1. Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a visa granted to a non-citizen if the Minister is satisfied the person does not pass the character test. This includes if the non-citizen has been sentenced to a term of imprisonment of 12 months or more. The Minister is required under s 501CA(3) of the Act to provide notice of the cancellation decision as soon as practicable and invite the affected person to respond. Under s 496 of the Act, the Minister may delegate these powers.
2. Section 501CA(4) allows for the revocation of a decision under subsection 501(3A) of the Act. Relevantly, s 501CA(4) states:

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

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

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

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

1. Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.
2. Section 501(6) of the Act defines the 'character test.' Relevantly, in part, s 501(6) states:

(6) For the purposes of this section, a person does not pass the character test if:

(a) the person has a substantial criminal record (as defined by subsection (7)); or........

1. Section 501(7) provides that a person has a 'substantial criminal record' if the person has been sentenced to a term of imprisonment of 12 months or more.
2. If an Applicant fails the character test, the issue to be determined under s 501CA(4)(b)(ii) of the Act is whether the discretion to revoke the cancellation decision is enlivened by the Tribunal's satisfaction that there is 'another reason' to do so.[11] In Plaintiff M1/2021,[12] the High Court referred to how representations made under s 501CA(4) of the Act should be approached:
   1. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is "another reason" why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is "another reason" for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is "another reason" for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.

25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form, and content of the representations. The requisite level of engagement - the degree of effort needed by the decision-maker - will vary, among other things, according to the length, clarity, and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated, or which do not clearly arise on the materials before them. (Citations omitted).

1. On 7 June 2024, Direction No.110 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA ('Direction 110') came into effect. Direction 110 sets out the principles that provide a framework within which a decision maker should approach the task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. It is binding on the Tribunal in performing its functions or exercising powers under s 501 of the Act.
2. Paragraph 5.2 of Direction 110 provides a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation.
3. The primary considerations in making a decision under s 501(1), 501(2) or 501CA(4) are detailed in paragraph 8 of Part 2 of Direction 110:

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

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

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

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

(5) expectations of the Australian community.

1. Paragraph 9 of Direction 110 details other considerations where relevant, that must be considered. These are:

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

2. A decision maker is required to give greater weight to primary considerations under paragraph 8 than to other considerations pursuant to paragraph 9. In Suleiman v Minister for Immigration and Border Protection,[13] Colvin J when considering an earlier Direction stated:[14]

'Direction 65 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.'

(a) does the Applicant pass the character test, as defined in s 501 of the Act? If not; > > (b) is there another reason why the original decision should be revoked?

1. The following statements were provided to the Tribunal in support of the Applicant's application for review:

(a) Applicant's witness statement dated 4 December 2024.[15]

(b) Applicant's witness statement dated 25 March 2025.[16]

(c) Statement by Brittani-Leigh E dated 27 February 2025.[17]

(d) Statement by Brittani-Leigh E dated 19 September 2025.[18]

(e) Letter by Sharon Marks dated 26 November 2024.[19]

(f) Statement by Sharon Marks dated 20 September 2025.[20]

(g) Statement by Crystal Johanna Rohl dated 7 March 2025.[21]

(h) Psychologist Statement by Sam Abassit dated 21 September 2025.[22]

(i) Statement by Jarid Bruen dated 16 September 2025.[23]

(j) Letter by Alexandra Paneras dated 2 September 2025.[24]

(k) Statement by Debra Jayne Paneras dated 14 August 2025.[25]

(l) Statement by Victoria Paneras dated 2 September 2025.[26]

(m) Statement by Doreen Anderson dated 27 August 2025.[27]

(n) Statement by Hannah. E dated 14 August 2025.[28]

(o) Statement by James. E dated 14 August 2025.[29]

(p) Letter by Peter Ainsworth, Chaplain Clarence Correctional Centre dated 10 September 2025.[30]

(q) Statement of Victoria Firth dated 13 September 2025.

(a) Applicants Statement of Facts, Issues, and Contentions dated 22 September 2025.[31]

(b) Respondent's Statement of Facts, Issues, and Contentions dated 7 October 2025.[32]

(c) Applicant's Reply dated 12 October 2025.[33]

(d) Respondent's Amended Statement of Facts, Issues, and Contentions dated 15 October 2025.[34]

(e) G Documents.

(f) Hearing Book.

1. The Tribunal was provided with a copy of the Nationally Coordinated Criminal History Check dated 18 December 2024[35] detailing the applicant's criminal history. The applicant has a modest criminal history that commenced soon after his arrival in Australia.
2. On 24 October 1989 the NSW Local Court at Castlereagh St convicted the applicant of Larceny as a Servant (x 3 counts) for which he received a bond and $00.00 fine for each count.[36]
3. On 26 July 1999 the NSW Local Court at Penrith convicted the applicant of High PCA-drive motor vehicle for which he received a $1,500 fine and 198 months disqualification of his driver's license.[37]
4. On 3 April 2012 the NSW Local Court at Blacktown convicted the applicant of destroy or damage property for which he received a 12-month bond.[38]
5. On 16 January 2013 the NSW Local Court at Port Macquarie convicted the applicant of Contravene prohibition/ restriction in AVO (domestic) for which he given a fine of $200.00
6. On 23 March 2022 the NSW Local Court at Port Macquarie convicted the applicant of Drive with mid-range PCA for which he was sentenced to a fine of $800.00 and disqualified from driving for 3 months.[39]
7. On 17 September 2024, the applicant was sentenced by the District Court of New South Wales at Port Macquarie for the index offending for which he received an aggregate term of five years imprisonment with a non-parole period of 2 years and 6 months.[40]
8. In his sentencing remarks[41] the Judge referred to the applicant's relationship with his former partner Ms E. He noted that the applicant and Ms E had been in a relationship for approximately seven to eight years and have two young children. Their relationship had been 'on and off' but broke down in mid-2022. They had lived together in xx Street, Port Macquarie (the xx Street). After the break down of their relationship the applicant moved to his mother's premises in Port Macquarie and Ms E continued to live at xx Street. At the time of the index offence, there were no domestic violence incidents or enforceable ADVOs between the applicant and Ms E.[42]
9. In December 2022, Ms E commenced an intimate relationship with a new partner (the new relationship). The applicant disapproved of the new relationship. Ms E's new partner did not live with her but would stay at xx Street with Ms E and the children from time to time. The applicant and Ms E continued to have occasional intimacy after the commencement of the new relationship.[43]
10. As a result of the breakdown in his relationship with Ms E, on 18 April 2023 the applicant attempted to commit suicide by an overdose. As a result, he was admitted to the Port Macquarie Base Hospital and discharged on 26 April 2023.
11. In his sentencing remarks[44] His Honour went on to describe the circumstances in which the index offending occurred. His Honour referred to the fact that on 28 April 2023 the applicant and Ms E had exchanged SMS messages about childcare arrangements that resulted in Ms E turning off her phone. The applicant was with his son James at a local hotel from about 6pm. At about 10.00pm the applicant returned home with James at which time his stepson, ML, arrived. Both James and ML were visiting from Sydney out of concern for the applicant's mental health. The three men played pool and drank beer together at the applicant home. His Honour notes that during the evening the applicant consumed at least ten beers and was intoxicated.[45]
12. At about 1.00am ML notice the applicant leave his home with a knife and was concerned that he was going to Ms E's premises. As a result, he woke James and notified the applicant's daughter Brittany of his concerns. Before leaving his premises, the applicant picked the keys to xx Street, that were keep separately from his own keys together with a fishing knife. James and ML followed the applicant and tied to convince him to return home, which the applicant refused.
13. The applicant arrived at xx Street at about at around 1.20am on 29 April 2023. When the applicant arrived at xx Street, Ms E's car and her new partner's car were both parked in the driveway. The applicant attempted to damage the tyres of both cars with the knife. At that time Brittany and her parent, DY arrived, and ML and James took the knife from the applicant.[46]
14. The applicant then used the keys to let himself into xx Street. He took a knife from the kitchen and entered the bedroom where Ms E and her new partner were sleeping. DY immediately followed the applicant into the bedroom and lunged at him grabbing him from behind and dragging him to the floor. Ms E woke up and moved toward the applicant upon which he lunged at her causing the knife to strike her on the neck and inflict a 3 to 4 centimetres wound. Brittany and James attempted to assist in restraining the applicant during which he threw the kitchen knife in the direction Ms E's partner who lifted his leg up in a defensive motion. As a result, the knife stuck him on the front of his left shin, causing a 4cm wound. DY, ML, James and Brittany then forced the applicant out of the premises and to the car and drove him to Ms E's mother's home.
15. The applicant was arrested approximately 45 minutes later. At the time of his arrest the applicant claimed that he could not remember carrying a knife, but admitted to using a key to enter xx Street and Ms E's bedroom without permission but claimed he could remember injuring Ms E or her partner.
16. In his sentencing remarks the judge stated that the applicant had acknowledged:[47]

'that his behaviour reflected his inability to manage his emotions following the breakdown of the relationship and he accepted responsibility, expressing feelings of remorse for the offences and he did not attribute blame to others. He referred to himself as having had a mental breakdown and that V1 was, in effect, playing mind games with him. He also expressed feelings of shame and regret and acknowledged that his behaviour had the potential to result in significantly worse outcomes by stating, "I could've killed someone."

This was one short period of offending behaviour on the night of 29 April 2023. In my view, the offender clearly set out with the intention of entering the house and at least threatening those he expected to be then present with a knife, that is, the fish filleting knife with the 27cm blade that he took with him. There was no point in taking the key with him unless he intended to use it to access the premises. I note in giving evidence at trial that he said he was just going to talk to them, in which case he needed neither the filleting knife nor the key.

1. The character test is defined under s 501(6) of the Act. It provides that a person does not pass the character test if they have a 'substantial criminal record' as defined in s 501(7) of the Act. Relevantly, s 501(7)(c) of the Act provides that a person has a 'substantial criminal record' if they have been sentenced to a term of imprisonment of 12 months or more or have been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.[49]
2. In this case, the applicant was convicted of the index offending and sentenced to aggregate term of five years imprisonment.[50] By the applicant Statement of Fact, Issues and Contentions applicant conceded that pursuant to ss 501(6)(a) and 501(7)(c) of the Act, he does not pass the character test, on the basis of his 'substantial criminal record', having been sentenced to a term of imprisonment of 12 months or more.[51]
3. Accordingly, the Tribunal finds that the Applicant has a substantial criminal record for the purposes of s 501(6)(a) and s 501(7)(c) of the Act. As a result, the Tribunal finds that the Applicant does not pass the character test and that the requirements of s 501CA(4)(b)(i) are not met. As a result, the Applicant cannot rely on s501CA(4)(1)(a) of the Act for the cancellation of his visa to be revoked.

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.[52] 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.[53]

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. The Minister submits[54] that the applicant's index offending is very serious for the purposes of paragraph 8.1.1 of Direction 110. [55] In circumstances where the index offending involves a violent crime against a women and was an act of family violence against Ms E, the applicant's former domestic partner, the Tribunal accepts that the offence is very serious.[56] The respondent submits that the applicant's conduct falls within the highest category of seriousness and is so serious that even strong countervailing considerations are insufficient to justify not cancelling the applicant's visa.[57]
3. On 26 August 2022, the applicant was convicted of the index offending and sentenced to a term of imprisonment of five years.[58] The imposition of custodial sentences reflects the objective seriousness of the offences involved.[59] To that end, as incarceration is the penalty of last resort in the sentencing hierarchy, the applicant's prison sentence (regardless of its length) is indicative of the seriousness of the offence. Sentences imposed below the maximum penalties available must still be considered in the context of the inherent seriousness of the applicant's offending.[60]
4. On 16 January 2013, the applicant was convicted of contravene prohibition/restriction in AVO (Domestic)[61] in relation to an incident that occurred between the applicant and his former partner, Ms Berniece Digby on 11 September 2012 ('the AVO offence).[62] The applicant and Ms Digby, had been involved in a de facto relationship for about 12 years and have three children together. They were separated in or about 2011. The circumstances of the offence that at about 3am on 11 September 2012, Ms Digby received a text message from the applicant's phone number that stated, "stop ringing my family cos there not your family any more whore u gave that right up when you started fucking that ugly cunt". The applicant made full admissions to having sent Ms Digby the text message.[63]
5. The Respondent submits that despite a 10-year gap, the index offending reflects a significant escalation in the applicant pattern of offending and behaviour for the purposes of Direction 110.[64] In this case the Tribunal notes that the applicant offending has revolved around the breakup of his relationships with Ms Digby and Ms E and his inability to manage his emotions[65] following the breakup of each relationship. The sentencing remarks the Judge accepted that the index offending involved a 'degree of impulsivity'[66] but note his behaviour reflected the applicant inability to manage his emotions following the breakdown of his relationship.[67] In this context the Tribunal accepts, despite a significant delay, the index offending does represent a significant escalation of the applicant's offending.
6. Finally, the cumulative effect of the applicant's offending has resulted in expense to the community including the use of police and court resources.[68] While the Tribunal accepts that the applicant criminal history is not extensive the cumulative effect of his offences including the larceny offence and driving offence has resulted in a cost to the community including the resources of the police and the courts.
7. Therefore, having considered paragraph 8.1.1 of Direction 110, based on applicant's criminal history and the sentencing remarks of the New South Wales District Court in relation to the index offending, 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_[69]_ Mortimer J stated that, to determine an unacceptable risk, one must evaluate what the consequences of a person re-offending as well as the likelihood of that person engaging in that conduct in the future. The courts have held that past actions are legitimate predictors of future behavior.[70] In Murphy v Minister for Home Affairs [2018] FCA1924 Mortimer J, noted:[71]

'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_[72]_ 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.[73] That is, it is a question of degree what will happen in the future based on past events. In Minister for Immigration and Ethnic Affairs v Guo the court held that:[74]

'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....'

1. The Tribunal is required to consider the nature of harm to individuals or the Australian community if the applicant engages in further criminal or other serious conduct.[75] In this case, the Tribunal accepts that if the applicant engaged in the same or similar conduct in the future, he will likely cause serious harm to members of the community including women and children. The Respondent submits that the harm caused by the applicant offending is so serious that any risk he may reoffend is unacceptable and should be avoided by removing him from the community.[76]
2. The applicant's background is that he was born in Leeds in the United Kingdom. The applicant's mother worked in a shop and his father was a motor mechanic before owning and operating a grocery shop together. In his sentencing remarks the Judge noted that the applicant had been sexually abused by a teacher at the age of nine. As a result, his parents arranged for him to change school. The applicant completed his general certificate of education, ordinary level, at 17 years of age. [77]
3. After school the applicant briefly worked in a warehouse and as a typewriter mechanic. He then worked as a tailor for approximately six years before moving to Australia. The applicant parents divorced, and his mother migrated to Australia in 1979 with her new partner. The applicant migrated to Australia with his mother but returned to the United Kingdom after approximately six months. In 1989 the applicant moved to Australia with his first wife. The applicant and his first wife were married for 13 years and have three children.[78]
4. After divorce from his first marriage, he entered a ten-year relationship with Ms Digby with whom he has three children. The applicant relocated to Port Macquarie about 15 years ago where he was in relationship with Ms E for approximately 10 years. He has two minor children with Ms E.
5. As a result of hi three relationships the applicant has a total of eight children. In 2018, the applicant's son from his marriage was shot and killed when visiting a friend's home, causing the applicant and his family significant emotional distress.[79]
6. Prior to the index offending the applicant worked as a nursing assistant at a residential aged care facility for approximately ten years. The applicant evidence was that as a nursing assistant he worked with people a broad range of people with care needs including the elderly and the disabled. His evidence to the Tribunal was that he has completed a course in Assistant Nursing- Certificate 4. The applicant has worked as a volunteer for local soccer and rugby clubs for approximately 30 years. The applicant volunteered his time as coach and medial trainer for junior Soccer and Rugby League teams including the North Coast Bulldogs Rugby League team and St George City Football Club. Mr Jarid Bruen,[80] Director and owner of a business known as Carpentry Kings gave evidence that he became associated with the applicant while he is playing Rugby League, and the applicant was strapper and coach of his team. His evidence was that the applicant had played an important role in his life as a mentor for his personal and professional development. Mr Breun's evidence was that if released into the community he would give the applicant a job within his business to help give him the right environment to see him get back on his feet.
7. In the sentencing remarks the judge referred to medical records by Dr Ho[81] that indicated the applicant had been admitted to a mental health facility pursuant to s 22 of the Mental Health Act on 11 December 2022, because of having threatened to self-harm following an argument Ms E. Ms E's mother had reported to him that she had 'cheated on him'. At that time, he had consumed 25 standard drinks and was assessed as intoxicated. In addition, he had taken an excessive amount of diazepam.
8. In addition, on 18 April 2023, the applicant was admitted to the mental health facility under the Mental Health Act after an attempted overdose of medication, being a combination of oxycodone, sertraline, tapentadol, meloxicam and esomeprazole, along with 10 standard drinks of alcohol. The applicant was reviewed by a psychiatrist on 20 April 2023 and assessed has having a chronic pattern of alcohol misuse as a means of managing stressful situations including relationship breakdown and the death of his son.[82] At a subsequent review on 25 April 2023 the applicant was reported as 'feeling better and more hopeful'. He was assessed with adjustment disorder and alcohol use disorder and advised to continue the antidepressant medication sertraline. He was discharged on 26 April 2023.[83]
9. In the sentencing remarks the Judge[84] referred to Dr Ho's report which noted the applicant had been motivated to avoid reoffending and returning to prison. The applicant had completed courses on addiction and domestic violence which the applicant said had given him helpful information to develop better coping strategies. In relation to the applicant being assessed with an adjustment disorder and an alcohol use disorder the Judge referred to Dr Ho's reported that stated:[85]

"[LQXN] condition of adjustment disorder and alcohol use disorder do not meet criteria to be considered as a mental health impairment defined in s 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act and it appears that he is making some effort by way of engaging in domestic violence and substance addiction courses while in custody."

1. The applicant Pre-release report dated 30 July 2025[86] assessed the applicant as being at a medium-low risk of reoffending. While the report refers to the applicant having displayed a pattern of manipulative coercive behaviours towards intimate partners specifically in the breakdown of relationships,[87] it refers to the fact that applicant has displayed a developing awareness of the factors that have contributed to his offending. He has acknowledged that behaviour has arises from poor emotional regulation compounded by his use of alcohol that has impact on his mental health and decision-making capabilities.[88]
2. The applicant provided a Psychologist Report by Mr Sam Albassit dated 21 September 2025 (the Albassit report)[89] that states the applicant's psychological assessment indicates cognitive functioning, with no evidence of impairment.[90] The Albassit report states that since his incarceration the applicant has engaged in targeted rehabilitation programs, including participation in substance misuse and mental health treatment programs. It states that the applicant has demonstrated a developing insight into the relationship between alcohol use and offending behaviour, acknowledging alcohol as a key risk factor in his past conduct and its effect on his relationships and his mental health.[91] He reports that the applicant's engagement with treatment while in prison has improved the applicants self-reflection and emotional regulation suggesting a reduced likelihood of future alcohol related offending if he remains abstinence and continues with structured support.[92]
3. The applicant claims that he didn't cope due to his heart being broken because of the loss of his children and fiancé.[93] The applicant has completed a number of rehabilitative programs and claims he will not reoffend in the future because of the support from my mother, siblings and children.[94] Consistent with the applicant's evidence to the Tribunal, the Albassit report identified a number of course completed by the applicant while in incarceration. These included the Remand Additive Program, Shine of Kids Program, Healthy Body Healthy Mind course, Positive Lifestyles Program, 12 Step Program, Forklift Course, Certificate II in Warehousing, Supply Chain and Logistics. Mr Albassit states that the applicants emotional functioning is stable, supported by improved coping strategies.
4. The Albassit report states that the applicant risk of reoffending is currently assessed as low contingent upon his continued abstinence from alcohol and continued self-improvement. It notes that he has engaged meaningfully with rehabilitation programs, gained insight into the causes of his offending and presented with no psychiatric illness. Finally, it reports that with abstinence from alcohol, continued psychological support and structured community integration, the risk of the applicant reoffending in the future is low. The report assessed that the applicant possesses no potential danger to the Australian Community. [95]
5. From the Pre-sentence report and the Albassit report the applicant has demonstrated insight into his criminal offending and the factors that cause it and the impact it has on his victims. Having identified alcohol as contributing factor he has engaged with relevant rehabilitation programs to and has displayed a willingness to engage in community-based support services and maintain contact with pro social familiar supports.[96]
6. The Tribunal notes that pursuant to paragraph 8.1.2 of the Direction 110 in considering the need to protect the Australian community from harm, the Tribunal 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. Further, in assessing the risk that may be posed by the applicant, the Tribunal must have regard on a cumulative basis to the nature of the harm to individuals or the Australian community and the likelihood of the applicant engaging in further criminal or other serious conduct.

• 74. In Mendoza and Minister for Immigration and Border Protection[97] Senior Member Puplick observed (in the context of domestic violence) that the Australian community, rightly, professes zero tolerance for violence against women. In this case, the applicant has committed a violent assault on a female and her new partner, in circumstances where the applicant child was present during the offence.

1. Nevertheless, in circumstances where the applicant has demonstrated insight into his offending and has engaged in programs to deal with the cause of his offending, together with his express desire to continue support in the community and maintain contact with his family, particularly his children, the Tribunal accepts that there is a relative low risk of the applicant re offending if he is released into the community.
2. Accordingly, the Tribunal has places moderate weight on this primary consideration in favour of affirming the decision under review.

Family violence committed by the non-citizen.

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.[98]
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 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 Tribunal notes that the index offending involved violent behaviour against his former partner, Ms E, and her new partner. As a person who has had an intimate personal relationship with the applicant, Ms E is a 'member of the person's family.'[99] As such the tribunal finds that the index offending constitutes family violence for the purposes of paragraph 8.2 of Direction 110.
2. Further, on 16 January 2013 the NSW Local Court at Port Macquarie convicted the applicant of Contravene prohibition/ restriction in AVO (domestic) for which he given a fine of $200.00 (the AVO).[100]
3. The Police records[101] indicate that the applicant been involved in other instances of family violence, including:

(i) On 14 April 2014, in breach of the AVO the applicant was abusive and threatening over the telephone towards his ex-partner, Ms Digby over a payment of $10,000.[102] The report notes that the relationship ended because of ongoing domestic violence issues between the applicant and Ms Digby. [103] > > (ii) On 7 September 2012[104], the applicant breached his AVO conditions by threatening and abusing Ms Digby on the telephone. Among other matters the applicant indicated that her house was being watched and that he would arrange to have her bashed.[105] > > (iii) On 5 March 2012, where the applicant breached his AVO conditions by continuing to contact and speak with Ms Digby. Ms Digby explained she had noy fears of being harmed but wanted clarification of the AVO conditions.[106] > > (iv) On 29 November 2011[107] and 5 September 2011[108], the report notes that there had been a history of unreported violence between the applicant and Ms Digby. > > (v) On 4 September 2011, [109]where the applicant broke into his former partner's home taking a television, DVD player and a speaker from the lounge room. In addition, he caused damage by throwing a CCTV equipment in the main bedroom to the floor, rippling a photograph in the lounge room. > > (vi) Finally, the police reports an incident that in May 2008, where the applicant's niece (who was 10 years old at the time) informed mother that the applicant had started to hug her and started to kiss and lick the side of her face (the 2008 allegations). When asked about the incident the applicant denied anything happened between him and his niece. In addition, in her evidence to the Tribunal the applicant's sister, Debra Panteras denied any wrongdoing by the applicant in relation to the incident.

4. The Respondent submits that the index offending ought to be considered very serious in circumstances where:

(a) there has been a significant escalation in the seriousness of the offending.[110]

(b) the applicant has a history of repeated acts of family violence, including displaying a blatant disregard of conditions imposed on him by various AVOs.[111]

1. While the Tribunal accepts that the index offending is an escalation in the seriousness of the applicant's previous offending, its notes that the applicant had not been convicted for an offence for approximately 12 years prior to being convicted of the index offence. In this regard the Tribunal notes that the Judge in his sentencing remarks referred to the index offending 'as one short period of offending behaviour.'[112] As such, given the period in which the applicant did not offend, the Tribunal is of the view that the applicant's offending is not frequent for the purposes of Direction 110.[113]
2. The Tribunal is required to consider any rehabilitation the applicant has undertaken at the time of the decision including the extent to which the applicant has accepted responsibility for their family violence,[114] the extent to which the applicant understands the impact of his behaviour on the abused and any witness of the abuse[115] and any efforts to address fact that contributed to their conduct.[116] In this case the applicant has accepted responsibility for his actions[117] and has demonstrated a strong commitment to rehabilitation having completed a wide range of programs including Alcohol and other Drugs, Anger Management, Cognitive skills and various vocational and educational training courses.[118] Its reported[119] that the applicant is emotionally stable and that he developed improved coping strategies through his program participation.[120] The applicant now demonstrates an insight and judgment into his offending and recognises alcohol and stress as the key triggers to his offending.[121] As referred to above the Albassit report states that in circumstances where he maintains abstinence from Alcohol continued psychological support and structured community integration, the applicant does not pose a potential danger to the Australian community.[122]
3. In this case the Tribunal accepts that the index offending was serious offence and that it was an act of family violence. The Tribunal notes the concerns it has in conferring on non-citizens who engaged in family violence the privilege of remaining in Australia. Nevertheless, considering those matters referred to in paragraph 8.2(3) of Directions 110, the Tribunal accepts the applicant has engaged in rehabilitative activities to the extend he is considered by the Albassit report not to pose a potential danger to the Australian community provided he maintains abstinence from Alcohol, continued psychological support and structured community integration. The applicant expressed a strong desire to maintain such supports in the event he is released into the community.
4. Therefore, having regard to all the above, the Tribunal gives this consideration only minimal weight in favour of affirming the decision under review.

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 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:

(vii) less weight should be given where the non-citizen began offending soon after arriving in Australia; and

(viii) more weight should be given to time the Applicant has spent contributing positively to the Australian community; and

(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.

1. The applicant has resided in Australia for 36 years. His immediate family including his mother, siblings and his eight children, including two minor biological children and two minor grandchildren all continue to live in Australia.[123] The applicant's mother is currently lives in a in a nursing home, it is the applicant evidence that if he is released into the community he will live and care for his mother in her home in Port Macquarie.[124]
2. The applicant has extensive connection to the Australian community having volunteered for approximately 30 years in community sporting clubs.
3. The Tribunal accepts the applicant's evidence that he has been gainfully employment in Australia. The applicant evidence was that he has held a variety of manual jobs. The evidence of his daughter Brittani-leigh was that her father is a hardworking person who has provided for his eight children and supported his local community as a medical trainer for local soccer and rugby clubs. The applicant was employed as Assistant in Nursing in a nursing home from 2013 to 2023.[125]
4. Based on the applicant evidence and the evidence provided by his family members the Tribunal accepts that if the applicant was returned to the United Kingdom, it would have a severe emotional and psychological effect on the members f his family.
5. The Tribunal finds that this primary consideration weighs heavily in favour of revoking the mandatory cancellation.

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 two minor children and two minor grandchildren who would be impacted by a non-revocation decision, namely:[126]

(a) the applicant's child, M E (4 Years Old);

(b) the applicant's child, A E (7 Years Old);

(c) the applicant's grandchild, L E (12 Years Old);

(d) the applicant's grandchild, A Tobin (8 Years Old);

1. The mother of both the applicant's minor children is Ms E, the victim of the index offence.[127] While the applicant had contact with his children every day prior to his index offending, he has not had any contact with them since the index offence. The applicant claims he is presently involved in family law proceedings seeking access to his children.[128] It is unclear whether the applicant be granted any access to his children into the future or if he will be able to play a positive paternal role in their future.[129] Nevertheless, the applicant expressed his strong desire to be involved in their lives. If the applicant was returned to the United Kingdom, he would be denied any opportunity of being involved in his children's lives.
2. The Tribunal notes that the applicant's child, Michel was present at the time of the index offending. However, there was no evidence that he was awake at the time of the incident or was aware that the incident occurred. There is no evidence to suggest that the applicant was aware that the child was in the room at the time of the incident. In any event, there is no allegation that the applicant attempted in any way to harm the child. As such the Tribunal places little weight on the fact that the child was in the room at the time of the index offending.
3. The mother of the applicant's grandchildren is his daughter Brittani-Leigh. E. The evidence of both the applicant and Brittani- Leigh was that the applicant's grandchildren have regular contact with him by telephone and that they share a close bond with him. Ms E's evidence was that the applicant's grandchildren regularly ask when he is going to come home and see them.[130] Nevertheless, it was accepted by the applicant that he would not fill a parenting role for his grandchildren, but in circumstances where Ms E's is a single parent, her evidence was that the applicant "the only father figure my children have."[131]
4. The Respondent submits that any role the applicant is to play in his children's or grandchildren's lives must be viewed in light of the 2008 allegations. The Tribunal notes that no charges have been made in relation to the 2008 allegations. The evidence of Ms Debra Panera, the applicant sister, the 2008 allegation are false and were made by her ex-husband without her knowledge or consent. Therefore, given the passage of time, the fact no charges were laid together with the evidence of Ms Panera, the Tribunal does not accept the Respondent's submission that any positive role the applicant may have in his children's or grandchildren's lives must be viewed in light of the 2008 allegations.
5. Therefore, having regard to the above, the Tribunal finds that this primary consideration weighs greatly in favour of revoking the mandatory cancellation. As such, the Tribunal gives this consideration great weight in favour of revocation.

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 [2019] FCAF 185, 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.[132] Nevertheless, it remains an issue for the Tribunal as to the weight that should be given to this consideration in making its decision.[133] In doing so the Tribunal is required to consider the specific circumstance of the Applicant's case.[134]
2. The Respondent submits that this primary consideration weighs heavily in favour of affirming the decision under review in circumstances where the index offending is an act of family violence and violence[135] against a women.[136] Its submitted that the expectations of the Australian community apply regardless of whether the applicant poses a measurable risk of causing physical harm to the Australian community.[137]
3. 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 Pre-release report[138] that assessed the applicant as medium low risk of re offending. In addition, the Tribunal has placed great weight on the Albassit report that states the applicant does not to pose a potential danger to the Australian community provided he maintains abstinence from Alcohol, continued psychological support and structured community integration. The Tribunal notes that applicant has gone to great effort while in custody to ensure that he has engaged in the appropriate courses to deal with the symptoms of his offending. In such circumstances the Tribunal has placed great weight on the evidence of the applicant children, James. E and Brittani- Leigh. E that they will support the applicant in maintain such supports in the event he is released into the community.
4. In addition, the Tribunal has considered the fact that all the applicant's family live in Australia including his mother and siblings. The applicant no longer has any history or connection to the United Kingdom. The applicant has contributed to the Australia community through as a volunteer to various sporting clubs and has been gainfully employed since his arrival in Australia. He has expressed his remorse for his actions and has had the support of his immediate and extended family.
5. 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.[139] The Tribunal notes that community expectations apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community.[140]
6. 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 Australian 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.[141]

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. The applicant submitted that the Tribunal as a Government Body owed the applicant a duty of care to not have his visa cancelled and removed to the United Kingdom. The Tribunal was not clear on the point of the applicant submission in this regard but in any event, it did not raise any non-refoulement obligations for the purpose of paragraph 9.1.2 of Direction 110.
2. As such this consideration is not relevant to the decision of the Tribunal. The Tribunal gives this consideration no weight.[142]

1. Paragraph 9.2 of Direction 110 requires the Tribunal to consider any impediments that the Applicant may face if removed from Australia to United Kingdom 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 62 years old. He suffers from mental health issues which could be treated if he was removed to United Kingdom. The applicant would not experience any substantial language or cultural barrier of he was removed to United Kingdom, and he would be entitled to medial and economic support on the same basis as citizen of the United Kingdom. Nevertheless, the Tribunal accepts that the applicant would experience a significant period of adjustment in the event he was returned to United Kingdom including the fact that he would be isolated for his immediate family, which would cause him considerable stress and anxiety.
3. 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 in the sense it was 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 grandchildren are both young and would benefit from having their grandfather in the community. Finally, the applicant has contributed to the community through his involvement in the sporting clubs together with his daughters and has been gainfully employed for while in Australia. 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 (120) paragraphs are a true copy of the reasons for the decision herein of General Member J Pennell.

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

[11] 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).

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

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

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

[54] Respondents Statement of Facts, Issues and Contentions; HB261

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

[56] Paragraphs 4 and 8.1.1(a) of Direction 110.

[57] HB261; paragraph 5.2(7) of Direction

[59] Paragraph 8.1.1(1)(c) of Direction 110; Pavey and Minister for Home Affairs [2019] AATA 4198 at [44] per Senior Member Tavoularis.

1. [60] Dayananda v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1050 at [39].

[64] Paragraph 8.1.1(1)(e) of Direction 110

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

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

[70] 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].

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

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

[73] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, [575].

[74] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, [574] - [575].

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

[97] Mendoza and Minister for Immigration and Border Protection [2018] AATA 686, [48].

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

[101] Paragraph 8.2(2)(b) of Direction 110

[110] Paragraph 8.2(3)(a)of Direction 110

[111] Paragraph 8.2(3)(b) of Direction 110

[113] Paragraph 8(3)(a) of Direction 110

[114] Paragraph 8.2(3)(c)(i) of Direction 110

[115] Paragraph 8.2(3)(c)(ii) of Direction 110

[116] Paragraph 8.2(3)(c)(iii) of Direction 110

[129] paragraph 8.4(4)(a)-(b) of Direction 110

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

[134] Kelly [2022] FCA 396, [98]-[109] (Beach J).

[135] paragraph 8.5(2)(a) of Direction 110

[136] paragraph 8.5(2)(c) of Direction 110

[137] paragraph 8.5(3) of Direction 110

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

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

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

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