FYBR v Minister for Home Affairs [2019] FCAFC 185

"...The substance of the conversation was about the payment of the rent at the address. The Aggrieved [i.e. the Applicant's mother] had made a comment about the respondent's [i.e. the Applicant] girlfriend [name redacted - Ms C] who also resides at the address, which the Respondent has reacted to by raising his voice to the Aggrieved and saying "you take that back you slut". The Respondent has then picked up a gym weight from the floor in the bedroom and thrown it at the Aggrieved. The weight has missed hitting the Aggrieved only as she moved out of the way. The Respondent has then grabbed the Aggrieved with both hands and thrown her into the door of the bedroom causing damage to the door. Police were unable to observe the damage as police were not able to access the unit. The Respondent has then started to punch the Aggrieved to the left side of the head. The Respondent has then kicked the Aggrieved in the lower left leg. The respondent has then grabbed the Aggrieved by the shirt and dragged her into the living room of the dwelling were Witness H [redacted] has entered the unit from a neighbouring unit and told the Respondent to "Stop". The child [name redacted] was then taken by H [name redacted] to a neighbouring unit were other family members reside...

.../

The Aggrieved has sustained a small lump to the side of the head and bruising to the lower left ankle, however declined to be assessed by Queensland Ambulance Service.

The Respondent has one (1) other child with the Witness [name redacted, Ms C] which resides at the address and is cared for by the Aggrieved. The child was present during the incident...

...

The Aggrieved is fearful of the Respondent however he has never reacted in this manner before. The Respondent and the Aggrieved were not under the influence of Alcohol or drugs at the time of the incident. Police belive (sic) that this behaviour will continue whilst the Respondent continues to reside at the address and is involved with Witness [name redacted - Ms C]."

1. The Applicant was cross-examined before the Tribunal in relation to the police particulars, as specified in the Application for a DVO, (above). The Applicant agreed that the description contained therein was accurate, adding "I don't remember all of it, but I do take fully [sic] responsibility of what my mum has said that I've done." [18] He clarified, with respect to the described fact of his child having been being present for the altercation, stating "she would have only been three or four months old, so she would have heard it. I don't think she seen it though."[19] The Applicant further added that, at the time, "I have a feeling that my mother was a bit intoxicated, because that's - she's always caring towards me and it's only that when she's drunk is when she'll pick an argument. And it's been like that ever since I've known her." [20]
2. In the aftermath of this incident LG moved out, and went to live with her boyfriend. Meanwhile, Ms C moved in with her parents (together with their child K), and the Applicant remained alone at the unit, for about another month. As was by now also expected, at around the end of January the Applicant received an eviction notice. He then also moved in with Ms C and their daughter, at Ms C's parents' home.[21]
3. Given that the Applicant was still earning only apprentice wages, finances remained tight. In light of that, the Applicant's father offered to assist the Applicant and Ms C obtain accommodation at a caravan park. The Applicant indicated that he and his partner thereafter lived at this caravan park, for about four months.
4. Next, in mid-2015, the Applicant's father purchased a house in the far Northern suburbs of Brisbane, and offered it as accommodation for the Applicant and his young family. Very shortly after moving into this house, Ms C gave birth to their second child, a boy, (child J), who was born in July, 2015.[22]
5. The Applicant, Ms C and their two infant children then lived in the house owned by the Applicant's father in Brisbane's northern suburbs for about the next six months.
6. However, the Applicant explained that living on the north side was proving to be very difficult, as his employment was based on the opposite side of the city. The location of their home was adding up to four hours to his daily commute. The Applicant says that he spoke with his father about this, and says that his father agreed, that it would be preferable if the Applicant's family were to move again, so that the Applicant could be closer to work. The Applicant then found an alternate rental property at Collingwood Park, where he and his partner lived for about the next 18 months.[23] The Applicant described that period at Collingwood Park in these terms: [24]

"I felt so blessed at this time in my life having two young children and a caring partner in my life. It is the best feeling in the world being a father. I think back to that time now, and I remember feeling a sense of pride as I believed I was displaying 'role model parenting' qualities...The next couple of years I felt like life couldn't get any better than having a young family to look after, and my apprenticeship was going really well too. I enjoyed every weekend because I got to spend quality time with my family and being able to watch my children grow and learn new skills is a blessing in itself."

1. In 2017, the Applicant completed his apprenticeship, and became a fully qualified roof plumber. Thereafter he continued to work for the same employer, albeit now as a qualified tradesman. [25]
2. Towards the end of 2017, the Applicant and his family moved again. The Applicant indicated that Ms C had, at this stage, wanted a 'more modern' house. The couple moved into a townhouse at Runcorn. However, after about six months, the Applicant and Ms C decided they needed something larger:[26]

"And I was sort of finished my apprenticeship so, I had, I was more financially stable, so we decided, let's just get a house that we really like and raise our family, stick to one house and raise a family in a nice house. So, we found a house in Underwood and we moved there after spending six months in that Runcorn house."

1. In 2018, the Applicant commenced FIFO work, and was often away working in North Queensland.[27] The Applicant states that this led to relationship problems between himself and Ms C, in consequence of her developing trust issues. Ultimately, this degenerated into Ms C accusing the Applicant of cheating.[28] Approximately three months after the start of the FIFO work, Ms C walked out on the Applicant, and their children. [29] The Applicant explained the situation in these terms: [30]

"So, the last trip I did to Airlie Beach, she said, "I don't trust you anymore, I think you're cheating on me". And I said, "Well". So, she then said, "You know, I want to break up with you and I'm going to live somewhere else". She just said also that she can't take care of the kids anymore, so I then told my boss that this is going to be my last, this is my last trip up to Airlie Beach, I've got to take care of my kids, and see what happens."

1. By now, the Applicant faced something of a dilemma. He had no option other than to cease work, in order to care for his infant children. Yet, without employment, and ineligible for any rent assistance, the Applicant could not afford to keep paying the rent; such that he needed to leave the house at Underwood, as well.
2. According to the Applicant, Ms C was at this stage also still coming around to the Underwood house, whereupon she would seek to enjoin the Applicant in further argument. The Applicant's cousin suggested that this was "too toxic for the kids, and we should come stay with him", instead. [31] In response, the Applicant and his children moved in with his aunt and his cousin, [32] for about the next month. Within a few weeks, the Applicant also returned to full-time work, in the expectation that his mother would now be able to assist in caring for the children whilst the Applicant was at work each day.
3. The Applicant had realised the need to provide a more permanent living situation for his children, but had also realised that he would face difficulties if attempting to rent a house in his own name, due to his recent adverse rental history. At around this same time the Applicant's mother had found a house to rent at Woodridge, and was looking to the Applicant to now help her rent it. In August 2018, it was agreed that the Applicant and his two children would move back in with his mother, LG. Also, at around this time, the Applicant's half-siblings had moved up from Adelaide, and they also moved in with LG and the Applicant, in the house at Woodridge. The fact of LG having previously taken out a DVO against her son in 2015 was clearly not seen as an impediment by LG to her now wishing to reside with the Applicant again, in 2018.
4. The Applicant gave evidence that, some nights his mother would stay at her partner's house, and he would be left to keep an eye of his teenage half-siblings, "to make sure they weren't going out at night time and that they were doing the right thing".
5. During the hearing, the Applicant's evidence was that, after their separation, Ms C never had their children. He also believed that Ms C had, by now started using illicit drugs, and was associating with the wrong crowd. The Applicant said that it felt like Ms C did not have any interest at all in their children at this stage. Later, he said that Ms C did start to occasionally visit the children, with the Applicant indicating that he did not seek to prevent her from doing that.
6. Initially, for the first week or so after moving into the house at Woodridge, the Applicant's mother and a cousin did help with the daytime care of his children. However, the Applicant soon realised that this arrangement would not work in the long term, as it became clear that both his mother and cousin also had no option other than to look for work outside the home, as well. In consequence, arrangements were made for child K and child J to instead go and live with their grandfather CS, the Applicant's father, on the Gold Coast.
7. The Applicant stated that around this time he had also entered into a written 'caring arrangement' with his father, saying that he had signed this document to enable CS to enrol the children at kindergarten, on the Gold Coast.[33] CS's own evidence on this point was somewhat different. For reasons that will be elaborated, the 'need to enrol the children in child care' may have been given as a pretext, used by CS, in an effort to have his son more readily agree to sign over legal custody of the children to CS.
8. During this next period, the Applicant says that he only saw his children about once per fortnight, commenting that it was not as often as he would have preferred. Meanwhile, the Applicant continued to live with his mother LG, in Brisbane. Three weeks into that arrangement, the Applicant says that he started to become quite depressed, saying "I can't be working and be away from them for weeks on end." [34] Eventually, the Applicant told CS: "Dad, I can't work. I don't want to work anymore. I just want to take care of my kids....that would have been a few weeks before December 2018." [35]

1. The Applicant told the Tribunal that he recalls his having started to dabble with methamphetamine recreationally in about "late 2018".[36] At this juncture it is to be noted that there is a police report from December 2018 in which it is stated that CS had informed the police of his concerns that the Applicant had been using drugs from as early as August, 2018, and that this had been one of the primary reasons why CS had volunteered to assume custody of his grandchildren, at around this time.
2. From his own recollection, the Applicant says that he did not believe he was addicted to methamphetamine in December 2018, saying that initially, he only used it recreationally every fortnight: "At that stage, would be, yes, once a fortnight for, and it would last about two or three nights and then, I wouldn't touch it again for another fortnight." [37]
3. By way of explanation for why his father may have reported his drug use to the police in December as having started as early as August 2018, the Applicant said that this was 'probably' because CS and his father's partner had found out that he was using ice (methamphetamine) at around that time:[38] "Their reaction was they resented me straight away and they didn't trust [me] or they would always lie to me and they would just - yes. I knew that they didn't have much respect for me after that when they found out." Here, the Applicant added that his father's partner, in particular, had indicated that the children should be removed from him immediately, once she had heard about his drug use.[39]
4. At this juncture, tensions between the Applicant and his father began to build. Here, it seems that a combination of the Applicant's depression/low mood and drug use, when coupled with the CS's innate disapproval for drugs became the recipe for the discord between father and son. Disputation about who was more appropriate to have custody of the children in these circumstances was clearly also very much part of that.
5. In either very late 2018, or early 2019, the Applicant quit his job, ostensibly in order to look after his children.[40] Initially, CS was quite reluctant to allow the children to return to living with his son, suggesting that it would be far better if the Applicant were to continue working, and to leave the kids with him, instead. This led to further argument.
6. On Monday, 10 December 2018, the Applicant contacted the police to make an inquiry regarding the process for placing a 'missing person's report'. The Applicant told the police that his children had been attending a family friend's home for the weekend, but that he had absolutely no idea where that was. The Applicant informed the police that he had not heard from his children since their departure, and he was concerned. At the hearing, the Applicant explained the background to his contacting the police at this time in these terms: [41]

"So, on that occasion, my dad was supposed to be taking care of my children, and this was while I was still working. And basically, he had his partner's - his partner's daughter was looking after my children. And I wanted to come visit them, on the weekend and she wouldn't let me. And I - because I've - you know, I thought the reason my dad was - he was looking after my children as to help me, and I said, "You know, I haven't seen them for a few weeks now, I'd like to" - it'd been two weeks, and then the third weekend I actually wanted to see them on the weekend, at least come visit them, before I go back to work. And they denied - they said I wasn't allowed to come see them. He said - yes".

MEMBER: When you say, "they" - I'll just pause you there, Mr Soames. When you say, "they said you couldn't see them", who's they?---That's my dad's partner's daughter.

All right. And anybody else - - -?---Who was taking care of them.

Just her, or her and somebody else?---No, it was just - it was just her. All right?---Yes, because she said that I wasn't allowed to see them on weekends. And when I called my dad up and said, "I really wanted to go see them, why am I not allowed to at least come visit them?" And he just didn't give me - he didn't give me a good enough reason, and I said, "Why?" And then just sort, I felt very angry at the situation, because I thought that they were to help me and support me, but then they said I'm not allowed to see my kids. And I asked for the address so I could go see my children, and he wouldn't give me their address. He said he didn't know. And I guess out of stress and anger I just - I called the police and said, "You know, I don't know where my children are." And I don't know her that well, my dad's partner's daughter, I don't know them very well. I don't know her very well. And so I was (indistinct), I was a little bit concerned of their safety and that. And I just really wanted to see them ."

1. Over Christmas 2018, the children were returned by CS to live with the Applicant. During this period CS would come and visit the children at least once per fortnight, but generally on most weekends. The Applicant explained that his father, CS, has always had an exceptionally good relationship with his grandchildren, and had always wanted to see them regularly.[42]
2. While still living with the Applicant, in early 2019, child K commenced her first term of Prep, in Brisbane. [43]
3. Around the beginning of 2019, the Applicant's evidence was that he was drinking most weekends, usually only one night over the weekend, with his drinking between six and ten beers. When the Respondent took him to the sentencing remarks of 3 December 2019, which referenced the amount of drinks consumed on the night of the primary offending as "ten tallies of full strengthen beer, [plus] a carton of Coronas", [44] the Applicant responded by saying that the amount referred to by the court had been the collective consumption of the whole group that evening, and not solely that of the Applicant.[45]

1. On 22 February 2019, the Applicant committed two offences of 'armed robbery in company'. The sentencing judge outlined the facts of this offending in the following terms: [46]

"Mr [name redacted - co-accused] was under the influence of methylamphetamine, and Mr Soames was not. In any event, it is noted in the facts that you had consumed a substantial amount of alcohol being ten tallies of full strengthen beer, a carton of Coronas which you shared with the co-accused who has already been sentenced, and you picked up a friend with a view to purchasing more alcohol.

Count 1 is that you robbed Mackenzie Service Station. You were armed. Mr Soames pulled a machete out from under his jacket and showed it to the complainant. The total time you were in the store was very short, only 37 seconds, and you left with numerous packets of cigarettes, and you ran away. You then determined that you would go and rob another place, and you robbed the Underwood Service Station.

On this occasion Mr [name redacted - co-accused] grabbed a kitchen knife to take with him. And you confronted the attendants at both of those stores in circumstances where it is, conceded, I think, that both of them would have been affected by the confrontation and been very anxious as a result, and you robbed that service station, Mr Soames, you grabbed some bottles of soft drink, some peanuts and multiple sets of headphones and walked out of the store.

In the meantime, Mr [name redacted - co-accused], you produced a knife from your pants, and "open the cigarettes", and on this occasion your co-accused, [name redacted], took a thousand dollars in cash. And Mr [ name redacted - co-accused] grabbed 150 to 200 packets of cigarettes which is noted to be worth somewhere between three and $4000. And Mr Soames, you then took some more peanuts from the shelves and ran away. Again, you were in the store only a short period of time.

You were identified by CCTV footage and arrested. And Mr Soames, you were interviewed by police. You assisted police and made multiple admissions of the offending. However, you did not give up Mr [name redacted - co-accused]. Mr Soames has a criminal history, but it was all after the offending which is concerning since those offences occurred whilst you were on bail."

1. A summary of facts prepared by the prosecution and put before the court, and to which the Applicant pleaded guilty, contained further details of this offending: [47]

"...On the day of the offences, Soames had been at home drinking beer in his garage with [name redacted], his cousin [name redacted], and others. Together they had consumed 10 'tallies' of full strength beer before running out. They then picked up a friend from Acacia Ridge, who brought a carton of Coronas. The four men finished this carton. The man from Acacia Ridge left. After running out of beer again, they decided to pick up a friend who lived in McKenzie and purchase more alcohol.

After the defendants picked up their friend, they drove past a 7-Eleven service station at McKenzie. Soames suggested that they go into the service station and 'demand some cigarettes'. They briefly discussed this and pulled the car over onto the side of the road. Soames armed himself with a machete which he concealed inside his hooded jacket.

At 8:39pm, the defendants walked into the service station. [Name redacted] was wearing a red shirt and had his face covered with a red bandana. Soames was wearing a grey jacket and did not conceal his face. The complainant, [name redacted], was replacing rubbish bins when the defendants entered the service station. They walked towards him, and upon seeing [name redacted] with a bandana over his face, the attendant ran behind the counter where he could lock himself in. [Name redacted] reached the door before it closed and pulled it open.

Soames followed him, pulled the machete out from under his jacket and showed it to the complainant. The complainant ran to the office area and Soames chased him. He locked himself into the offence and called 000. While he did this, the defendants stole numerous packets of cigarettes and ran away.

They were in the store a total of 37 seconds.

Count 2 - Underwood service station

After committing count 1, the defendants drove back to Soames' house in Woodridge. They were there for about 15 minutes before they decided to rob another service station, this time for money, so they could purchase more alcohol. [Name redacted] changed his clothes and grabbed a kitchen knife to take with him.

[Name redacted], Soames and [name redacted] left the house and drove around to find a suitable service station. They went past a number of service stations that were either closed or had too many customers. Soames suggested they try a BP service station at Underwood.

At 9:30pm they drove there and could see it was quiet, so the three men entered the service station. [Name redacted] was wearing a hooded jacket with the hood up and a bandana over his face and was armed with a knife. [Name redacted] was wearing a singlet and a cap and was armed with the machete. Soames was wearing a jacket with a cap on and was not armed. [Name redacted] and [name redacted] went to the counter and began to ask the complainant, [name redacted] (who also owned the franchise), questions about the store's stock in an effort to have him walk out of the service area.

The complainant noticed that [name redacted] had a bandana over his face and told him to take it off or he would not serve them. [Name redacted] complied and took his bandana and hood off. Soames was walking around the store and grabbed a bottle of soft drink, some peanuts and multiple sets of headphones and walked out of the store. The complainant pressed a panic button behind the counter to alert police and told the other two men that he had done this and to leave the store.

[Name redacted] pulled the machete out of his pants and the complainant ran to the store's back room to get to safety. They smashed the door to get behind the counter. The complainant returned to give them what they wanted so they would leave. [Name redacted] said 'if you don't give me the money I will kill you, open the register'. The complainant complied and opened the register. [Name redacted] took the knife from his pants, said 'open the cigarettes', and aggressively lunged towards the complainant with the knife.

[Name redacted] grabbed approximately $1000 from the register and [name redacted] grabbed approximately 150 to 200 packets of cigarettes (worth $3,000 to $4,000). They went to leave but Soames returned to the store. He grabbed some more peanuts from the shelves and ran away with them."

1. During the hearing before the Tribunal, the Applicant was taken to the facts of these offences, and the sentencing remarks, prior to his then being given an opportunity to comment. The Applicant agreed that he had pleaded guilty, and provided the following, by way of further context, in relation to his motivations for committing these offences: [48]

"MR SHARPE: Just read it to yourself, and then I'll ask you some questions?- --Yes.

So, the part in particular I'm interested in, is the last part of the first paragraph where it says:

There were circumstances outlined to me by your (indistinct) in relation to what happened on that night and some motivation for you doing what you did.

And then, in the next paragraph:

The (indistinct) was clearly misconceived, although there were some threats made against you for the use of baseball bats initially, and then some threat of firearms being used.

Now, there's no reference to that in the facts that appear in the prosecution facts. That appears to have been something said to the court by your counsel. But can you tell me what your counsel would have been referring to about both the motivation for you doing what you did on that night, and also this issue about threats made against you about the use of baseball bats and firearms? What's the judge referring to there?---What do you mean by the counsel?

...

That's right?---Yes. So I told her the situation, and she said it was sort of irrelevant to bring up in court. But basically, what happened was a week prior to the armed robberies, my ex-partner had come to see the kids. And (indistinct) out to dinner in - I think it was her boyfriend's car. And I knew that she didn't have a license, and it looked like she was under the influence of drugs as well. And she was trying to take the kids and drive away with them to take them to the dinner. And then pretty much, my mum might have heard the argument and said, the kids aren't going with you. And they sort of started having - they were yelling at each other, and started getting a little bit physical. And then basically some of the neighbours came out to see what was going on, and one of my friends - he took my children and took them back into the house. After that, I sort of got a little bit angry at my ex-partner for doing that. So I kicked in the front of the car. I kicked it, I think once or twice, the front grill. Then she - and after all that happened, she went back to her boyfriend and told him what I did - what I did to the car. And him - apparently he was - I sort of knew him as a drug dealer. And he came around with a friend and they had baseball bats. And my mum called the police, and they ended up getting arrested out the front of my house. And they were going to (indistinct) $2000 from you by next week.

Basically, we waited, and then that was for - a week later was the night of the armed robberies. I got my cousin to come over and another two friends - a neighbour and a friend, to help me if they did come back to my house with firearms or weapons again. That was the leadup to the armed robberies, that my mate brought over a machete, and we were sort of waiting to see if there was going to be any violence - if they were going to come over with any violence. So that's what sort of probably put the (indistinct) in me a little bit. And prior to this happening, too, I (indistinct) and she said, well I (indistinct) my house, in case those people do come over. Because they were just sending me text messages saying, we're coming to pick that money up on Friday. If you don't have it, we're going to come around and we've got firearms. And that's sort of what led up to the armed robbery. They never ended up coming around, and so we ended up just being drunk and we had weapons - we had a machete and a knife, yes.

Let's - that account you're giving sounds very concerning to me, but did you call the police and let them know what was - what had been threatened?--- Yes.

And what did they say? Did they say, arm yourself and wait for them to come round, and maybe get a six pack of beers and get intoxicated? Is that what the police told you to do?---No, they said they can't do anything unless he actually comes around.

So you decide to take it in your own hands - I still don't understand why you thought it was a good idea to get drunk that night, then. So you decided to get drunk and arm yourself with weapons so you could defend yourself against these people?---Yes, that's how it looks. And - - -

Well not just how it looks - that's the case, isn't it?---Yes, that's what happened. Yes. We weren't intentionally - - -

So what - - -?---Yes, I didn't intentionally invite my friend to have a drink. It just started off with a few talleys, and we did end up getting drunk.

MEMBER: What was the $2000 for? Was that for kicking his car, was it?---Yes.

Did you do any damage to the car?---The front of the bonnet - it was bent a little bit, the front of the bonnet. And so I think he would have to replace the bonnet and the front grill of his car.

Alright. So he was demanding money; he said he was going to come around and collect the money but he never did; when he didn't come around, you and your mates got drunk and then you went out and committed an armed robbery?---Yes, that's what happened. Yes.

Why did you need to commit the armed robbery? What's the connection between these people not turning up and you all going out to do an armed robbery?---I felt like there was still a chance they were going to come back and they were going to - they would want to ask for the money eventually."

1. Ultimately, the Applicant expressed that the "main motivation was to get money for the person who I owed money to, and to get more alcohol." [49]
2. After being charged with two counts of armed robbery in company, the Applicant intimated an early intention to plead guilty. He was granted bail, pending a sentencing hearing. The Applicant was not ultimately dealt with by the courts for these armed robbery offences until as late as 3 December 2019. Until that date, the Applicant remained at large in the community, yet subject to the terms and conditions of his bail. Further relevant issues and offences were to arise, during that period on bail.
3. In May 2019, child J suffered an injury in a bicycle accident. The Applicant had been riding his bicycle, with child J riding pillion, straddling the top tube. When the Applicant rode over a speedbump, child J's leg became caught in the wheel, thus causing a friction burn. The Applicant took his son to the hospital. child J was treated, and subsequently discharged into the Applicant's care. However, the wound became infected, and child J was taken back to hospital, where he was then required to stay as an in-patient, for the next month. [50] When it was time for child J to be discharged from hospital again, the Applicant had wanted child J to be discharged back into his care, however, the evidence suggests that the hospital and Child Safety by now held concerns about that, given that child J's wound had been allowed to become infected during the last time child J had been in the Applicant's care.[51] After receiving consent from Ms C as J's mother, the hospital discharged child J into the care of CS. [52] From that point onwards, the children went back into the care of the Applicant's father, with the exception of child K, whom initially Ms C had taken for a few weeks. However, Ms C soon realised that she could not care of child K in the longer term either, such that she brought child K back to CS, as well. [53]
4. CS's evidence during the Tribunal hearing was that the Applicant must have misunderstood the initial instructions from the hospital staff to bring child J back to hospital after a few days, for a check-up. [54] In consequence, Child Safety became involved, who were not comfortable with child J going home with the Applicant, given that there had been issues whilst in the Applicant's care previously. CS also stated that, in his opinion, at that stage, the Applicant was not able to adequately care for child J, either.[55]
5. There was then another disagreement between the Applicant and CS regarding the care arrangements for the children. [56] Not long after the children were back in his care, CS blocked the Applicant's phone, and stopped the Applicant from seeing the children altogether. [57] CS's evidence was that: [58]

"Yeah, I took him off - I had - I cut him off for a period of time because I felt that I couldn't do any more for him, you know, at that time. I wanted him to realise I thought by doing the shock treatment of cutting him off that that would work, you know. When you're a parent and your child does the wrong thing you try everything possible to sort of get them back where they should be, if you know what I mean. So, I tried the shock treatment. I tried everything I could - cut him off - wouldn't speak to him, you know for a while."

1. In May 2019, the Applicant attempted to take his children back from his father, by force. This culminated in an incident between the Applicant and his father's partner, Ms L, when she had tried to intervene.[59] A 'Statement - Police Protection Notice' about this incident records the following:[60]

"Since May 2019 the aggrieved [Ms L] and her partner [the Applicant's father] have been looking after the respondents [the Applicant's] 3 year old son and 5 year old daughter. The aggrieved told police that they have looked after the children on and off throughout their lives due to the respondent being unwilling/unable to care for them. In May 2019 the 3 year old son of the respondent was taken to Logan Hospital with friction burns. Following the 3 year olds release from hospital a decision was made that the aggrieved and her partner would look after the children.

The respondent told police that until about a month ago, this situation worked for all parties and that he would visit his children. The respondent told police that this changed about a month ago and his father blocked his phone and stopped him from seeing his children.

On the 13/07/2019 the respondent told police that he phoned child services and was told that there was no "active case" and that there was nothing from legally stopping him from getting his children. He said he also phoned police and asked if police could attend the address to help him get his children. He said that he was told to only call police once he was there should he need them (both phone calls are unconfirmed at this stage).

At about 16:15 hours on the 13/07/2019 the respondent has attended the home address of the aggrieved with the intentions of taking his children back and resuming his custody as their father. The respondent told police that he arrived at the address and saw the garage door open and the aggrieved in the garage. He said that he said hello to the aggrieved who appeared surprised to see him. He said he then saw that his children were in the back seats of the aggrieved's car. The respondent has tried to get his son out of the car seat. The aggrieved has seen this, and in an attempt to stop the respondent from taking the child, has grabbed hold of his shirt to stop him from leaving. The respondent has taken the child and walked away from the garage holding his son.

The aggrieved was fearful that the child would not receive appropriate care from the respondent so has held onto his shirt to stop him from leaving.

The respondent has told police that he wanted to leave with his son because as far as he was concerned, he had lawful custody of him. The respondent told police that he wanted to get away and get the aggrieved off him so has pushed her away. He denied making any assault.

The aggrieved has told police that the respondent has punched and kicked her, causing her to fall onto the floor.

The aggrieved had no visible injuries and no persons have witnessed the assault."

1. The Applicant provided a written response to the Minister addressing this incident, describing it in these words: [61]

"I knew my father did not want to give my kids back so I was worried that if I showed up at his house there would be drama. I contacted the police first and told them the story, that I have custody of my kids and my dad would not return them. I asked them if they could escort me to my dad's house but they said "They can't" and told me "You have every right to get your kids back and if there is any drama when you are there then call us". I listened to them and a few days later I approached my dad's house to get my kids back. When I showed up my dads' partner, [L], was sitting in the garage and I asked her 'Where are my kids? I've come to get them back because I have every legal right to." She did not say anything, so I walked into the garage and into the house calling out their names. There was no response from my kids, so I walked back outside, and [L] was hoping in the car. I walked over to the car to find that my kids were in the car asleep. I opened the car door and unbuckled both and took them both out of the car. [L] started screaming help and just started overreacting to the situation. I tried to tell her to calm down, they are my kids, and they are coming with me. I picked my son up and told my daughter to come with me, but she was frightened by the situation and just stood by the car. I started walking towards the entrance of the complex with my son in my arms. [L] started following me while screaming out help and hanging off my shirt trying to stop me from leaving. She was causing danger to me and my son, so I pushed her away from me and she tripped over onto the road. I kept walking for ten to twenty metres until one of the neighbours came outside and seen that [L] was in the middle of the road laying down after her fall. The neighbour then approached me and wanted me to wait for the police in case I assaulted her. I said, "I didn't assault her, and I will wait for the police to arrive"...Now that I look back on this situation, I should have handled it through the courts and the legal system. As a father I feel remorseful for putting my kids through a traumatic event like this one that occurred."

1. During his cross-examination, the Applicant only disputed that he had either kicked or punched Ms L, yet otherwise agreed that the particulars contained in the police account were accurate.[62] Yet, the Applicant also said that, after his having spoken with Child Safety, and having sought advice from the police; and a family lawyer, he had received advice that he had "every right to go there and get [his] children back."[63] The Tribunal does note this evidence to be consistent with the version that had been given by the Applicant to the police, at that time.
2. The Respondent raised with the Applicant whether the police and family lawyer were aware of the hospital incident, or the consent already previously given by Ms C for the children to live with the Applicant's father, CS. The Applicant responded that he had not known this at that time, stating that he hadn't really understood how it had come to be that his children were now back in the care of his father, and Ms L.[64] In any event, the Applicant says that he went to his father's address on the basis of the advice that he had received, regarding his right to reclaim his children; stating that he had never gone there intending to take the children by force. The Respondent put it to the Applicant that the Applicant believed that the advice had given him permission to take back the children in the manner in which he had eventually attempted: [65]

"...did you take it into your mind that what they had given you was permission to go and do what you intended - or what you did do, which was to go to the house and take children, as I say, by force if necessary? --- Yes."

1. The Applicant agrees that his methamphetamine use had increased over time, conceding that it had evolved from recreational use to become a full-blown addiction by about mid-2019: [66] "I would say mid-2019, is when I probably realised I have a - I was addicted to it, or I had a problem with it." By that stage, the evidence shows that the Applicant's drug use had increased to a point where the Applicant was using methamphetamine every day: [67]

"Yes, there was a period where - when I did get some of super payment taken out of my bank, that was probably a month or two before I came in jail. And in a period of about, yes, two months, I was using fairly regularly, almost every day before I came to jail.

Why was that?---Because the partner that I was - because I chose to, but it was because, also, my partner was - this is not the mother of my children, this is another - someone that I met. And we started using it, yes, most days of the week and I saw (indistinct) for about a month or two there and it was just - I felt like it was just to cope with the pain, like, knowing that I was going to jail and I just didn't know how to cope with the whole situation and that's why I felt like I leaned towards drugs and using them so regularly, just to numb the pain.

MR SHARPE: If I could just clarify then, your drug use, I think you said you (indistinct) drugs in 2018 and you said that started as being recreational use. You then led with an answer to another question about when you became addicted, you felt you became addicted around about the middle of 2019. Then, you feel that, or your memory is, that you started using drugs almost every day in the month or so before you went into jail at the end of 2019. Is that a fair summary of your drug use in that period?---Yes, that's fair."

1. On 23 July 2019, a Protection Order (DVO) was made against the Applicant, in order to protect Ms L. This was a step taken in response to the incident on 13 July 2019 in which the Applicant had attempted to take the children, from the back seat of Ms L's car. The DVO also named the Applicant's children K, and J, as further persons to be protected by the order.[68]
2. On 6 August 2019, the Applicant appeared in the Brisbane Magistrates Court for 'breach of bail condition', having in April 2019 breached the curfew condition of his bail order referable to the robbery in company offences.[69] No conviction was recorded, and the Applicant was fined $100.
3. On that same day, there is a record of the Applicant travelling on a train without having purchased a ticket, and thus having been charged with 'evade fare'.[70] By way of e-mail, the Applicant wrote to the court seeking to mitigate his penalty by apologising, and explaining that he had been under financial stress at the time. In the e-mail, the Applicant also expressed the shame that he felt for his actions, and assured the court that he would not offend in this manner, again.
4. On 30 August 2019, the Applicant appeared in the Brisbane Magistrates Court for 'stealing'. This offence was also committed whilst the Applicant was still on bail, pending a sentence date for the armed robbery in company offences. The Applicant had attended another service station, and this time had taken a pouch of tobacco.[71] In relation to this offence, the Applicant said he was "out of control", as by this stage, he felt as if he "just didn't care anymore".[72] The Applicant stated he was ever conscious of the fact that he would shortly be going to prison, once sentenced for the armed robbery offences. In consequence, the Applicant says that he started to behave recklessly.[73] In relation to the court appearance on 30 August 2019, the Applicant was fined $800 and no conviction was recorded.
5. In September 2019, the Applicant gave evidence that he had also applied to the Federal Circuit Court, seeking to take back custody of his children from his father, CS.
6. Based on the evidence received before the Tribunal, it appears that Federal Circuit Court orders were thereafter made by consent. These had the effect of providing CS with ongoing (and now formalised) custody over the children; and granted the Applicant only limited supervised weekend access visits to see his children, three Sundays, per month. Here, the Applicant explained to the Tribunal that he had initially attempted to take his father to court, yet his lawyer at the time had persuaded him that this was unwise, as there was a distinct risk of his children subsequently ending up in foster care, in the event that he were to gain custody only to shortly afterwards himself go to prison. At that stage the spectre of imprisonment for the February 2019 robbery offences loomed large for the Applicant. In light of that, the Applicant says that he relented in his quest to regain custody of his children, and agreed that the best option for his children was for them to continue to remain with their grandfather, CS.[74]
7. The role of CS as a constant stable feature in the lives of the children is obviously a noteworthy feature in this case. During his evidence before the Tribunal, CS indicated that there is another pending challenge to his custody of the children still before the courts that has been instigated this time by Ms C, as the children's mother. According to CS, an independent children's lawyer has filed a report in the Federal Circuit Court submitting that Ms C is not suitable to care for her children;[75] such that CS expects that his existing custody arrangements regarding the children will be confirmed, when Ms C's application is eventually heard by the court.
8. While the Applicant's father CS currently has custody of the children, and has obviously been in conflict in the past with the Applicant regarding appropriate care arrangements for the children, one very noteworthy aspect of this case has been the equanimity shown by CS toward his son, the Applicant. Here, CS has adopted an entirely positive and supportive posture regarding his son's likely future prospects to care appropriately for the children, in the event that he is not deported. CS indicated in his evidence before the Tribunal that, in the event that his son were to be released into the Australian community, CS envisaged that CS would continue to care for the children, yet would allow the Applicant to see the children regularly on a supervised basis, and that CS would only withdraw that 'scaffold' arrangement, when appropriate. In this light CS said that he would of necessity continue as the children's legal guardian, before his eventually returning to the Federal Circuit Court to obtain a variation in the existing custody arrangements, once CS had enough confidence that his son was again able to care for his own children by himself.[76] On the basis of his evidence, CS appears to consider that there are sound prospects for that happening, and that CS has already noted the beginnings of the necessary attitudinal change in the Applicant. The Tribunal accepts CS as an objective witness, motivated by the best interests of the children, and accepts CS's estimates of the Applicant's future prospects if now released from immigration detention.
9. On 6 November 2019, the Applicant appeared at the Southport Magistrates Court for the offence of 'possess utensils or pipes etc for use', which had occurred in October 2019. The Applicant received no conviction and was fined $200. [77]
10. On 20 November 2019, the Applicant was again apprehended for having evaded payment of a train fare.[78] At the hearing, the Respondent put to the Applicant that, despite his having declared on a prior occasion that 'this would never happen again', and having expressed remorse, and despite his having stated to the court that he had been ashamed of his behaviour, the Applicant had re-offended in an identical manner, thus suggesting that his past assurances had been no more than empty platitudes. The Applicant responded by apologising, stating that now, after reflecting he has realised that "it's not the fact that I didn't pay for it, it's just the fact that I'm breaking the law, and I should be paying like everyone else." [79]
11. On 3 December 2019, the Applicant was convicted on the two counts of armed robbery in company and was sentenced to three years imprisonment, to be suspended for three years after serving nine months. [80]
12. Further appearances in the Magistrates Court are recorded on each of 13 December 2019, and 15 January 2020. Both were for the offences of 'possess utensils or pipes etc for use' occurring on 25 February 2019 and 20 November 2019. [81] The Applicant was convicted and not further punished for the February 2019 offence. In relation to the November 2019 offence, the Applicant's criminal history records "next appearance mention Southport Magistrates Court on 17 January 2020", however, no further court appearances are recorded in any of the material before the Tribunal. This is presumably because by now the Applicant was already serving the custodial term ordered by the District Court, on 3 December 2019.
13. While in prison, the Applicant was involved in two further incidents. A prison incident report indicates that, on 5 February 2020, the Applicant was involved in an 'assault - other - prisoner on prisoner'. The incident report states "[b]oth prisoners were identified as [redacted] and Patrick Soames... Prisoners had no visible injuries, other than claims each had spat in each other's faces, with no punches thrown".[82] The Applicant explained the context of this incident during his cross-examination. While he had been exercising in the outdoor gym area, another prisoner had spat on him. The Applicant stated that he had then asked the other prisoner why he had just done that, and the other prisoner had then looked at the Applicant, as if he wanted to punch him. The Applicant then reacted, by himself spitting on the other prisoner. The other prisoner then went to spit on the Applicant again, who reacted by grabbing the other prisoner, and throwing him to the ground. Prison guards then intervened, stopping the altercation before it could proceed further.[83]
14. The second correctional incident occurred on 23 February 2020. On this occasion, the Applicant is reported as having been involved in a breach of discipline. The incident report form details the following:[84]

"At 0900 access while putting away safety orders on arriving at cell 6 which is occupied by prisoners SOAMES. Patrick F58615 and [redacted] I called out for prisoner [redacted] who is currently on a safety order to be by his door to be locked down.

As I was not fully familiar with both prisoners I asked the prisoner who arrived at the door "are you the safety order" with a reply "yes" and he was locked down.

We continued with the access when I noticed a Prisoner playing cards at one of the unit dining tables that looked like prisoner [redacted].

The Prisoner was then called over and asked are you [redacted] with the reply "yes". [Redacted] was then escorted to his cell. both prisoners were questioned and admitted trying to deceive unit officers. Both were then locked down and informed that I would be breaching them for lying and pretending to be one another."

1. On 25 February 2020, the Applicant's Class AO Subclass 831 Prospective Marriage Spouse visa was cancelled. On that same day the Applicant has requested that the Minister revoke the mandatory cancellation decision.[85]
2. On 2 September 2020, the Applicant was transferred to immigration detention.[86]

On 2 February 2021, a decision was made to not revoke the visa cancellation,[87] whereupon the Applicant commenced this application for review before the Tribunal.[88]

1. Revocation of the mandatory cancellation of visas is a matter governed by s. 501CA(4) of the Act. Relevantly, s. 501CA(4) provides:

(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 s. 501); or

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

1. I am satisfied that the Applicant made the representations required by s.501CA(4)(a) of the Act. Thus, the issue becomes whether there is another reason why the original decision should be revoked.
2. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia's observations in Minister for Home Affairs v Buadromo:

"...there has been some discussion in the authorities as to whether s. 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word 'may' in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view..."

1. There are therefore two issues before the Tribunal:
   • whether the Applicant passes the character test; and
   • if not, whether there is 'another reason' why the decision to cancel the Applicant's visa should be revoked.

1. The character test is set out in s.501(6) of the Act. Under s.501(6)(a), a person will not pass the character test if they have "a substantial criminal record". This phrase, in turn, is defined by s.501(7)(c), which provides that a person will have a substantial criminal record if they have "been sentenced to a term of imprisonment of 12 months or more".
2. As discussed in the factual analysis in preceding paragraphs in these reasons, on 3 December 2019, the Applicant was convicted before the District Court at Brisbane on two counts of armed robbery in company, and was sentenced to serve three years imprisonment, to be suspended for three years after the Applicant having served nine months. What matters is not the amount of time served by the Applicant in actual imprisonment, but the length of the head sentence, which in this case was for more than twelve months.
3. The Tribunal therefore finds that, because of s.501(7)(c), the Applicant has a "substantial criminal record", and he cannot pass the character test. In these circumstances, the Applicant cannot rely on s.501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.

Is There Another Reason why the Visa Cancellation Decision Should be Revoked?

1. In considering whether to exercise the discretion in s.501CA(4) of the Act, the Tribunal is bound, because of s.499(2A), to comply with any directions made under the Act. In this case, Direction No 90 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA ("the Ministerial Direction") has application.
2. For the purposes of deciding whether to refuse or cancel a non-citizen's visa, or whether or not to revoke the mandatory cancellation of a non-citizen's visa, paragraph 5.2 of the Ministerial Direction contains several principles that must inform an application of each of the considerations identified in Part 2, wherever these may be relevant to the decision. The principles that are found in paragraph 5.2 of the Ministerial 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) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

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

(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.

(5) Decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non‑citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

1. Paragraph 6 of the Ministerial Direction provides that, once suitably informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in paragraphs 8 and 9, wherever these may be relevant. Paragraph 8 of the Ministerial Direction then sets out four (4) 'Primary Considerations':

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

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

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

1. Next, Paragraph 9 of the Ministerial Direction sets out four (4) 'Other Considerations', which must also be taken into account. These are:

1. international non-refoulement obligations; 2. extent of impediments if removed;

(i) strength, nature and duration of ties to Australia; and

1. These are "other" considerations, as opposed to merely secondary considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[89]

"...Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non-refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply."

PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

1. When considering Primary Consideration 1, paragraph 8.1 of the Ministerial Direction requires decision makers to keep in mind that the Government is committed to protecting the Australian community from harm arising as a result of criminal activity, or other serious conduct by non-citizens. Decision makers are required to have particular regard for the principle that entering or remaining in this country is a privilege, that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals, or to the Australian community.
2. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Ministerial Direction requires decision makers to give consideration to:
   1. The nature and seriousness of the non-citizen's conduct to date; and
   2. The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

The Nature and Seriousness of the Applicant's Conduct to Date

1. When assessing the nature and seriousness of a non-citizen's criminal offending or other conduct to date, paragraph 8.1.1(1) of the Ministerial Direction specifies that decision makers must have regard for a number of factors. These are set out as sub-paragraphs (a) - (g) inclusive, of paragraph 8.1.1(1) of the Ministerial Direction. Of these, the Respondent submits that only sub-paragraphs (a) and (c) are here relevant.[90]
2. Sub-paragraph (a) of paragraph 8.1.1(1) of the Ministerial Direction provides that, without limiting the range of conduct that may be considered 'very serious', violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are each matters that are viewed 'very seriously' by the Australian Government and the Australian community.
3. Paragraph 8.1.1(1)(c) provides that decision makers must have regard for the sentence imposed by the courts in the case of other crimes or conduct, being those other than in the case of those already mentioned in subparagraphs 8.1.1(1)(a)(ii), 8.1.1(1)(a)(iii), and in subparagraph 8.1.1(1)(b)(i).
4. In relation to 8.1.1(1)(a) and 8.1.1(1)(c), the Respondent submits that the Applicant's offences of armed robbery in company should be categorised by the Tribunal as 'very serious', because:
   • In the first armed robbery, the Applicant had armed himself with a machete and had concealed this, under his hooded jacket. Once inside the service station, the Applicant had displayed the machete to the service station console operator, causing him to become, no doubt, alarmed and frightened;
   • Crimes such as these have the potential to cause harmful psychological sequelae for their victims, as well as for having great risk of escalation: into instances of actual violence;
   • The Applicant was 'amped up' and committed two such crimes, in quick succession, and whilst in company;
   • The seriousness of the Applicant's most serious crimes is now reflected in the head sentence (of three years imprisonment), as imposed by his Honour Judge Rinaudo in the District Court at Brisbane, on 3 December 2019;
   • Even after the offences of armed robbery, and before these could be dealt with by the courts, the Applicant committed a further offence whilst on bail of stealing, again in a service station, and in similar circumstances (albeit this time whilst not armed, or with any other aggravating circumstances of violence);
   • The Applicant has two Domestic Violence Orders (DVOs) that have been taken out against him. Although not convicted of an offence, the circumstances of the events giving rise to each DVO contain aspects of violence towards women; and
   • The Applicant was involved in two incidents whilst incarcerated.
5. In his Statement of Facts Issues and Contentions, and in his oral evidence before the Tribunal, the Applicant acknowledges the seriousness of his offending.[91] In the Tribunal's assessment - and contrary to the submission made by the Respondent - the Applicant did not seek to detract from the seriousness of his offending when explaining the circumstances.
6. I do not consider factors (b), (d), (e), (f) and (g) in paragraph 8.1.1(1) of the Direction specifically apply to the Applicant's offending or circumstances. I accept therefore the Respondent's submissions that only paragraphs 8.1.1(1)(a) and (c) are here relevant.
7. The Applicant has committed two offences of 'robbery in company whilst armed', as well as having had two DVOs taken out against him. In the Tribunal's assessment, the domestic violence conduct by the Applicant must be understood in the specific context in which each such event arose. Taken in their actual context, neither incident amounts to domestic violence of the most egregious kind. Notwithstanding that observation, each of the armed robberies and the DVOs are matters squarely within the ambit of paragraph 8.1.1(1)(a) of the Ministerial Direction, such that these must now be viewed by the Tribunal consistently with the expectations of the Ministerial Direction, as being 'very serious'.
8. So too, the fact of the head sentence of three years imprisonment as imposed on the Applicant by the District Court of Queensland at Brisbane on 3 December 2019 for the armed robbery offences must now be treated by the Tribunal in conformity with paragraph 8.1.1(1)(c) as a key measure of the objective seriousness of the Applicant's offending.
9. The Tribunal finds therefore that the Applicant's armed robbery offences and the fact of his having been named as a respondent in two separate DVOs are each matters that can now only be categorised as: 'very serious'.

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

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

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

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

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

Nature of harm should the Applicant engage in further criminal or other serious conduct and likelihood of the non-citizen engaging in further criminal or other serious conduct in the future

1. The Respondent submits that there is a risk of a range harm, including of psychological and potential physical harm to the community in the event that the Applicant were to engage in similar crimes of armed robbery whilst in company or domestic violence conduct in the future; [92] and there is limited evidence now before the Tribunal regarding steps taken by the Applicant to deal with his drug or alcohol use;[93] or to engage in other forms of rehabilitation. The Respondent further notes that a second DVO was taken out against the Applicant in 2019, in circumstances wherein one of these had already been taken out against the Applicant previously, in 2015. In light of these things, the Respondent submits that protection of the community should now weigh significantly in favour of not revoking the cancellation of the Applicant's visa.[94]
2. In the event that the Applicant were to engage in further armed robberies in the future then the nature of harm to individuals and the Australian community would be most serious. On the evidence that is available there does not however appear to be any great probability of that occurring. In light of the Applicant's efforts towards rehabilitation, as discussed further below, the Tribunal assesses the likelihood of the Applicant engaging in further very serious offending or other concerning conduct in the future as only a 'low' probability. On the available evidence, which includes evidence of the Applicant's efforts towards self‑rehabilitation as discussed subsequently in these reasons, the Tribunal is unable therefore to accept the submission of the Respondent regarding the weight that should now attach to this consideration, in favour of non-revocation of the visa cancellation decision. In the Tribunal's assessment that there is now only a 'low' likelihood of the Applicant engaging in further criminal or other serious conduct in the future, the Tribunal considers that only modest weight should attach to this consideration in favour of non-revocation.

1. As to Primary Consideration 1, the Tribunal concludes that protection of the Australian community weighs against revocation of the visa cancellation decision, however the weight that should attach to this consideration is only moderate.

(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:

1. 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
2. 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:

1. the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
2. the cumulative effect of repeated acts of family violence;

1. 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

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

1. The Respondent submits that Primary Consideration 2 weighs "significantly in favour" of not revoking the cancellation of the Applicant's visa, because of the following:[95]
   • In the event that the Applicant were to be allowed to remain in Australia there would be a risk of further family violence in the Applicant's relationship with his family;
   • Past incidents include violence towards both the Applicant's mother, LG, and towards the Applicant's father's partner, Ms L;
   • Rather than expressing remorse, the Applicant "attempts to justify why he engaged in this behaviour";
   • Both domestic violence incidents occurred in front of the Applicant's children; and
   • Violence towards the Applicant's father's partner (in 2019) transpired even after a DVO had been taken out against the Applicant in 2015 to protect LG. This should be construed by the Tribunal as evidence going towards showing that the Applicant has a propensity for domestic violence, and "failed to understand the impact of his behaviour after the first incident".
2. In relation to matters of family violence, the Applicant has submitted:

"I understand that family violence is not tolerated in Australia and is unacceptable behaviour. I know that I have 2 dvo's that were put on me one by my mother over 5 years ago and one from my father's partner about 18 months ago. There are no excuses for displaying aggressive or violent behaviour towards anyone which is why I am deeply remorseful for my behaviour towards my victims that have placed dvo's on me. Everyone deserves to feel safe and not be fearful of other people's behaviour. I am ashamed of my actions and knowing that I have effected my victims in a negative way. I don't wish that type of trauma on anyone. Now that I have had time to reflect on my actions I have realised how disgusted I am of my behaviour and the impact it had on my victims. I wouldn't want my children thinking that violence is ok which is why I have started making changes in my life to not reoffend. I have done 2 anger management classes in detention and other programs which have helped me a lot to understand why I get angry and most importantly how to control it."[96]

1. The Tribunal does not accept the Respondent's submission as to the weight that should attach to Primary Consideration 2, for reasons that will now be elaborated.
2. The Tribunal considers that the phenomenon of family violence is a corrosive blight on the Australian community, and notes the clear intent expressed within the Ministerial Direction, that requires the Tribunal to act in conformity with government and community concerns about domestic violence, by the Tribunal now acting in conformity with the dictates of the Ministerial Direction, as these are expressed in relation to, inter alia, family violence.
3. The Ministerial Direction specifies that acts of family violence by non-citizens are to be treated as 'serious concerns',[97] yet also goes on to specify that the extent of the Government's concerns in this regard "are proportionate to the seriousness of the family violence engaged in by the non-citizen", when assessed against the considerations expressed in paragraphs 8.2(3)(a) - (d) of the Ministerial Direction. Here now applying the 'lens' contained in paragraph 8.2(3) of the Ministerial Direction, in the specific case of the documented domestic violence events of the Applicant, the Tribunal concludes as follows:

8.2(3)(a) Frequency of the Applicants family violence/any trend of increasing seriousness

1. There are two recorded events involving the Applicant that gave rise to DVOs naming him as a respondent. These took place approximately four years apart, in 2015, and in 2019. In light of the circumstances arising in each instance - as have been documented in preceding paragraphs in these reasons for decision - the Tribunal concludes that the Applicant's family violence has been infrequent; situationally specific and not such as to give rise to any concerning pattern; and, that there is no objectively ascertainable trend of increasing seriousness that is contained therein.

8.2(3)(b) Cumulative effect of repeated acts of family violence

1. The Tribunal has not been shown any evidence of there having been any 'cumulative effects' of repeated acts of family violence by the Applicant. The Tribunal considers that the two events giving rise to the DVOs being taken out against the Applicant are episodes that are unrelated, to one another. Each arose in specific circumstances and, on an objective consideration, neither has given rise to any cumulative effect, or ongoing sequelae. As has been noted already in these reasons, the Applicant's mother, LG, voluntarily chose to re‑enter living arrangements with the Applicant, even after her having previously obtained the benefit of a DVO against the Applicant, in 2015.

8.3(c) Rehabilitation achieved since the date of the Applicant's last act of family violence

1. The Tribunal notes the Applicant to have accepted responsibility for his conduct and to now understand the impact of that conduct on others, and to have partaken in a number of efforts towards his own improvement and rehabilitation.[98] The Applicant was cross-examined in relation to these efforts, and it was put to him that these had been little more than window dressing, commenced only after his arrival in immigration detention and after the commencement of this application for review before the Tribunal.
2. In response, the Applicant advised that he was simply unable to partake in any rehabilitative courses whilst in prison, as prisoners are ineligible for rehabilitation programs during their first six months of incarceration, and he was then only in prison for a total of nine months, such that: "there wasn't any of the programs I could have started and completed before I got out". Additionally, the Applicant expressed that he felt that the very process of his having been imprisoned had already served as a significant moment of realisation for him, and that in consequence of his incarceration, "I really believed I was rehabilitated whilst in gaol .... But I wanted to show the AAT that I can make extra effort if I need to. And it has bettered me, doing all this counselling. Now, I feel like I definitely won't reoffend, having that counselling network there."[99] The Tribunal accepts that the Applicant has taken all the rehabilitative steps that have been practical in all the circumstances, and has done that in the proper spirit.

8.3(d) Whether the Applicant has re-offended since being warned or made aware of the consequences of further acts of family violence

1. A DVO was first taken out in 2015 by the police for the benefit of the Applicant's mother. Approximately four years later, in 2019, another DVO was taken out against the Applicant, this time for the primary benefit of CS's partner, in the circumstances as described in preceding paragraphs of these reasons.
2. In light of the required assessment, as now 'stepped through' by the Tribunal in conformity with the requirements set out in paragraph 8.2(3) of the Ministerial Direction, the Tribunal concludes that the extent of any concern for the family violence engaged in by the Applicant must be assessed as 'quite low' in order to remain proportionate with the objective seriousness of this family violence.

1. The Tribunal therefore concludes that Primary Consideration 2 must generally weigh against revocation of the visa cancellation decision, yet now only attracts a small measure of weight in favour of non-revocation.

PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

1. Paragraph 8.3(1) of the Ministerial Direction compels a decision maker to make a determination about whether cancellation or refusal under s. 501, or non-revocation under s. 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) then contain further stipulations. Paragraph 8.3(2) provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. Paragraph 8.3(3) provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
2. Paragraph 8.3(4) of the Ministerial Direction then sets out a number of factors that are to be taken into consideration regarding the best interests of minor children in Australia:

1. 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); 2. 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;

1. 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;

1. 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; 2. whether there are other persons who already fulfil a parental role in relation to the child; 3. any known views of the child (with those views being given due weight in accordance with the age and maturity of the child); 4. 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; 5. evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
2. The Applicant is the biological father of two children, child K, a girl now aged about seven years, and child J, a boy, presently aged about five years.[100]
3. The Respondent now submits that the best interests of the children do not weigh in favour of revocation of the cancellation of the Applicant's visa, and that this Primary Consideration should only attract neutral weight, once the Tribunal takes into account the following: [101]
   • The Applicant is not currently performing a parental role in relation to either child K or child J ('the children') and has had long periods of absence from the children because of his incarceration;
   • The Applicant has relinquished primary care of his children who are currently being looked after by the Applicant's father, CS;
   • CS has had the care for the children since at least 2019, and the children have spent a significant portion of their lives and formative years away from the Applicant;
   • The adverse influence of the Applicant's prior family violence on the children;
   • If deported, the Applicant would still be able to continue to have contact with his children by remote/electronic means, and it is not clear on the evidence that this would have any significant adverse impact on the children; and
   • The children would continue to receive appropriate care, from their grandfather, in the event that the cancellation of the Applicant's visa were not to be revoked by the Tribunal.
4. The Applicant submits that,[102] although CS has taken very good care of his children whilst the Applicant has been either incarcerated, or in immigration detention, a concern arises, by reason that his father is now ageing, and has recently also undergone open heart surgery; and thus may not be able to continue to look after the children, into the future. At the same time, the Applicant notes that his former partner - and the children's mother - Ms C, has significant substance abuse, and mental health issues (a matter further confirmed for the Tribunal in the evidence of CS); and submits that his own mother (LG)'s circumstances are such that she is also an unsuitable alternate custodial parental figure for the children for anything other than an occasional or short term arrangement, in the event that CS is unable to continue to perform the role.[103] Having heard some evidence from LG, the Tribunal concludes that LG is unlikely to ever be able to provide more than occasional care for the children.
5. The Tribunal was highly impressed with the Applicant's father, CS. He was a candid witness, who gave his evidence before the Tribunal in an unembroidered manner. The Tribunal considers that CS has consistently acted in a very commendable and entirely appropriate custodial manner towards his grandchildren K and J, in what must have been very difficult circumstances, clearly not of his making, and nor by choice.
6. The Tribunal accepts that, on the evidence that is available, Ms C is unlikely to be a suitable alternate custodial parent for child K or child J, in the event that in future CS is not available. The Tribunal also accepts that LG is not equipped to provide suitable alternate sustainable custodial arrangements for the children in the event that CS were to be precluded from the role in future by reason of either ill-health, or some other thing. Although CS has indicated that he intends to perform a custodial role for child K and child J for as long as is necessary,[104] the Tribunal accepts that his age and health status are apt to become limiting factors at a point well prior to the children attaining the age of 18. In these circumstances, the Applicant does present as the most likely prospective alternate custodial parental figure for child K and child J at that future date. This does become a material consideration for the Tribunal, that does now lend further weight in favour of revocation of the visa cancellation decision.
7. As to the factors now adumbrated in paragraph 8.3(4) of the Ministerial Direction, the Tribunal determines as follows:
   1. the nature and duration of the relationship between the child and the non-citizen.
8. The nature of the relationship between the Applicant and child K and child J is that of biological parent, and child. The relationship commenced at birth and the evidence heard by the Tribunal suggests that there is a strong bond between both of the children and their father, the Applicant. The Applicant was the primary carer for both of the children until about August 2018 yet has not had primary custody of the children since that time, and has had only negligible contact with the children since his first incarceration in December 2019, and subsequently during his immigration detention. The Applicant has explained his decision making around that, which relates entirely to his concerns for the welfare and best interests of the children.
   1. the extent to which the non-citizen is likely to play a positive parental role in the future
9. The children are aged only seven, and five. The Applicant does not currently have custody of the children and is not likely to obtain custody of the children in the short term. Despite that, the Applicant is likely to still play a substantial and positive parental role in the lives of his children, and the extent of that role is apt to increase further, over time.
   1. 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
10. There is some evidence that the Applicant's daughter became upset and frightened in May 2019 when the Applicant attempted to retrieve the children from the back seat of his father's partner's car. There is also evidence that the Applicant did not react promptly by returning to the hospital when his son's friction burn injury became infected. Other than those instances, there is no specific evidence before the Tribunal that the Applicant's prior conduct has impacted adversely on the children. In the event that the Applicant were to resume using illicit drugs in future, then it is doubtful that the Applicant could be an effective custodial parent for his children. On balance, however, the Tribunal considers it to be unlikely that the Applicant will return to illicit drug use, as the Tribunal considers that the Applicant has developed an insight as to the adverse consequences of that, and now wishes to choose a different path.
    1. 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.
11. The Tribunal considers that the ability of the children to maintain any form of effective or meaningful contact with the Applicant by 'other means' in the event that the Applicant is deported to PNG is entirely unrealistic, and not in any way an equivalent of direct physical contact. It is a fanciful suggestion. In the event the Applicant were to be deported, the emotional impact on both children is apt to be very significant.
    1. whether there are other persons who already fulfil a parental role in relation to the child
12. The Applicant's father, CS, already fulfills a custodial guardian role in relation to the Applicant's children. CS is however the children's grandfather and, as such, does not fulfill a parental role. The children's mother - Ms C - would not appear to be able to fulfill a substantive parental role.
    1. any known views of the child
13. The children's views, as expressed through the evidence of CS, are taken by the Tribunal to be strongly in support of revocation of the visa cancellation decision.
    1. 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
14. Elsewhere in these reasons, the Tribunal has documented the extent to which the children have been exposed by the Applicant to putative family violence, and/or neglect by the Applicant. Other than to note the fact of occurrence, and in all of the circumstances arising in this case, the Tribunal does not assess these instances as especially concerning, or to be significant.
    1. evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
15. Evidence going to this consideration has already been documented by the Tribunal, elsewhere in these reasons. The Tribunal does not consider that the Applicant's children have experienced any specific emotional or physical trauma, arising from the conduct of the Applicant that would now warrant the Tribunal attaching any weight or significance to the same as part of these deliberations.

1. Ultimately, the Tribunal concludes that the best interests of the two children K and J each now weigh very heavily in favour of revocation of the cancellation decision.

PRIMARY CONSIDERATION 4: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

1. Paragraph 8.4(1) of the Ministerial Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Serious conduct in breach of this expectation by a non-citizen, or an unacceptable risk of that by a non-citizen ordinarily gives rise to a community expectation that the Government will not then allow the non-citizen to remain in Australia
2. Paragraph 8.4(2) of the Ministerial Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns, or the 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:

1. acts of family violence; or 2. causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

1. 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;

1. commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or 2. 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 3. worker exploitation.
2. Paragraph 8.4(3) of the Ministerial Direction provides that the above expectations of the Australian community apply regardless whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
3. Paragraph 8.4(4) of the Ministerial Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

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

1. Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 ("FYBR") which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant's circumstances or evidence about those expectations. The Tribunal is to be guided by the Government's views as to the expectations of the Australian community, which are to be found in the Ministerial Direction.
2. Paragraph 8.4 contains a statement of the Government's views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
3. The Respondent submits that paragraph 8.4(1) "points to the likelihood that community expectation will in most cases call for non-revocation, without dictating an inflexible conclusion. Generally, the question for the decision maker is the weight to be attached to this consideration." [105] The Respondent submits that the Applicant has failed to meet the expectations set out in paragraph 8.4(1), and because of the nature of the Applicant's offending it is now appropriate for the Tribunal not to revoke the cancellation of the Applicant's visa.
4. The Applicant submits that the expectations of the Australian community should be assessed in light of the Applicant's subject conduct having arisen in the aftermath of his relationship breakup after his having been with his former partner for nine years, and the mental health and sobriety issues that arose in that context, with these becoming contributing factors for the offending, for which the Applicant still nonetheless takes full responsibility.[106]
5. In relation to the particular matters specified in paragraph 8.4(2) of the Ministerial Direction, the Tribunal observes the following:

1. The Applicant has had two DVOs taken out in which he has been named as the respondent. These were in 2015 and in 2019, in the circumstances that have been described in these reasons. For the reasons elaborated in earlier parts of these reasons, the Tribunal concludes that although recognised as 'very serious' under paragraph 8.1.1(1)(a) of the Ministerial Direction, the nature of these acts of family violence now only gives rise to relatively low objective seriousness, once assessed in the manner required by paragraph 8.2(3) of the Ministerial Direction.
   1. forced marriage
2. There is no evidence, nor any suggestion, of matters as raised in paragraph 8.4(2)(b) being relevant in the case of the Applicant.
   1. commission of serious crimes against women, children or other vulnerable members of the community
3. There is no evidence, nor any suggestion, of matters as raised in paragraph 8.4(2)(c) being relevant in the case of the Applicant.
   1. commission of crimes against government representatives or other officials
4. There is no evidence, nor any suggestion, of matters as raised in paragraph 8.4(2)(d) being relevant in the case of the Applicant.
   1. involvement in human trafficking or people smuggling, or in crimes that are of a serious international concern
5. There is no evidence, nor any suggestion, of matters as raised in paragraph 8.4(2)(e) being relevant in the case of the Applicant.
   1. involvement in worker exploitation.
6. There is no evidence, nor any suggestion, of matters as raised in paragraph 8.4(2)(f) being relevant in the case of the Applicant.

1. The Tribunal concludes that Primary Consideration 4 must weigh against revocation of the visa cancellation decision. However, in an overall sense, and notwithstanding the seriousness that must inevitably attach to the Applicant's offending, Primary Consideration 4 weighs only moderately in favour of non-revocation of the visa cancellation decision.

1. Of the various other considerations listed in Paragraph 9(1) of the Ministerial Direction, only (b) (extent of impediments if removed), and (d), (links to the Australian community) are here relevant.

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

1. the non-citizen's age and health; 2. whether there are any substantial language or cultural barriers; and

1. any social, medical and/or economic support available to that non-citizen in that country.
2. The Applicant is aged 27 and is in generally good health. Although the Applicant has some aunts in PNG, he has no contact with any of them, and does not recall ever having met them, by reason of his having left PNG when aged just 15 months.[107] It is doubtful that these aunts are in any effective position to now assist the Applicant, in the event that he were to be deported to PNG. Given that the Applicant has lived virtually his entire life in Australia there are now apt to be very substantial language and cultural barriers for the Applicant, in the event that he is deported to PNG. The social, medical, and economic support that will likely be available to the Applicant in PNG - when assessed in the context of what is generally already available to other citizens of that country[108] - will be almost non‑existent.[109] The Applicant will be required to fend for himself on the streets of Port Moresby as a stranger in his own country, and is apt to be at great risk of homelessness, and criminal predation in PNG.
3. Overall, the extent of impediments that the Applicant may face in the event that he were to be mandatorily deported to PNG are apt to be extensive, very significant, and of more than merely short-term duration; such that this 'other consideration' now weighs very heavily in favour of revocation of the cancellation decision. The Tribunal attaches very substantial weight to this factor in support of revocation of the visa cancellation decision.

1. In consideration of this Other Consideration (d), paragraph 9.4 of the Ministerial Direction requires that decision makers must have regard to the following two factors, as set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:

9.4.1 The strength, nature, and duration of ties to Australia;

1. In the event of non-revocation of the visa cancellation decision, such that the Applicant were to be deported, the decision would have an immediate and direct impact on all of the Applicant's immediate family in Australia, being the Applicant's son and daughter, his mother, and father. In addition, there would be an impact on his step-siblings and on his cousins and uncles and aunts in Australia.
2. The Applicant is now aged 27 years and has been in Australia continuously since his first arrival in 1999, when aged approximately only 15 months. The Applicant has undertaken all of his education and trade training in Australia and is assessed as having made positive contributions to the Australian community during the periods of his employment. The Applicant did not offend in any significant and troubling way until the armed robbery offences in 2019, when aged nearly 25. The Applicant having been named as a respondent in two DVOs, whilst in itself very serious is nonetheless a matter that is now relatively low in objective seriousness, once assessed in the manner required by reference to paragraph 8.2(3) of the Ministerial Direction.
3. Overall, the strength nature and duration of the Applicant's ties to the Australian community are such that this other consideration weighs very strongly in favour of revocation of the cancellation decision.

9.4.2 The impact on Australian business interests.

1. Generally, this consideration will only be given weight where the decision would significantly compromise the delivery of a major project or the delivery of an important service in Australia.
2. The Applicant submits as follows:[110]

"As a qualified roof plumber in a country that is growing I believe that I will benefit the construction industry as a tradesman. I believe it has been getting harder to find qualified tradesmen as a lot of people I've worked with can't be bothered to do an apprenticeship. My expertise will go along (sic) way in the roofing industry as I thoroughly enjoy it and have plans of owning my own roofing business in the upcoming years."

1. The Tribunal accepts that roof plumbing is a specialist trade, and that shortages of qualified roof plumbers may compromise the delivery of an important service in Australia, particularly in the aftermath of cyclones and other weather events that may result in widespread roof damage, at a time when community demand for the services of qualified roof plumbers will also be high. However, this consideration may only be given weight in circumstances wherein the delivery of this important service would be 'significantly' compromised by a refusal to revoke the visa cancellation decision, and there is now insufficient evidence of that. Accordingly, only neutral weight attaches to the Tribunal's deliberations because of this factor.

1. The application of the Other Considerations in the present matter can be summarised as follows:
   • international non-refoulement obligations: Not applicable, thus neutral weight.
   • extent of impediments if removed: This other consideration weighs very substantially in favour of revocation of the cancellation decision.
   • impact on victims: Not applicable, thus neutral weight.
   • links to the Australian community:
     • strength, nature, and duration of ties to Australia: This other consideration weighs very strongly in favour of revocation of the cancellation decision
     • the impact on Australian business interests: Neutral weight in favour of revocation of the visa cancellation decision arises because of this other consideration.

1. The Tribunal is required to weigh all of the Considerations, in accordance with the Ministerial Direction:
   • Primary Consideration 1: moderate weight against revocation;
   • Primary Consideration 2: a small measure of weight against revocation;
   • Primary Consideration 3: a very heavy measure of weight in favour of revocation;
   • Primary Consideration 4: moderate weight against revocation.
   • Extent of Impediments: a very substantial measure of weight in favour of revocation.
   • Links to the Australian community: a very strong measure of weight in favour of revocation.
2. Application of the Ministerial Direction therefore favours the revocation of the cancellation of the Applicant's visa.
3. Consequently, I exercise the discretion in favour of the Applicant to revoke the cancellation decision applicable to the Applicant's visa.

1. The decision under review is set aside and substituted so that the discretion in s. 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of the Applicant's visa be exercised.

I certify that the preceding 163 (one hundred and sixty-three) paragraphs are a true copy of the reasons for the decision herein of Member McLean Williams

.................................[SGD].......................................

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

DECISION: Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the reviewable decision made by the delegate of the Respondent dated 2 February 2021 and substitutes a decision that the cancellation of the Applicant's visa be revoked under s501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

The Tribunal will give written reasons for this decision within a reasonable time of the decision.

..............................[SGD]................................

Respondent's Statement of Facts, Issues and Contentions (pages 1 to 17)

Respondent's Supplementary G Documents (pages 1 to 446)

Respondent's submissions on the DFAT report on PNG (pages 1 to 3)

Statutory Declaration and accompanying Statement from the Applicant's mother (four pages)

Images of the Applicant with his children (three images)

Letter of Support from the Applicant's father (one page)

Copy of birth certificate of the Applicant's daughter (one page)

Copy of birth certificate of the Applicant's son (one page)

Letter of support from Director of Rapid Roof Solutions Pty Ltd (one page)

Certificate of evidence of resident status (one page)

Certificate of apprenticeship in roof plumbing (one page)

Applicant's email re Lives Lived Well participation and attached 'Client Rights, Privacy & Consent Information - Adults' form

The Applicant's 'My relapse prevention plan' (four pages)

Applicant's Statement of Facts, Issues and Contentions (six pages)

Email from Volunteering QLD to the Applicant re volunteering opportunities in Queensland

Letter from Lives Lived Well counsellor re appointments with Applicant (one page)

Applicant's submissions on the DFAT report on PNG (7 pages)

[7] Exhibit G1, G14, page 85; Exhibit A14.

[9] Transcript 14 April 2021, page 4, lines 31 to 47; page 4, lines 1 to 9.

[13] Transcript 14 April 2021, page 10, lines 20 and 21; G14, page 79.

[14] Transcript 14 April 2021, page 14, lines 14 to 17; page 57, lines 36 to 39; Exhibit A14.

[18] Transcript 14 April 2021, page 11, lines 3 to 18.

[19] Transcript 14 April 2021, page 12, lines 9 to 17.

[20] Transcript 14 April 2021, page 12, 21 to 24.

[21] Transcript 14 April 2021, page 13, lines 9 to 12.

[22] Transcript 14 April 2021, page 13, lines 26 to 42.

[23] Transcript 14 April 2021, page 13 and 14.

[26] Transcript 14 April 2021, page 14, lines 19 to 25 & lines 32 to 37.

[28] Exhibit A14; Transcript 14 April 2021, pages 14 and 15.

[30] Transcript 14 April 2021, page 15, lines 15 to 21.

[31] Transcript 14 April 2021, page 15, lines 41 and 42.

[32] Transcript 14 April 2021, page 15, lines 40 to 46.

[33] Transcript 14 April 2021, page 18.

[34] Transcript 14 April 2021, page 17, lines 9 to 15.

[35] Transcript 14 April 2021, page 19, lines 39 to 41.

[36] Transcript 14 April 2021, page 27, lines 26 to 29; Exhibit R2, pages 387 and 388.

[37] Transcript 14 April 2021, page 28, lines 1 to 14.

[38] Transcript 14 April 2021, page 28, lines 28 to 31.

[39] Transcript 14 April 2021, page 28, lines 39 and 40.

[40] Transcript 14 April 2021, pages 19 and 20.

[41] Transcript 14 April 2021, page 26, lines 26 to 47; page 27, lines 1 to 11.

[42] Transcript 14 April 2021, page 23, lines 23 to 30.

[43] Transcript 14 April 2021, page 20, lines 15 to 17.

[45] Transcript 14 April 2021, page 25, lines 11 to 19.

[48] Transcript 14 April 2021, page 43, lines 45 to 46; page 44, lines 1 to 47; page 45, lines 1 to 45; page 45, lines 1 to 9.

[49] Transcript 14 April 2021, page 46, lines 25 to 29.

[50] Transcript 14 April 2021, page 38, lines 42 to 44; page 39, lines 1 to 4.

[52] Transcript 14 April 2021, page 41, lines 11 to 15.

[53] Transcript 14 April 2021, page 67, lines 24 to 30.

[54] Transcript 14 April 2021, page 65 to 66.

[55] Transcript 14 April 2021, page 67, lines 1 to 20.

[56] Transcript 14 April 2021, page 38, lines 6 to 14.

[57] Transcript 14 April 2021, page 40, lines 1 to 5.

[58] Transcript 14 April 2021, page 75, lines 12 to 19.

[62] Transcript 14 April 2021, page 39, lines 9 to 21.

[63] Transcript 14 April 2021, page, 41, lines 4 and 5.

[64] Transcript 14 April 2021, page 41, lines 11 to 24.

[65] Transcript 14 April 2021, page 41, lines 1 to 30.

[66] Transcript 14 April 2021, page 27, lines 8 and 9.

[67] Transcript 14 April 2021, page 30, lines 43 to 46; page 31.

[69] Exhibit G1, G3, page 31 and 32; Exhibit R2, page 421.

[74] Transcript 14 April 2021 page 31, 77 and 78.

[75] Transcript 14 April 2021 pages 77 and 78.

[76] Transcript 14 April 2021, pages 78 and 79.

[79] Transcript 14 April 2021, page 54.

[83] Transcript 14 April 2021, page 50.

[85] Exhibit G1, G13, and G25, page 213

[86] Transcript 14 April 2021, page 55.

[89] [2018] FCA 594.

[93] Exhibit R1, paragraph 51; Transcript 15 April 2021, page 114.

[97] Ministerial Direction paragraph 8.2(1).

[98] Exhibits A8; A11; A12; A13; A15; A16; A17; G1, G14, page 90 to 156.

[99] Transcript14 April 2021, pages 55 and 56.

[101] Exhibit R1, paragraphs 60 to 65.

[103] Transcript 14 April 2021, pages 18, 32, 33, 58, 62 to 79, and 78. CS also said (at page 68), in relation to his own partner, Ms L that she would "definitely look after them." However, he also added that "then again, she is in her sixties as well, she'd older than me, if you know what I mean". The Tribunal does not consider Ms L to be an alternate option as guardian for the children, in the absence of CS.

[104] Transcript 14 April 2021, pages 67 and 78.

[107] Transcript 14 April 2021, page 8.

[109] Department of Foreign Affairs and Trade, 'DFAT Country Information Report, Papua New Guinea', 10 February 2017, pages 5 and 7; and Exhibit A20.