Whether there is another reason the visa cancellation decision should be revoked

1. The issue for the Tribunal is, therefore, whether there is another reason the decision to cancel the Applicant's visa should be revoked. The Tribunal is required to have regard to Direction 110 in deciding whether to revoke the cancellation decision.

1. Paragraph 8.1 of Direction 110 provides that when considering the protection of the Australian community, the Tribunal is required to keep in mind that the safety of the Australian community is the highest priority of the Australian Government.[25] In addition, it provides that the Tribunal give consideration to the nature and seriousness of the Applicant's conduct and the risk to the Australian community should the applicant commit further offences or engage in further serious conduct.[26]

1. In considering the nature and seriousness of the applicant's offending or other serious conduct, the Tribunal is required to consider those factors detailed in paragraph 8.1.1 of Direction 110. The Direction indicates that violent crimes are viewed seriously by the Australian Government and the Australian community.
2. In this case, the Nationally Coordinated Criminal History Check dated 16 October 2024[27] (the National Police Check) indicates the applicant has an extensive criminal history that commenced in 2008 as a minor. As a youth the applicant committed offences relating to theft, property damage and driving. In 2012 the applicant was ordered to be detained in a youth justice centre for a period of 5 months. The Tribunal notes that it is precluded from considering the applicant's youth offending which did not result in any conviction.[28]
3. On 11 April 2013, the applicant was convicted of various offences that included theft, arson, possession of a firearm and aggravated burglary for which he received a sentence of 18 months' imprisonment.[29]
4. On 10 June 2014, the applicant was convicted of drive conveyance taken w/o consent of owner and negligent driving for which he was sentenced to a period of three months' imprisonment, wholly suspended upon entering a 12-month bond.[30] The applicant breached the terms of the bond and was required to serve the period of imprisonment.
5. On 8 July 2015 was convicted of take and drive conveyance w/o consent of owner, and police pursuit for which he was sentenced to a period of 6 months' and 2 months imprisonment respectively.[31] On 30 November 2016 the applicant was convicted of various offences including reckless driving, police pursuit dive motor vehicle during period of disqualification for which he received custodial sentences.[32] The sentencing remarks on 30 November 2016 noted that there were four separate and discrete matters that occurred on 27 December 2015 and 3 January 2016, all involving driving in a dangerous manner while on drugs. The applicant was regularly using cannabis and methamphetamines during this period.[33]
6. On 8 October 2019, the applicant was convicted in Moorabbin Magistrates' Court on fifteen separate charges (the Moorabbin offences), for which he was sentenced to a total period of 27 months' imprisonment for the following convictions:[34]
   • three counts of Theft of a motor vehicle.
   • four counts of Theft.
   • six counts of Unlicensed driving.
   • four counts of Reckless conduct endanger life; Theft - from shop (shopsteal); Unlawful assault; Intentionally destroy property; Make threat to kill; Threat to kill
   • damage property.
   • three counts of Dangerous driving while pursued by police.
   • two counts of Drive at a speed dangerous.
   • two counts of Drive in a manner dangerous.
   • four counts of Fail to stop vehicle on police direction.
7. The applicant's conviction of resisting an emergency worker on duty is considered serious by the Australia government and the Australia community.[35]
8. Following his release from immigration detention, the applicant was convicted of the index offending on 20 May 2024. This offence was committed on 3 March 2017.[36] That is, prior to the applicant having his visa cancelled on the first occasion on 23 August 2021. As a result of the AAT's decision on 5 December 2023 the applicant's visa was restored. The Tribunal notes that the index offending was before the AAT and specifically referred to by Deputy President Britten-Jones in his written reasons dated 5 December 2023_._[37] Notwithstanding this fact on 30 May 2024, the applicant's visa was cancelled under s 501(3A) of the Act.[38] At the time of having his visa cancelled for a second time, despite having been convicted of the index offending on 20 May 2024, the applicant had not committed any further crimes beyond what was before the AAT at the time of its review decision of the applicant's first visa cancellation.
9. Nevertheless, the applicant's National Police Check reveals that the applicant has been convicted of numerous serious driving offences (including dangerous driving, driving whilst disqualified), property offences, dishonesty offences, drug offences, and offences against the person. The continual and repeated offending of the applicant is also considered serious by the Australian Government and the Australia community.[39] By repeat offending the applicant has exhibited disregard for the laws of Australia and the safety of others.
10. The applicant's criminal history shows that he has been sentenced to multiple terms of imprisonment for his offending.[40] The Tribunal notes that sentences involving terms of imprisonment are the last resort in the sentencing hierarchy[41] and as such reflect on an objective basis the seriousness of the applicants offending.
    1. Finally, the cumulative effect of the applicant's repeated offending has resulted in significant expense to the community including the use of police and court resources.[42] The applicant's conduct has demonstrated a lack of respect for others within the community and a wilful disregard for the law and authority.
    2. The Minister submits[43] that the applicant's index offending is very serious for the purposes of paragraph 8.1.1 of Direction 110,[44] and that the nature of the applicant's conduct is so serious that even strong countervailing considerations are insufficient to justify there being another reason to revoke the mandatory cancellation of the applicant's visa.[45]
    3. Having considered paragraph 8.1.1 of Direction 110, based on applicant's criminal history, the Tribunal finds the nature of the applicant's conduct to be serious and as such weighs heavily against revocation. As a result, the Tribunal places significant weight on this consideration in favour of affirming the cancellation decision.

1. Paragraph 8.1.2 of the Direction 110 provides that in assessing whether the applicant represents an unacceptable risk of harm to the Australian community, the Tribunal must have regard to, cumulatively:

(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and > > (b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account information and evidence on the risk of the non­citizen re-offending and any evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence.

2. As such the Tribunal is required to assess the risk posed to the Australian community if the applicant re-offends, taking into consideration the nature of any harm and its probability. In Tanielu v Minister for Immigration and Border Protection,[46] Mortimer J stated that to determine an unacceptable risk, one must evaluate what the consequences of re-offending are as well as the likelihood of the person engaging in that conduct in the future. The courts have held that past actions are legitimate predictors of future behavior.[47] In Murphy v Minister for Home Affairs, Mortimer J noted:[48]

'That is, part of the Tribunal's task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be tolerated.'

3. In Minister for Immigration and Ethnic Affairs v Guo (Guo),[49] the High Court considered the extent to which past events can be a guide to the future. The Court stated:

'Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence.'

1. Accordingly, in determining the chance of something happening in the future it is necessary to form a conclusion about past events.[50] That is, it is a question of degree what will happen in the future based on past events. In Guo the court held that:[51]

'The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity....'

(i) Nature of Harm if further criminal or other serious conduct - paragraph 8.1.2(2)(a)

1. As to the nature of harm to individuals or the Australian community if the applicant engages in further criminal or other serious conduct,[52] the Tribunal accepts that if the applicant was to re-offend in the future in the same or similar manner, he will likely cause serious harm to members of the community. The applicant has committed numerous offences involving high speed driving high-speed and dangerous driving in which he has exhibited wilful disregard for the public and the safety of his own children. Reoffending of the same nature would give rise to a real risk of physical harm, or even death, of members of the public, or the applicant's family.
2. The applicant has also committed an act of family violence against his former partner. Any reoffending would put not only the victim at immediate risk of physical harm, but all members of the applicant's family unit, including his children, at risk of emotional and psychological harm because of being exposed to family violence.

(ii) Likelihood of further criminal or other serious conduct - paragraph 8.1.2(2)(a)

3. The respondent has submitted the applicant is a recidivist and as a result the Tribunal should not be satisfied that the applicant would abstain from his use of drug and alcohol and as a result the applicant presents as a real risk of reoffending if released into the community.
4. The Tribunal was provided a psychological report by Mr Jeffrey Cummins dated 25 September 2023[53] that stated the applicant did not present as being psychotic or schizophrenic. It stated that he provided a history that was consistent with a diagnosis of generalised anxiety disorder and him suffering from symptoms of major depressive disorder. Mr Cummins stated that in his opinion the applicant's criminal record was consistent with him suffering from antisocial personality disorder and /or a person suffering for Complex Post-Traumatic Stress Disorder (PTSD) and associated symptoms of anxiety and depression. It was his opinion these symptoms played a role in the applicant offending.[54] Mr Cummins noted that at the time of his report the applicant had not committed any offences for some time and assessed the applicant has having low to moderate (trending towards low) risk of reoffending.[55] He noted the applicant's risk of reoffending can be further reduced if he engages in an anger management program and by him receiving basic mental health treatment.[56]
5. The Tribunal notes that in detention in 2025 the applicant has displayed disruptive and abusive behaviour including threats to self-harm.[57] Nevertheless, the applicant has displayed that he can avoid trouble.[58] From March 2017 for a period of approximately 18 months, the applicant remained drug free while living with his former partner. The applicant remained drug free and worked at various business manufacturing roof trusses. The applicant took the antipsychotic, Seroquel, allowing his mental health to stabilise. When his daughter was born, and faced with the pressure of a newborn baby, the applicant took himself off his medication and began taking cannabis and ice that lead to his offending in November 2018.[59]
6. The applicant has expressed his regret for his actions. He has realised that his actions were stupid and that they may have resulted in harm.[60] The applicant's evidence to the Tribunal was that he was sorry for his actions. He accepted his offending and expressed his regret and remorse for his actions. The applicant also expressed his frustration and anger that his visa had been cancelled for a second time, and that he was in immigration detention after being convicted of the index offending on 20 May 2024. In circumstances, where he has not committed any further offences beyond those that were considered when his visa was first cancelled, the applicant considers it unfair that his visa had been cancelled for a second time and he is in immigration detention.
7. The applicant's evidence was that he wants to be a good father to his children. He claims to have a close relationship with each of his children and he wants the opportunity to be a good dad to each of them.[61] The applicant's evidence to the Tribunal was that he had limited contact with his children because of his incarceration as a result he had limited knowledge of their activities at school or of their interests or hobbies. Nevertheless, he claims to have matured and learnt for his mistakes. The applicant relied on the documents provided to the AAT in relation to the review of the first cancellation decision. In that case the applicant presented a positive reference for his employer, City Wide Scaffolding, who stated that he was an exceptional asset to the firm and that he was a reliable and hard worker. It was not clear what the applicant's current situation would be if he is released into the community. Nevertheless, before the AAT, City Wide was prepared to employ the applicant as a leading hand if he was released into the community.[62]
8. The applicant's evidence was that he identified with the Yorta Yorta community and that he would be supported by that community if his visa is restored.[63]
9. The applicant expressed a genuine desire to remain out of trouble for the sake of his children if he is released into the community. Nevertheless, it is likely he will face difficulties and stress in the community due to his mental health. As a result, there is a risk he will respond inappropriately to stressful situations he may face. This time at least there appears to be no outstanding charges which he will have to face with if realised. The Tribunal accepts that the applicant is remorseful for his actions and that he holds a genuine desire to remain drug and alcohol free for the benefit of his children. While the Tribunal recognises there is a risk of the applicant reoffending, it has placed great weight on the fact that the applicant had expressed his genuine remorse for his actions and a desire to be good for his children. In circumstances where the applicant no longer faces criminal conviction upon his release the Tribunal accepts there is less stress in his life that may trigger the facts causing him to reoffend. As such, having taken the applicant's evidence into account and the Cummins report the Tribunal finds that the risk of the applicant offending is low to moderate. As a result, the Tribunal places only moderate weight against revocation.

1. The Tribunal notes that paragraph 5.2(8) of Direction 110 provides:

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

1. Direction 110 defines family violence to mean 'violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member) or causes the family member to be fearful'. The examples of behaviour that may constitute family violence include assault and a sexual assault or other sexual abusive behaviour.[64]
2. Paragraph 8.2 of Direction 110 provides that the Australian Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Tribunal notes that paragraph 8.2(2) of Direction 110 provides that this consideration is relevant in circumstances where there is information from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence and the non-citizen has been afforded procedural fairness.
3. In assessing the seriousness of the family violence, paragraph 8.2(3) of Direction 110 provides that the Tribunal must consider:

(a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;

b) the cumulative effect of repeated acts of family violence;

c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:

1. the extent to which the person accepts responsibility for their family violence related conduct;
2. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
3. efforts to address factors which contributed to their conduct; and

d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be 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. On 8 October 2019, the applicant was convicted of the Moorabbin offences that included the applicant threatening and physically assaulting his former partner. Their relationship had ended approximately 3 months prior to the incident. At the time of the assault, the applicant's former partner was holding their 10-month baby and was pregnant with the applicant's second daughter.[65] The applicant took the baby and proceeded to threaten to kill himself and the baby if he was approached by the police. The applicant fled in a car with the baby, hitting his former partner with the door of the car as he departed.[66] A police pursuit ensued, involving the applicant driving while unlicensed, exceeding the speed limit and driving erratically while the baby remained in the car endangering the baby's life and those in the community.[67]
2. The Tribunal is satisfied that the applicant's offending against his former partner and his baby constitute family violence for the purposes of paragraph 4 of Direction 110.[68]
3. The applicant's former partner did not present any evidence to the Tribunal. However, its noted that she did provide a letter of support for the applicant to the AAT[69] (a copy of which was provided to the Tribunal) in which she stated he had seen change in his personality, his mental health and his actions by which she believed that he was remorseful for his actions. The Tribunal also notes that when the applicant was sentenced on 8 October 2019 she was in court in support of the applicant. The applicant's counsel at the hearing stated to the court that the applicant and his former partner had been friends for 11 or 12 years and in a relationship for the past three years.
4. In addition, the applicant provided a letter to the AAT dated 21 October 2021[70] (the October letter) (a copy of which was provided to the Tribunal) in which he expressed his remorse for his actions. He states (amongst other matters) that he will forever regret the day he pushed, harmed and frightened the mother of his children.[71] The applicant's evidence to the Tribunal was that he continued to rely on the contents of the October letter.
5. The evidence indicates one episode of family violence with no evidence of repeated offending. The Tribunal has accepted that the applicant is genuine in the remorse for his actions. The applicant has not engaged in formal rehabilitative programmes but had engaged in more general programs such as Certificate 1 in General Education for Adults.[72] The Cummins report notes that his insight into his offending has improved and his risk of re offending is low to moderate. Finally, his former partner has expressed her support for the applicant in the past.
6. The government has serious concerns about conferring on non-citizens who engage in family violence the privilege of remaining in Australia.[73] The government's concern in this regard is proportionate to the seriousness of the family violence engaged in by the non-citizen.[74] In this case the applicant's behaviour toward his former partner was serious and he did place his infant child in danger. The applicant's conduct caused the victim to be fearful and no doubt has had an adverse effect on her. Nevertheless, it appears the family violence incident was an isolated event and fortunately did not result in any significant injury. The applicant has expressed his remorse, and the victim has previously expressed her support for the applicant.
7. In all the circumstances, given the objective seriousness of the offending, the Tribunal finds that the family violence is a factor that weighs against the applicant. As such, the Tribunal has given moderate weight to this consideration against revocation of the delegate's decision

The strength, nature and duration of ties to Australia

1. Paragraph 8.3(1) of Direction 110 provides that the Tribunal must consider any impact of the decision on the non-citizen's immediate family members in Australia. In this case, the applicant's immediate family in Australia are his mother, two sisters and brother. The applicant also has nieces and nephews who are residing in Australia (applicant's family)
2. Paragraph 8.3(2) of Direction 110 sets out factors to be considered in determining the strength, nature and duration of ties that the Applicant has to the Australian community, having regard to:

(a) how long the Applicant has resided in Australia, including whether the Applicant arrived as a young child, noting that:

1. less weight should be given where the non-citizen began offending soon after arriving in Australia; and

1. more weight should be given to time the non-citizen has spent contributing positively to the Australian community

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

Impact of the decision on immediate family members in Australia

1. With respect to the consideration of the impact that a non-revocation decision would have on the applicant's immediate family, the Tribunal accepts that the applicant has familial ties to Australia.[75] The applicant was adopted by Australian parents.[76] He arrived in Australia when he was about 4 years old. As a result, he has spent the vast majority of his life in Australia. In addition, the applicant has three children,[77] an adopted sister,[78] three nieces and nephews[79] in Australia. In contrast the applicant has no ties to New Zealand.

Length of time spent in Australia and positive contributions to the community

1. The Tribunal has given significant weight to the fact that the applicant has been in Australia most of his life, the fact that he has extended family members in Australia including his adopted sister and that fact that he has children in Australia.
2. The applicant has limited work experience in Australia. Nevertheless, the Tribunal notes that he did work for a period of 18 months when his third child was born.
3. The applicant has developed ties to community through his association with the Yorta Yorta community in and about Shepparton, Victoria during his formative years. The ties to the community are significant to him. The applicant provided a statement[80] in which he described his connection to the Yorta Yorta community in and around Shepparton. The applicant described the period he spent with the community and in particular the Elders in the community as important to him. The applicant's evidence was that he was often take camping by the Elders in the community with other Yorta Yorta boys. He was treated the same as the other boys and included in their community. The applicant described the connection to the Yorta Yorta country as feeling like home.[81] The Tribunal accepts the applicant's evidence in relation to his connection to the Aboriginal community, and particularly the Yorta Yorta community, as claimed.
4. The Tribunal notes that the applicant's ties to the Yorta Yorta community were made during his formative years. In addition, his former partner and his two daughters are Aboriginal. As such, the Tribunal finds that the applicant's connection to the Yorta Yorta community is strong. Accordingly, the Tribunal accepts that if he forcibly removed from Australia, it would significantly affect him, his Aboriginal family and those in the Yorta Yorta community with who he continues to associate.
5. As such, the applicant's connection to the Aboriginal community weight heavily in favour of the applicant. Accordingly, the Tribunal places significant weight in favour of the revocation of the cancellation decision.

Best interests of minor children in Australia

1. Paragraph 8.4 of Direction 110 requires decision-makers to determine, where relevant, whether revocation is in the best interests of any minor children in Australia. This provision applies only if the child is, or would be, under 18 years old at the time of the application.
2. In this case, the applicant has identified three minor children in Australia:[82]

(a) his son, born 11 September 2010 (aged 15).

(b) his daughter, born 26 January 2018 (aged 7).

(c) his daughter, born 7 May 2019 (aged 6).

1. The applicant has limited contact with his children in recent times because he has been incarcerated. Nevertheless, he maintained that he would reestablish contact in the event he is released into the community. When asked about details of his children, the applicant struggled to provide details of his children's school, their progress at school and their personal activities and hobbies. The applicant provided letters from his son expressing his desire to see him.[83] In addition he provided photos of him with his children.
2. The applicant's evidence[84] was that his son was brought up by his grandparents on his mother's side. However, as they became older his son was cared for by his former partner's brother. The applicant's evidence to the Tribunal was that his son is currently being cared for by his former's partners sister (his aunty). He claims he speaks to his son regularly.
3. The applicant's evidence was that his daughters' mother is a Yorta Yorta woman. As a result, both his daughters are registered as Aboriginal Australians with the department of Human Services. His evidence was that his eldest daughter attended Koori First Steps Preschool in Wodonga. Both his daughters are living with their grandmother (his former partner's mother).
4. The best interests of the children is a significant factor in favour of not revoking the cancellation decision. The Tribunal gives this consideration very significant weight in favour of revoking the cancellation decision.

1. Paragraph 8.5(1) of Direction 110 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
2. Further, paragraph 8.5(2) of Direction 110 provides that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. Finally, paragraph 8.5(3) states that this expectation applies regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community.
3. Critically, 8.5(4) states:

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

1. In FYBR v Minister for Home Affairs,[85] the Federal Court stated that the paragraph imputed or ascribed to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[86] Nevertheless, it remains an issue for the Tribunal as to the weight that should be given to this consideration in making its decision.[87] In doing so the Tribunal is required to consider the specific circumstance of the applicant's case.[88]
2. In considering the weight to be attached to the expectation of the Australia community in determining whether there is another reason to revoke the cancellation decision, the Tribunal places significant weight on the fact that the applicant has Aboriginal children and that he has identified with the Aboriginal community through his involvement with the Yorta Yorta people and his inclusion into their community.
3. In addition, the Tribunal has considered the fact that the applicant was adopted by Australian parents and has lived most of his life in Australia (since the age of 4). The applicant has no history or connection to New Zealand. In addition, in his formative years he developed a strong and significant relationship with the Elders of the Yorta Yorta community. He has expressed his remorse for his actions and has had the support of his adopted parents, adopted sister and his former partner.
4. It is the general expectation of the community that the government will not allow non-citizens who have engaged in a serious breach of Australian laws to enter or remain in Australia.[89] The Tribunal notes that community expectations apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community.[90]
5. In this case the applicant has committed a serious offence and as such the Tribunal accepts that with respect to the expectations of the Australian community, it is a factor that weighs against the applicant and in favour of non-revocation. However, in this case, the Tribunal is of the view this consideration would not outweigh the applicant's strength, nature and duration of ties to Australia in circumstances where the applicant has significant connection to the Aboriginal community. As such, the Tribunal has given this consideration no weight.

1. In deciding whether there is 'another reason' to revoke the cancellation of the applicant's visa, the Tribunal must consider the 'other considerations' listed in Direction 110. These considerations are not exhaustive.[91]

9.1 Legal consequences of decision under section 501 or 501CA

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

(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of 'protection obligations', reflects Australia's interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.

(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.

1. The applicant is not a non-citizen covered by a protection visa finding for the purposes of paragraph 9.1.1 of Direction 110. The applicant does not raise any claims which may give rise to Australia's non-refoulment obligations for the purposes of paragraph 9.1.2 of Direction 110. As such this consideration is not relevant to the decision of the Tribunal. The Tribunal gives this consideration no weight.[92]

1. Paragraph 9.2 of Direction 110 requires the Tribunal to consider any impediments that the Applicant may face if removed from Australia to New Zealand in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country).
2. The applicant is 32 years old. He suffers from mental health issues which could be treated if he was removed to New Zealand. The applicant would not experience any substantial language or cultural barrier of he was removed to New Zealand, and he would be entitled to medial and economic support on the same basis as other New Zealand citizens. Nevertheless, the Tribunal accepts that the applicant would experience a significant period of adjustment in the event he was returned to New Zealand.
3. The Tribunal acknowledges and accepts that if the applicant was removed to New Zealand, he would be prevented for maintaining his connection to the Yorta Yorta community which would impact the applicant.
4. Nevertheless, the Tribunal gives this consideration no weight.

1. Paragraph 9.3 of Direction 110 provides that a decision maker must have regard to any impact on Australian business interests if the non-citizen is not allowed to remain in Australia.
2. There is no evidence to suggest that the applicant's removal will impact any current Australian business interests. Accordingly, the Tribunal gives this consideration no weight.

1. The Tribunal has considered the specific circumstances in relation to the applicant. Given the applicant does not pass the character test, the Tribunal is required to weigh the relevant factors to determine whether it is satisfied that there is another reason to revoke the cancellation decision.
2. The primary consideration is the protection of the Australian community. I consider the three primary considerations of the protection and expectations of the Australian community and family violence weigh against revoking the cancellation decision. The applicant has failed to obey the laws of Australia and as such the expectations of the community are that he would be removed. The Tribunal must also consider the applicant's ties to Australia and the best interests of the children. On balance the Tribunal finds that the applicant's ties to Australia and the best interests of his children outweigh the primary considerations.
3. In this case there is not an unacceptable risk of harm if the applicant is released into the community. The applicant's act of family violence was an isolated incident being out of step with the rest of his offending. In addition, the applicant's risk of reoffending was assessed as low to moderate. Further, it is in the best interests of his children for the applicant to be in the community. The applicant has expressed a genuine desire to be connected to his children and to play a role in their lives. The applicant's eldest child is now 15 years old and has previously expressed a strong desire to be acquainted with his father. The applicant's daughters are both young and would benefit from having their father in the community. Finally, the applicant has a significant connection to the Yorta Yorta community together with his daughters. As a result, his ties to the country are significant and presents as a very strong consideration in favour of revoking the cancellation decision.
4. As such, the Tribunal is satisfied that countervailing considerations outweigh the protection and expectations of the Australian community and family violence such that the cancellation decision should be revoked.

1. The decision of the tribunal is to set aside the non-revocation decision and substitute a decision that the cancellation decision is revoked.

I certify that the preceding one hundred and eight (108) paragraphs are a true copy of the reasons for the decision herein of General Member J Pennell.

............[sgd]............................

[2] HB1 478; Thompson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4206 (16 November 2021).

[3] HB1 522; Thompson v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 161.

[4] HB1 607; Thompson and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4076 (5 December 2023).

[10] (2020) 270 CLR 152.

[14] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125; (2021) 285 FCR 187, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O'Bryan J).

[15] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 ('Plaintiff M1/2021') [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ).

[16] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 [23].

[21] Migration Act 1958 (Cth) s 501(7).

[28] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17; Lesianawai v Minister for Immigration [2024] HCA 6.

[35] Paragraph 8.1.1(1)(b) of Direction 110.

[39] Paragraph 8.1.1(1)(c)(e) & paragraph 8.1.1(1)(c)(f) of Direction 110.

[41] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].

[42] Paragraph 8.1.1(1)(f) of Direction 110.

[43] Respondents Statement of Facts, Issues and Contentions; HB2 641-56.

[44] Paragraph 8.1.1(1)(b)(ii) of Direction 110.

[45] Paragraph 5.2(7) of Direction 110.

[46] Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; [2014] FCA 673.

[47] Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 144 ALR 567, 578-579; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133, [81]; Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120, [63].

[48] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].

[49] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 574.

[52] Paragraph 8.1.2(2)(a) of Direction 110.

[64] Paragraph 4(1)(a) and (b) of Direction 110.

[73] Paragraph 8.2(1) of Direction 110.

[75] paragraph 8.3(1) of Direction 110.

[85] [2019] FCAFC 185.

[86] FYBR v Minister for Home Affairs [2019] FCAF 185; 272 FCR 454, [66]-[67], [91], 101] and [104].

[88] Kelly v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 396, [98]-[109] (Beach J).

[89] Paragraph 8.5(2) of Direction 110.

[90] Paragraph 8.5(3) of Direction 110.

[91] SZRTN v Minister for Immigration and Border Protection [2014] FCA 303; (2014) 141 ALD 395, 409 at [86].

[92] Stoneley v Minister for Immigration and Multicultural Affairs [2025] FCA 143 at [32]-[38] per Charlesworth J.