applicant's removal. If so, history has shown that the Applicant will be able to communicate with Child K via at least a telephonic platform if now permanently removed to Brazil. But that is cold comfort to both Ms EM and Child K. The Applicant can be reasonably expected to play a significant fatherly parental role in Child K's future and this role cannot be performed satisfactorily with the Applicant in Brazil and Child K in Australia and the two of them talking via electronic/telephonic platforms. I will put this factor[69] to one side and render it neutral for present purposes.
4. It is beyond argument that Ms EM currently fulfills the primary parental role in relation to Child K. She appears to have at least some measure of logistical support from either or both of her parents. But, on any reasonable view, one does not take the impression from the evidence that Ms EM is having an easy time of solely parenting Child K and that she most certainly requires the assistance of the Applicant in this regard. This factor[70] should, I think, weigh neutrally for present purposes.
5. Apart from the evidence of the Applicant and Ms EM, we know little or nothing of the views of Child K about the Applicant's permanent removal to Brazil. Child K is, after all, barely three years of age and is too young to reliably express any such views. This factor[71] weighs neutrally. There is no evidence that Child K has suffered or experienced any of the adverse elements referred to in paragraphs 8.4(4)(g) and (h) of the Direction.

Allocation of weight to the best interests of Child K

1. If the Applicant were to be permanently removed to Brazil, I am of the view that the factors at paragraph of 8.4(4) of the Direction attract the allocation of a heavy level of weight to his best interests. There is no doubt Ms EM desperately seeks the return of the Applicant to their household so she has assistance for the parenting responsibilities for Child K. As well, given that Child K is only three years of age, there is plenty of parenting time in Child K's life for the Applicant to play his parental role.

Application of factors at 8.4(4) of the Direction to the remaining three children

1. The evidence around the remaining children is relatively scant. Child Y (the Applicant's minor-aged half-sister) does not live in the same city as where the Applicant intends to live if returned to the community. She resides at a regional city some 640 kilometres away from the Applicant. She is primarily parented by her parents and the Applicant's relationship with that child is necessarily non-parental.
2. The Applicant has never met his abovementioned niece, Child N who lives in the same city as the Applicant intends to live in if now returned to the community. Child N is the child of the Applicant's brother. The brother has separated from the child's mother and it is the mother who primarily parents this child. The abovementioned nephew, Child C, resides at a regional city some 640 kilometres from the Applicant and he is primarily parented by the Applicant's mother and step-father at that location. His relationship with this nephew goes no higher than that of 'the loving uncle.'
3. There is obviously a limited nature and duration to the Applicant's relationship with these three additional children. With Child Y, there is no existing relationship. His relationship with these children has been non-parental and there have been long periods of absence of the Applicant from their lives. It follows that there has been limited meaningful contact between him and them.[72] There are minimal prospects of the Applicant playing any type of positive parental role in the future lives of these children.[73] We do not know any impact the children have experienced as a result of the Applicant's past conduct, nor any impact they would experience were he to re-offend.[74]
4. There is little or nothing to cavil with the Applicant having the capacity to communicate with these children from Brazil via non-in-person means.[75] Other people clearly fulfill the primary parental role in relation to these children.[76] None of the children's views about the Applicant' permanent removal are known.[77] There is no evidence that any of these three children have suffered or experienced any of the adverse elements referred to in paragraphs 8.4(4)(g) and (h) of the Direction.

Allocation of weight to the best interests of the remaining three children

1. I am of the view that the factors at paragraph 8.4(4) of the Direction attract, at best, only a slight level of weight to the best interests of these three additional children, one of whom he has never met and the other two who will reside at a location some 640 kilometres from where the Applicant would live if now returned to the community.

1. Having regard to the cumulative weights I have allocated to (1) the best interests of Child K; and (2) the best interests of the remaining three children, I will find that this Primary Consideration 4 is of heavy weight in favour of this Tribunal revoking the decision under review.

PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY**

1. The expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[78] The Direction explains:

'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 [in paragraph 8.5(1) - (3) of the Direction], without independently assessing the community's expectations in the particular case.'[79]

1. Paragraph 8.5(1) of the Direction is expressed in these terms:

"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 Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia."

Has the Applicant breached the normative expectation?

1. The Applicant has, without question, clearly breached the Australian community's expectations by his record of very serious criminal offending in this country which, in particular, is evidenced by his respective convictions imposed in May 2022 and March 2023. Therefore, the Australian community, 'as a norm', expects the Australian Government not to allow this Applicant to remain in Australia.

Is the Applicant's conduct alone sufficient to breach the normative expectation?

1. The Direction also states that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:[80]

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

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

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

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

1. In the previous paragraph, I have highlighted the Applicant's conduct falling within paragraph 8.5(2) of the Direction. He has committed offences in the realms of family violence (8.5(2)(a) of the Direction) and serious crimes against a woman (8.5(2)(c) of the Direction). Thus, the Applicant has undeniably breached the criminal law of this country as I have particularised at [8] of these Reasons.

Are there any factors modifying the Australian community's expectations?

1. The remaining question is whether there are any factors which modify the Australian community's expectations. This question is informed by the principles in paragraphs 5.2(5), (6) and (7) of the Direction. In summary these are:

a) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa (paragraph 5.2(5)); > > b) the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time (paragraph 5.2(5)); > > c) Australia may afford a higher level of tolerance towards 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 (paragraph 5.2(6)); > > d) the nature of a non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen (paragraph 5.2(7)); and > > e) the inherent nature of the non-citizen's conduct is so serious that it displaces even strong countervailing factors militating in favour of a positive visa outcome for a non-citizen even in circumstances where the non-citizen does not pose a measurable risk of harm to the Australian community (paragraph 5.2(8)).

2. In relation to sub-paragraph (a) of the immediately preceding paragraph [94], the term 'limited stay visa' is not defined in the Act. In this case, the Applicant held a Class EN subclass 186 Employer Nomination visa until it was mandatorily cancelled on 19 May 2023. This visa permits a person to 'travel' to and 'enter' Australia within a specified period of time once it is granted.[81] It does not specify a period for which the visa holder can remain in Australia once it is granted. As the visa permitted the Applicant to remain in Australia without any limit on the duration of his stay, the visa held by the Applicant cannot be classified as a limited stay visa.[82] Therefore, the application of this sub-paragraph (a) is not relevant to this Applicant.
3. In relation to sub-paragraph (b) of the abovementioned paragraph [94], the Applicant has spent about 16 years in Australia since arriving here aged nine years in June 2009. He has spent about 64 percent of his life in this country and is currently aged 25 years. He has a very impressive employment and community contribution history in Australia. He is in a committed de-facto relationship in this country and he and his partner have produced one biological child here. Whatever participation in, and contribution to, the Australian community he may have made during his 16 years here cannot be safely found to have been 'short'. Therefore, the Australian community's tolerance is not lowered by this part of the principles in 5.2(5) of the Direction.
4. In relation to sub-paragraph (c) of the abovementioned paragraph of [94], I repeat that the Applicant arrived in Australia as a nine year old some 16 years ago. He has spent about 64 percent life in Australia and he did come here at a young age. This means the Australian community's level of tolerance of criminal or other serious conduct by this Applicant is raised.
5. In relation to sub-paragraph (d) of the abovementioned paragraph [94], I am of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his criminal offending of the same type already committed and (on the other hand), whatever countervailing considerations may work in his favour, is not necessarily a principle referable to the community's expectations for present purposes. This is because I am of the view that the nature of the Applicant's past offending in this country has constituted offending of such a serious magnitude as to now dispel any applicable countervailing considerations working in his favour.
6. In relation to sub-paragraph (e) of the abovementioned paragraph [94], I am of the view that the totality of the Applicant's unlawful conduct in this country has been sufficiently serious such as to displace any strong countervailing considerations militating in favour of a positive visa outcome. I have found that the Applicant poses an albeit low-moderate recidivist risk but that the harm resulting from any recommission of his offending would be so serious as to now be unacceptable to the Australian community were he returned to it.

1. Primary Consideration 5 confers a very heavy level of weight in favour of this Tribunal affirming the Decision Under Review.

Other Consideration (a): Legal consequences of the decision

1. As best as I understood the evidence, the Applicant does not propound any fear of harm upon a return to Brazil that may now engage whatever non-refoulement obligations Australia may owe him. He has not applied for a protection visa. He is not barred from doing so either by s 48A of the Act or s 501E of the Act. Given his capacity to apply for a protection visa, this Tribunal can defer the assessment of whether any non-refoulement obligations are owed to him.[83]
2. The Applicant will likely experience legal consequences if permanently removed to Brazil. He would be permanently excluded from re-entering Australia. As a consequence, he would not be able to apply for any other visa to stay here except for a protection visa. However, this consequence is not contemplated the terms of paragraph 9.1 of the Direction. He may also experience particular impediments if compelled to return to Brazil. His permanent removal will also adversely impact the ties he has with people in Australia. The problem for the Applicant is that neither of these two additional consequences[84] are contemplated for consideration in paragraph 9.1 of the Direction. Any impediments he will face fall for consideration under paragraph 9.2 of the Direction. The impact on his ties to Australia was considered earlier in these Reasons pursuant to paragraph 8.3 of the Direction.
3. I accept there may well be legal and other consequences for the Applicant if unsuccessful in the instant proceeding. At best, these specific consequences warrant the allocation of nothing more than moderate weight in his favour.

Other Consideration (b): Extent of impediments if removed

1. Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments 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:

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

(c) any social, medical and/or economic support available to that non-citizen in that country.

1. Paragraph 9.2(1)(a): the Applicant is aged 25 years and appears to be at the peak of his physical condition. He has mental health diagnoses and for those diagnosed conditions, he will be able to access in Brazil such publicly available mental health care as would be available to other citizens of that country. The Applicant's age and state of physical health are not impediments. Any impediment he may face as a result of his mental healthcare derives from whatever relative differences there may exist between the comparative levels of publicly available mental healthcare between Australia and Brazil. I do not think this specific impediment is insurmountable.
2. Paragraph 9.2(1)(b): The Applicant lived in Brazil for almost the first decade of his life and completed his early schooling there. He has made return trips to Brazil in 2012 and 2013. He told the previous Tribunal that he can read and write in Portuguese and that he fluently speaks that language.[85] I will find there are no substantial language or cultural barriers impeding the Applicant's return and re-settlement in Brazil.
3. Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and/or economic support available to the Applicant in Brazil. First, with reference to economic support, it can be noted the Applicant has a very impressive work history in Australia. There is little or nothing to suggest he will not be able to find employment in Brazil where, according to the Respondent's SFIC, the unemployment rate was 6.2 percent in 2024.[86] To the extent he may require interim financial assistance in re-establishing himself, he would be entitled to the equivalent of Centrelink/unemployment benefits in Brazil to the same extent as other citizens of that country. The relative lack of economic support is a genuine but not insurmountable impediment to the Applicant's return and resettlement in Brazil.
4. Second, with reference to medical support available to him in Brazil, to whatever extent he may require treatment for his diagnosed conditions, he will, as I mentioned earlier, have access to such publicly available healthcare as would be available to other citizens of that country. There may well be differences between the quality of publicly available mental health care between Brazil and Australia. I have earlier found that whatever 'impediment' he may experience in relation to his mental health diagnoses derives from whatever differences may exist between the levels of such publicly available care between Australia and Brazil. The question of medical support in Brazil is a possible but not insurmountable impediment to his return and re-settlement there.
5. Third, with reference to social support available to him in Brazil, it should be noted that he told the previous hearing, he has family members residing in Brazil. He has a biological father who lives there and with whom the Applicant has spoken on an annual basis when the father rings for his birthday.[87] He also told the previous Tribunal hearing that he has additional family members residing in Brazil and they comprise a paternal grandmother and an aunt.[88] Thus, the Applicant is not totally devoid of people in Brazil who could afford him short to medium term accommodation and social support if he were now returned to that country. The question of social support in Brazil is a genuine but not insurmountable impediment to his return and re-settlement there.

1. My findings about impediments are as follows:
   • the Applicant's age and state of physical health are not impediments to his return and resettlement in Brazil. Any impediment he may face as a result of his mental health care derives from whatever difference there may be in the comparative levels of health of publicly available mental healthcare between Australia and the Brazil. I have found this impediment is not insurmountable;
   • there are no substantial language or cultural barriers impeding the Applicant's return and resettlement in Brazil;
   • the relative lack of economic support is a genuine but not insurmountable impediment to the Applicant's return and resettlement in Brazil;
   • the question of medical support in Brazil is a possible but not insurmountable impediment to his return and re-settlement there; and
   • the question of social support in Brazil is a genuine but not insurmountable impediment to his return and re-settlement there.
2. Given my findings about each of the three sub-paragraphs to this paragraph 9.2 of the Direction, I am of the view that this Other Consideration (b) confers, a moderate level of weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant's visa.

Other Consideration (c): Impact on Australian business interests

1. As best as I understood the evidence, neither side is propounding a position of this Other Consideration (c) being relevant to the instant facts. I will put it to one side and allocate neutral weight to it.

1. The allocation of weight to the Other Considerations in the present matter can be summarised as follows:
   1. legal consequences of the decision: is of moderate weight in favour of revocation;
   2. extent of impediments if removed: is of moderate weight in favour of revocation; and
   3. impact on Australian business interests: is of neutral weight.

1. Under section 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant's visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied there is another reason, pursuant to the Direction, to revoke the cancellation decision. As noted (and found) previously in these Reasons, the Applicant does not pass the character test.[89]
2. In considering whether there is another reason to exercise the power afforded by section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant's Visa, I have had regard to the considerations referred to in the Direction. I find as follows:
   • Primary Consideration 1: is of a very heavy level of weight in favour of affirming the Decision Under Review;
   • Primary Consideration 2: is of very heavy level of weight in favour of affirming the Decision Under Review;
   • Primary Consideration 3: is of a very heavy level of weight in favour of setting aside the decision under review;
   • Primary Consideration 4: is of a heavy level of weight in favour of setting aside the decision under review;
   • Primary Consideration 5: is of a very heavy level of weight in favour of affirming the Decision Under Review.
3. I have earlier outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined respective weights I have allocated to Primary Considerations 3 and 4 together with Other Considerations (a) and (b) are dispositively outweighed by the combined respective weights I have allocated to Primary Considerations 1, 2 and 5.
4. A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding there is not another reason to revoke the mandatory cancellation of the Applicant's visa.

1. Pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), this Tribunal affirms the decision made by a delegate of the Respondent on 19 January 2024 to not revoke the mandatory cancellation of the Applicant's Class EN Subclass 186 Employer Nomination visa.

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[1] Hereinafter referred to as "the visa".

[2] Pursuant to s 501(3A) of the Migration Act 1958 (Cth), hereinafter referred to as "the Act".

[3] Pursuant to s 501CA(4) of the Act, hereinafter referred to as "the decision under review".

[4] That is, the Applicant (who represented himself) appeared in person, as did the Respondent's representative, as did the Applicant's partner. Only the expert witness called by the Applicant - Dr James Freeman - appeared by video.

[5] Pursuant to specific sections of a Criminal Code of an Australian mainland state.

[6] Harrison v The Minster for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at [63].

[9] Pursuant to section 501C(4) of the Act.

[10] Direction No 110 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA commenced on 21 June 2024. It replaces Direction No. 99 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA. I will hereinafter refer to Direction 110 as "t_he Direction_."

[12] Paragraph 8.1.1(1)(a)(i) of the Direction.

[13] Paragraph 8.1.1(1)(a)(ii) of the Direction.

[14] Paragraph 8.1.1(1)(a)(iii) of the Direction.

[15] Paragraph 8.1.1(1)(b)(ii) of the Direction.

[16] That is, for the purposes of paragraph 8.1.1(1)(c) of the Direction.

[17] Paragraph 8.1.1(1)(c) of the Direction.

[18] R1, p 59, lines 40-46; p 60, lines 1-45; p 61, lines 1-8.

[19] Paragraph 8.1.1(1)(d) of the Direction

[20] Paragraph 8.1.1(1)(e) of the Direction

[21] Paragraph 8.1.1(1)(e) of the Direction.

[22] Bartlett v The Minister for Immigration and Boarder Protection (Migration) [2017] AATA 1561 at [43].

[23] Those paragraphs being paragraphs 8.1.1(1)(a),(b),(c),(d),(e) and (f).

[24] With particular reference to the 5th-14th offences committed by this Applicant (in terms of his conduct's chronological sequence).

[26] Paragraph 8.1(1) of the Direction. See also paragraph 5.2(2) of the Direction.

[38] Note to reader: Ms EM has since relocated to Brisbane with Child K.

[57] Paragraph 8.3(2)(a) of the Direction.

[58] See Movement History at R1, p 224.

[59] Paragraph 8.3(2)(a)(i) of the Direction.

[60] Paragraph 8.3(2)(a)(ii) of the Direction.

[62] Paragraphs 8.4(1) and 8.4(2) of the Direction.

[63] Paragraph 8.4(4) of the Direction.

[65] Note to reader: this Child Y is one and the same person as 'the Applicant's further half-sister' to whom I have referred at item (g) of [54] of these Reasons.

[66] Paragraph 8.4(4)(a) of the Direction.

[67] Paragraph 8.4(4)(b) of the Direction.

[68] Paragraph 8.4(4)(c) of the Direction.

[69] Paragraph 8.4(4)(d) of the Direction.

[70] Paragraph 8.4(4)(e) of the Direction.

[71] Paragraph 8.4(4)(f) of the Direction.

[72] Paragraph 8.4(4)(a) of the Direction.

[73] Paragraph 8.4(4)(b) of the Direction.

[74] Paragraph 8.4(4)(c) of the Direction.

[75] Paragraph 8.4(4)(d) of the Direction.

[76] Paragraph 8.4(4)(e) of the Direction.

[77] Paragraph 8.4(4)(f) of the Direction.

[78] Paragraph 8.5(3) of the Direction.

[79] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.

[80] Paragraph 8.5(2) of the Direction.

[81] Regulation 186.511 of the Migration Regulations 1994 (Cth).

[82] Walker v Minister of Home Affairs [2020] FCA 909 at [29].

[83] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 7 at [29]- [30].

[84] That is, permanent exclusion from Australia, ties to Australia and impediments he would face if removed to Brazil.

[88] R1, p 770, lines 36-46; p 771, lines 1-13.