1. The instant hearing proceeded before me on 8 and 9 October 2024 and 24 January 2025. The hearing received oral and written evidence from (1) the Applicant; (2) Ms NS who is the Applicant's former partner and mother of his daughter; (3) the Applicant's previous employer and now prospective employer, Mr Chris Campbell; and (4) the clinical psychologist, Mr Matt Visser. At the commencement of the hearing, I sought the parties' agreement to a draft Exhibit List in an endeavour to ensure there was unanimity between the parties and the Tribunal about the totality of the material before the Tribunal. During the course of the hearing, additional exhibits added to the initial list. The finalised and unanimously agreed Exhibit List is attached these Reasons and marked Annexure A.

1. Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this provides that:

4 The Minister may revoke the original decision if:

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

(b) the Minister is satisfied:

(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. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. There remain two issues presently before the Tribunal. They are:

a) whether the Applicant passes the character test; and if not > > b) whether there is another reason why the decision to cancel the Applicant's Visa should be revoked.

1. But for the impact of Pearson, the Applicant would have been found to not pass the character test as a matter of law.[12] It is clear from his criminal history that in mid-December 2022, he received a sentence of imprisonment of 12 months or more,[13] and thus could now comfortably be found to have a "substantial criminal record" which ordinarily compels this Tribunal to find he does not pass the character test.[14] To my mind, this should be the end of matter for two reasons: (1) Parliament legislatively[15] remediated Pearson which, for the purposes of the character test, surely returns the parties to the position they were in as at 22 December 2022 when the visa was mandatorily cancelled; and (2) because of what the Federal Court said in BJT21 v Minister for Home Affairs (No 2) [2022] FCA 24 ("BJT 21"):

The language and context of s 501(3A) does not indicate that a decision by the Minister under s 501(3A) may be retrospectively vitiated by subsequent events. The Minister's obligation is to cancel a visa upon satisfaction that the holder: does not pass the character test because of s 501(6)(a) taken with s 501(7)(c) (substantial criminal record), or s 501(6)(e) (sexually based offences involving a child); and is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a relevant law. When that state of satisfaction is lawfully reached, the Minister's obligation to cancel the visa is absolute.[16]

2. Based on the above analysis, it is of no moment that an appeal court - some three months after the mandatory cancellation decision pursuant to s501(3A) of the Act - reduced the head custodial aggregate term from 12 months to nine. Consequent upon the legislative remediation of Pearson, the lawful basis of the mandatory cancellation was re-enlivened such that the Applicant should now be found to not pass the character test. This is my first finding about the character test.
3. However, and for reasons not entirely clear to me, the Respondent's Department forwarded the abovementioned letter dated 27 July 2023[17] to the Applicant. In this letter, the Applicant was told: "[In] March 2023 after an appeal against......the severity of the sentence, the District Court of New South Wales varied the term of imprisonment to an aggregate term of nine months' imprisonment. Despite your visa cancellation being lawful......the [Respondent's] Department....is aware that if assessed under s501(7)(c) [of the Act] after [specific date redacted] March 2023 you would no longer be liable for visa cancellation under s501(3A) [of the Act]."[18] [My emphasis]. The letter went on to tell the Applicant that "The Department holds information about your criminal history, which indicates that you do not pass the character test by virtue of s501(6)(d)(ii) of the Act" and that "You are invited to comment on the further information."[19]
4. This letter does not contain any reference to any fact, matter or thing vitiating the Respondent Minister's lawfully reached state of satisfaction to mandatorily cancel the visa on 22 December 2022. On the contrary, the letter clearly tells the Applicant "Despite your visa cancellation being lawful.....". The Department's being ".......aware that if assessed under s501(7)(c) after [specific date redacted] March 2023 you would no longer be liable for visa cancellation under s501(3A)" cannot be a factor now capable of vitiating or displacing the Respondent Minister's lawfully reached state of satisfaction to mandatorily cancel the visa on 22 December 2022.
5. For this reason, I am hard-pressed to understand why it is necessary to embark on the exercise of assessing whether or not the Applicant passes the character test pursuant to s501(6)(d)(ii) of the Act. I have found the Applicant does not pass the character test because of s501(6)(a) of the Act taken with s501(7)(c) of the Act resulting in the Applicant having a "substantial criminal record." If this finding is wrong and out of an abundance of caution, I will proceed to determine whether he passes the character test pursuant to s501(6)(d)(ii) of the Act. This section relevantly provides that "......a person does not pass the character test if:......... (d) in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would:........(ii) harass, molest, intimidate or stalk another person in Australia;....."
6. In its written closing submissions,[20] the Respondent provides methodology for assessing whether a non-citizen passes the character test pursuant to s 501(6)(d)(ii) which, to my mind, has meritorious traction for present purposes. There are three initial "threshold" questions to be addressed. First, what is the appropriate level of risk? The Respondent contends that for the purpose of s (501)(6)(d)(ii), the risk should be a real and tangible one. This level of risk is to be differentiated from a significant risk because Parliament intended it to be so. When this provision was amended in 2014, Parliament removed the word "significant" from it. The explanatory memorandum to that amending legislation explains the omission in these terms: "The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk."
7. It is therefore safe to find that while a minimal or negligible level of risk would not engage the auspices of s 501(6)(d)(ii), there is no requirement to identify a significant risk. Rather, the safe middle ground for the purposes of applying this provision lies in identification of a real and tangible risk.
8. Second, what type of conduct falls for consideration pursuant to this provision? Language of the provision refers to specific categories of conduct in the form of harassment, molestation, intimidation or stalking of another person in Australia. Section 501(11) mandates that "For the purposes of the character test, conduct may amount to harassment or molestation of a person even though (a) it does not involve violence, or threatened violence, to the person; or (b) it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person." Thus, the categories of conduct contemplated by s 501(6)(d)(ii) are not exclusively limited to manifestation of the conduct on a "hands on" basis. It can include conduct such as a perpetrator punching a hole in a wall or intentionally breaking an item of property of another person.
9. The Respondent makes the further point that the presence of "or" in the provision demonstrates that assessment of risk does not require all four categories of the conduct to be present. The word "or" confirms that the presence of only one of the four categories in the conduct being assessed will suffice. I am therefore satisfied that the Applicant's conduct now before the Tribunal involving, as it does, clearly violent conduct towards female victims in a domestic context comfortably falls within one of the four categories referred to in the subject provision.
10. Third, with reference to the conduct under review, is there any temporally fixed period during which future risk may be found to exist? The short answer is "no". This is so because of what the Federal Court said in Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1046:[21]

[42] Section 501(6) of the Act forms part of a statutory scheme within the Act which advances the object of regulating the presence in Australia of non-citizens, in the national interest, and the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by the Act: ss 4(1) and 4(4) of the Act.

[43] The majority of the High Court in Falzon v Minister for Immigration and Border Protection [2018] HCA 2; (2018) 262 CLR 333 (Falzon), comprising Kiefel CJ, Bell, Keane and Edelman JJ accepted that the purpose of s 501 of the Act is to protect the Australian community. In Falzon at [89], Gageler and Gordon JJ also observed that, "the purpose of cancelling a visa pursuant to s 501(3A) is to exclude from the Australian community a class of persons who, in the view of Parliament, should not be permitted to remain in Australia": see also Ratu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 141; (2021) 286 FCR 89 per Farrell, Rangiah and Anderson JJ at [56]. I accept the Minister's submission that the context and purpose of the Act, and s 501 in particular, do not limit the refusal power to consideration of risk of criminal offending in Australia "during the period of the visa". The context and purpose of the Act support a broader construction, that the risk being assessed is the risk of a person engaging in criminal conduct in Australia at any time. [22]

[Bold is my addition; the underlined bold appears as italicised text in the original]

1. Following determination of the threshold issues, the next task is to review the evidence for the purposes of arriving at an assessment of the relevant risk. The conduct of the Applicant falling for assessment pursuant to s 501(6)(d)(ii) has, as its exclusive domain, violent attacks upon at least three female partners in a private domestic context. Applied to the present assessment exercise, the question becomes: is there a real and tangible risk of the Applicant harassing, molesting, intimidating or stalking another female in Australia with whom he has had or may have an intimate domestic relationship at any time? The instant hearing enjoyed the benefit of expert psychological evidence from the clinical psychologist, Mr Matt Visser. His report appears in the material and is dated 29 December 2024[23]. In his written report, Mr Visser made these observations:

The main risk factor is that he has assaulted all three of his significant romantic partners in a pattern that has shown escalation. The main causal factors for his offences appear to be his use of drugs and alcohol and his mental illness. While he did not address these until placed into a significant period of incarceration, he has since taken direct and consistent steps to address these issues, maintaining sobriety, attending courses, and engaging in regular therapy with a clinical psychologist. Were he to maintain these behaviours outside of a detention setting his risk would reduce, particularly if he were able to directly address his trauma. If his mental health issues were addressed using an evidence based therapy for trauma, his risk would reduce.[24]

1. Further in his report, Mr Visser noted that "In [the Applicant's] case, his offence history suggests a pattern of domestic violence across three separate partners, with escalation of the severity of those offences as time progressed. The primary causal factors of his offending appear to relate to his mental illness and drug and alcohol abuse."[25] In terms of actual risk, Mr Visser opined thus: "The risk assessment conducted.... suggested him to be of low to moderate risk of any form of recidivism. For domestic violence, his risk of recidivism is moderate, which would reduce if he were to engage in specific therapy to address his trauma."[26]
2. Mr Visser also provided oral evidence to the instant hearing. The following exchange transpired between Mr Visser and the Respondent's representative during cross-examination:

"MR BURKE: Mr Visser, in relation to your risk assessments of [the Applicant], in particular the risk assessment dealing with domestic violence, that's been identified as a moderate risk, and just to clarify a couple of things. Firstly, that moderate risk indicates a moderate risk of physical violence in a future domestic relationship. Is that right?

MR BURKE: Would it also be fair to say, Mr Visser, that the moderate risk of domestic violence incorporates a risk of [the Applicant] using threats and intimidation in a future domestic relationship?

MR BURKE: This perhaps is a bit of a semantic question, but by 'moderate risk', is that analogous to saying [the Applicant] is in that medium risk range?

MR VISSER: Medium risk could be a different way of putting it. Yes."[27]

1. During cross-examination, Mr Visser was taken to a relevant police document (with which he seems to have been briefed[28]) recording the Applicant saying the following words to one of his victims: "Wait until I get to you and see you. I'm going to kill you." Mr Visser was told that in his evidence to the Tribunal, the Applicant did not cavil with having said these words. Mr Visser was then taken to the scores he recorded in the performance of his SARA[29] upon the Applicant which is a 24-item structured guide for spousal risk evaluation. Item 13 of that guide looks for "Past use of weapons and/or credible threats of death."[30] In the results column, Mr Visser had not made any notation of, or reference to, the Applicant's credible threat of death made to one of his victims.
2. The resulting exchange transpired between Mr Visser and his cross-examiner:

"MR BURKE: Under cross-examination yesterday, [the Applicant] confirmed, and we accepted, that that happened. In your opinion, Mr Visser, is that a credible threat of death for the purpose of item 13?

MR VISSER: Yes, it is. My apologies to the tribunal for missing that.

MR BURKE: Not a problem, Mr Visser. There's a significant amount of material in this case. In relation to that, I understand based on your response that would change the presence of that factor to, yes, that it exists. Is that right?

MR BURKE: Are you able to opine now what impact, if any, that would have on the risk assessment?

MR VISSER: Look, it would increase it. I wouldn't say to a high risk overall. I mean, to me, the credible threats of death probably more relate to, I guess, intensity of risk rather than likelihood, if that makes sense as a difference. So the credible threats of death don't necessarily indicate that it's more likely to occur, but just that, if it does, that the potential consequences of that are higher."[31]

1. Taken in its totality, it would be unsafe to suggest or find that Mr Visser's evidence points to a minimal, trivial or otherwise low risk of the Applicant's commission of further domestic violence offences. Mr Visser was clear that the Applicant's recidivist risk of domestically violent offending against a domestic partner is "moderate" which, in his oral evidence, he said was analogous to the "medium risk range". To my mind, the evidence points to a series of factors which speak to precisely this type of recidivist risk finding for the purposes of s 501(6)(d)(ii). I will address each of the factors in turn.
2. The overall pattern of the Applicant's domestic violence offending: this pattern was identified by Mr Visser in his oral evidence. Mr Visser noted that "....in terms of risk....past offending is usually the best predictor of future offending. That he's had three significant relationships and all of them have involved domestic violence leading to convictions, from my understanding, is, yes, suggestive that the risk of him....doing so in a future relationship is higher than....if it was a single incident or if there was....not a more consistent pattern involved....[32].
3. Expressions of remorse: the Applicant has previously made expressions of remorse but nevertheless returned to a pattern of committing acts and offences of domestic violence. I agree with the submission of the Respondent: the past pattern of expressing remorse and a commitment to change his ways has been repeatedly followed by further offending and, accordingly, this aspect of the Applicant's evidence must be approached with caution.
4. The appeal court's reduction of the head sentence from 12 months to nine months: an argument that could be put on a favourable basis about the Applicant's current recidivist risk is that while the first court imposed a head custodial term of 12 months, the appeal court reduced that head term to 10 months and thus beneath the 12 month threshold appearing in ss501(6)(a) and 501(7)(c) of the Act. It could be argued that Parliament does not view the Applicant's offending at the same level of seriousness than would be the case if the 12 month first instance sentence had not been disturbed on appeal. This argument does not (and should not) have traction because of the legislative remediation[33] of Pearson. As I have found, this means there is no fact, matter or thing vitiating the Respondent Minister's lawfully reached state of satisfaction to mandatorily cancel the visa on 22 December 2022.
5. The making of certain Federal Circuit and Family Court ("FC&FC") Orders by consent on 29 November 2021[34]: my initial apprehension, tentatively expressed at the hearing, was that if the FC&FC was prepared to make these orders which, inter alia, facilitated people shared parental responsibility for a child of the Applicant and Ms NS, those orders would contemplate at least some measure of contact and communication between him and her and that, accordingly, the FC&FC must not have thought he represented any kind of domestic violence risk towards her. I am now of the view that this initial apprehension was misplaced. There is nothing in the material to suggest the FC&FC made any assessment of the Applicant's recidivist risk of committing domestically violent conduct against her when making these consent orders. Specifically, it is not clear whether the FC&FC had before it, any evidence of the Applicant's previous domestically violent conduct towards either Ms NS or any other domestic partner. The further point is that after these consent orders were made on 29 November 2021, the Applicant was again involved in domestically violent conduct towards another domestic partner on 30 July 2022[35] and 30 August 2022[36].
6. The prospect of accommodation and employment with Mr CC: when the Applicant was last in the community, he had been engaged in remunerative employment. But even so, even while gainfully employed, he proceeded to demonstrate and commit conduct of a domestically violent nature against domestic partners. Employment does not seem to ameliorate his recidivist risk for domestically violent conduct. Mr CC talks about offering the Applicant somewhere to reside, at least in the short to medium term. He had accommodation in the past, but it did not prevent him from committing domestically violent conduct.
7. Rehabilitation: it is true the Applicant has engaged in some measure of rehabilitation. However, the only safe and logical finding is that he should now be found to be only at the start or the early phases of the rehabilitative process. The criticality of him maintaining a pattern of engagement with rehabilitation was not lost on Mr Visser who clearly predicated any lowering of the Applicant's current recidivist risk against the Applicant becoming and remaining engaged in a sustained pattern of rehabilitation. Mr Visser acknowledges the Applicant did not address the causative factors behind his offending "....until placed into a period of incarceration...." Mr Visser further opined that "Were he to maintain these [rehabilitative] behaviours outside of a detention setting his risk would reduce...." The reality has been that though the Applicant has previously made commitments to participating in rehabilitation, he made similar claims previously and before the mandatory cancellation of his visa. Indeed, he made such pledges to a court in 2020 and yet proceeded to subsequently commit further very serious acts of family violence.
8. The claimed absence of domestically violent conduct against Ms MH: the Applicant contends he should be found to represent a low recidivist risk because of an absence of family violence conduct against his current domestic partner, namely, Ms MH. They met in May 2022 and he says they have "....been in a relationship....for over a year now."[37] This contention should received with significant caution and, more probably, rejected. This is because while one the one hand, there does not seem to be any complaint by Ms MH about any domestically violent (or derivative) conduct by the Applicant towards her, it should be noted that, on the other hand, she resides in New Zealand and for the totality of their purported relationship, he has been in immigration detention.
9. Based on the above factors disclosed by the evidence, I am comfortably satisfied there is a real and tangible risk that if allowed to remain in Australia, the Applicant would harass, molest, intimidate, or stalk another female domestic partner. Accordingly, I will find that the Applicant fails to pass the character test pursuant to s 501(6)(d)(ii) of the Act. This is my second finding about the character test.

Is there another reason why the Decision to cancel the Applicant's visa should be revoked?

1. In considering whether there is another reason to revoke the mandatory cancellation of the Applicant's Visa,[38] the Tribunal is bound by section 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction 110 has application.[39]
2. For the purposes of deciding whether or not to revoke the mandatory cancellation of a

non-citizen's visa, the Direction contains several principles that must inform a decision maker's application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community. > > (2) The safety of the Australian Community is the highest priority of the Australian Government. > > (3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia. > > (4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community. > > (5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. > > (6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. > > (7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. > > (8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measurable risk of causing physical harm to the Australian community.

3. Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:

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

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

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

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

(5) expectations of the Australian community.

1. Paragraph 9 of the Direction sets out three Other Considerations which must be taken into account. These considerations are:

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

2. I move now to a consideration of each of those primary and other considerations as may be relevant to the instant facts.

PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

1. In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Direction further provides that the Australian Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
2. In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:

(i) the nature and seriousness of the non-citizen's conduct to date; and > > (ii) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

The nature and seriousness of the Applicant's conduct to date

1. When assessing the nature and seriousness of a non-citizen's criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:

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

(i) violent and/or sexual crimes;

(ii) crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;

(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

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

(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));

(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

(c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

(d) the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness;

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

(f) the cumulative effect of repeated offending;

(g) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

(h) whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).

(i) where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

1. The Applicant's offending may be summarised as follows:
   • Number[40] of offences: 8
   • Number of sentencing episodes: 3
   • Types of offences:
     • Destroy or damage property (DV);
     • Common assault (DV) - T2 (x3);
     • Assault occasioning actual bodily harm (DV) - T2 (x2);
     • Contravene prohibition/restriction in AVO (Domestic);
     • Enter premises of any person without lawful excuse.
   • Nature of sentences imposed:
     • Bond for 12 months (x2);
     • Community correction order for 2 years;
     • Conviction with no other penalty;
     • Imprisonment for 12 months with a non-parole period of four months (aggregated sentence) (x4).
2. There is a helpful summary of the Applicant's offending appearing in the Respondent's Statement of Facts, Issues and contentions ("SFIC")[41]. This summary refers to a lamentable pattern of appallingly violent conduct perpetrated by the Applicant against three domestic partners with whom he was in a relationship at the time the offences were committed. The relevant dates on which the domestically violent were committed comprised 17 July 2017, 30 September 2020, 30 July 2022 and 30 August 2022. It suffices to say the Applicant's conduct towards these domestic partners involved:
   • verbal abuse including openly-made threats to kill;
   • the administration of significant levels of physical abuse resulting in injuries to victims, including:
     • striking a victim with his hand and kicking her in the region of her buttocks and right calf area causing pain and bruising;
     • forcing a victim to put a towel in her mouth to subdue her cries;
     • grabbing a victim around the neck area at the front of her clothes when she attempted to leave;
     • pushing a victim in the chest causing her to fall backwards into a bathtub and bucket of laundry;
     • punching a victim in the stomach multiple times;
     • slapping a victim in the region of her face/head a number of times giving her a black eye;
     • grabbing hold of a victim's left shoulder and pulling her backwards causing her to rotate to face him;
     • raising his right hand towards a victim as if about to slap her;
     • forcefully slapping a victim to the left side of her face causing her pain and also causing her to fall to the floor; and
     • holding the head of a victim towards the floor to prevent her from screaming.
   • the conduct being perpetrated in the presence of at least one child then aged seven years; and
   • involved at least one victim very seriously fearing for her safety which compelled her to ring the triple-zero emergency number requesting police assistance.

Application of factors appearing at paragraph 8.1.1(1) of the Direction.

1. The Direction contains nine non-- exhaustive factors referrable to the assessment of the nature and level of seriousness of a non - citizen's criminal offending in Australia. I will, in turn, address each of them insofar as they may engage the evidence before the Tribunal.

1. The chapeau to this specific paragraph contains the descriptor of "very serious" to three specific categories of unlawful conduct. The facts, circumstances and outcomes of this Applicant's domestically violent conduct perpetrated on three separate domestic partners have been adequately summarised in the Respondent's SFIC and with even greater particularity in the summonsed Police documents. There can be no cavilling with the proposition (and finding) that this Applicant's conduct falls squarely within the auspices of this paragraph 8.1.1(1)(a) and should now be found to be "very serious."My finding will be that this Applicant's history of offending in Australia should now be viewed as "very serious".

1. The Applicant's unlawful conduct does not appear to engage the auspices of this paragraph. He has not caused a person to enter into a forced marriage and there is no evidence he has been a party to such a marriage himself.[42] He has not committed any offence against a vulnerable member of the community or any government official going about their business.[43] He has not committed a crime while in immigration detention.[44] I have found that he has committed conduct (pursuant to s501(6)(d)(ii) of the Act) comprising "harass, molest, intimidate or stalk another person in Australia" which, in turn, led me to find he does not pass the character test on this basis.[45] I will therefore find, consistent with the "serious" descriptor appearing at the chapeau to this paragraph 8.1.1(1)(b), that the totality of this Applicant's unlawful conduct in this country is, at the very least, serious, more likely very serious.

1. This paragraph compels an examination of the sentences imposed by Courts on the Applicant for his offending. There is an important exception contained in the language of this paragraph. Specifically, this exception precludes me from taking into account (1) crimes of a violent and/or sexual nature against women or children; (2) acts of family violence regardless of whether or not any of that conduct was convicted and/or whether a sentence was imposed for it; and (3) any crime or crimes involving the Applicant causing another person to enter into a forced marriage or of him entering into such a marriage himself.
2. As best as I understood the Applicant's offending history, of the eight entries in that history only two of them could now possibly be said not to fall into any of the three above-mentioned excluded categories. They would be (1) his conviction on 9 August 2017 for "Destroy or damage property (DV)" and (2) "Enter prescribed premises of any person without lawful excuse." But even these two offences, while not involving physical or other abuse perpetrated by the Applicant on a domestic victim, they were nevertheless committed as part of the factual transaction culminating in his commission of acts of family violence. The safest course is to put this paragraph 8.1.1(1)(c_)_ to one side and to render it neutral for present purposes.

1. As best as I understood the material, it does not contain any documentary or other evidence dealing with the impact of the Applicant's offending on any victim or member of their family. The safest course is to put this paragraph to one side and render it neutral for present purposes.

1. This Applicant has a criminal history that, in sentencing terms, runs for about five and a half years. He has convictions for eight offences (including the abovementioned called-up offence) across that period. This is a rate of offending at well over one offence per year and approaching two offences per year. I am therefore satisfied that for the period of this criminal history, the Applicant's offending has been frequent. The next question is whether his offending pattern betrays any trend of increasing seriousness. To my mind, such an enquiry is not required because the Applicant's domestically violent conduct has been very serious from its outset.
2. The factual circumstances of his initially-committed domestically violent conduct involving him making threats to kill the victim and physically striking her with his hand and kicking her in the buttocks and right calf area causing pain and bruising. It also saw him forcing her to put a towel in her mouth to subdue her cries. Comparatively, his finally episode of domestically violent conduct saw him again making a threat to kill the victim, slapping her to the left side of her face causing her pain and also causing her to fall to the floor. He then held her head towards the floor to prevent her from screaming.
3. It is clear that the Applicant's domestically violent conduct has been very serious from its outset. When conjoined to my finding about its frequency, I am satisfied that this paragraph 8.1.1(1)(e) strongly militates in favour of a finding that the totality of his offending conduct in this country has been very serious. I so find.

1. There are a number of palpable cumulative effects arising from the Applicant's repeated offending. First, it is surely beyond argument that his apalling conduct towards victims of his domestic violence has traumatised them both physically and emotionally. The Applicant cannot now be heard to suggest anything to the contrary. Second, his first three domestically violent offences were punished by non-custodial terms in the form of two good behaviour bonds with respective operative periods of 12 months and a community correction order also with an operative period of 12 months. He experienced no deterrent effect from these non-custodial punishments and proceeded to commit five further offences (including the called-up offence) that were punished by a head custodial term of 12 months which was later reduced to nine months on appeal.
2. Third, the Applicant's conduct across the 5 and a half years of its commission has required the intervention and deployment of an undue level of the community's policing, judicial sentencing, custodial and healthcare resources. Fourth, and perhaps of greatest concern, is the reality that this Applicant has not developed any modicum of respect for female domestic partners with whom he has been in a relationship with. He cannot be heard to say that the alcohol or the drugs or some asserted past trauma so disoriented his moral compass such as to cause him to so viciously attack three domestic victims. There is no excuse for the awful family violence he has committed and it betrays an utter lack of respect for women who have had the misfortune of personally associating with him.

1. As best as I understood the material, there is no reference to any document or other evidence referring to the Applicant's provision of false or misleading information to the Respondent's Department, including by not disclosing prior criminal offending. This paragraph 8.1.1(1)(g) can be safely put to one side and rendered neutral for present purposes.

1. There is nothing in the material to suggest the Applicant has re-offended since being formerly warned or since otherwise being made aware, in writing, about the consequences of further offending upon his visa status to remain in this country. It should be noted that the absence of any such warning should not be considered to be in the Applicant's favour. The safest course is to put this paragraph 8.1.1(1)(h) to one side and render it neutral for present purposes.

1. Although the Applicant remained in Nigeria until his early to mid-20's, there is no evidence that he committed any offence or perpetrated any conduct in Nigeria (or any other country) which would be classified as an offence in Australia. The safest course is to put this paragraph 8.1.1(1)(i) to one side and render it neutral for present purposes.

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

1. I have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction to the evidence. The relevant paragraphs in paragraph 8.1.1(1) informing my own assessment of the Applicant's offending now safely and cumulatively lead me to the conclusion (and finding) that the totality of his unlawful conduct in this country can be readily characterised as 'very serious'. I so find.

The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

1. There is no requirement to recount the factual nature and circumstances of the Applicant's domestically violent conduct. It has undoubtedly traumatised its three victims in both an emotional and physical way. If re-committed, such conduct would inevitably result in very significant physical and psychological harm to members of the Australian community. In addition, the community's policing, judicial sentencing, custodial and healthcare resources would again be unduly consumed.
2. I am this satisfied that re-commission of the Applicant's very serious unlawful conduct would result in harm to both individual victims and our community more generally. I variously characterise this harm as psychological, physical (including potentially catastrophic) as well as materially quantifiable harm in terms of its undue consumption of the community's resources.

The likelihood of the non-citizen engaging in further criminal or other serious conduct

1. In his Personal Circumstances Form ("PCF") the Applicant says "At the moment I believe I am at low-nil risk of offending again. I am taking steps to deal with the personal matters that caused me to offend in the first place....I have distanced myself from individuals who have had a negative influence on me....I do not have any intention of entering a new romantic relationship until I have reconciled with the issues that caused me to behave in the manner that I did...."[46] In his more recent statutory declaration, he refers to six rehabilitative courses he completed while in prison.[47] Those courses variously relate to anger management, self-regulation and control, overcoming a propensity to abuse illicit drugs and alcohol, domestic violence and recovery. Most recently, he says "....I am also participating in rehabilitation programs such as Smart Recovery and Positive Lifestyle....The program....Involves lessons on self-awareness, anger management and how to manage depression, loneliness, stress and grief. We are taught how to assess the above and manage them."[48]
2. During his evidence-in-chief, he was asked to talk about the positive impacts he had experienced from whatever rehabilitative courses he had undertaken. The following transpired between the Applicant and his representative:

MR BERG: I have the same question. What did that tell you about yourself? APPLICANT: The Circuit Breaker?

APPLICANT: It tells me a lot about myself on how to have a timeout whenever we are having - like, whenever we are stressed. You know, whenever we are stressed, like you know, how we can have a timeout. There are a few things that we can implement whenever we are stressing and how we can communicate in a very healthier way. It doesn't have to result in violence. It doesn't have to be abusive (indistinct). It does have to be coercive control of our partner or to anyone, to our kids (indistinct).

MR BERG: Okay. Did that program speak to things that are in you?

APPLICANT: Speaks a lot about me. It speaks a lot about me on how to, like, my communication skills, whenever I'm frustrated, whenever, like, it speaks about, like you know, addictions. And it speaks about, like you know, how we can, like you know, open my hands and praying as well to - because it's from church as well. Then it speaks about a lot.

MR BERG: Sorry, I'm going to change my question a bit because you did mention the SMART Recovery program. So you said that went for 15 weeks?

MR BERG: Can you tell the tribunal about what that program told you about yourself, about that program and you?

APPLICANT: I won't lie to you. The program helped me a lot, a lot. And I just want to appreciate the (indistinct), the possibility (indistinct) from Perth. Like because it went for 15 weeks I know about boundaries. Before, I didn't know about boundaries. I know about being assessive [sic]. I know about how we can communicate in a healthier way. I know about addiction. Addiction could be anything. You know, we can be addicted to chocolate, we can be addicted to drink, we can be addicted to anything in life. It's about, like you know, it teaches me about co-dependency. Teaches me about co-dependency, and like, you know, there are a few things like, a few courses that I (indistinct) they are a few topics that I pick a lot from it. I've been able to - it's made me discover myself, you know, how I've been able to communicate in a very healthier way.

1. During cross-examination, the Applicant spoke of wanting to work with victims of domestic violence in some type of counselling role if now returned to the community. He was asked why he thought he would be a good candidate for such a role and he responded with "The reason why is because...I've been convicted of so many offences of domestic violence and I've learnt my lesson and I want to help other people, like, to let them know that domestic violence is never acceptable in the community or anywhere. I want to share my journey, I want to help women, I want to help kids."[49]

1. Ms Georjia Newhouse is the Pathways Coordinator for the Wayside Chapel. She has written a report which is dated 20 February 2023 and which appears in the material.[50] In this report she says "I have been working alongside [the Applicant] in the Pathways Program for the past few months."[51] She adds that the Applicant "....has demonstrated commitment to his own wellbeing and has actively engaged on a weekly basis with a psychologist, providing him with holistic support for his mental health and general wellbeing. She is looking "....forward to continuing to support [the Applicant] whilst he requires employment support and excited to be kept up to date on the incredible progress he is making in his rehabilitation."[52]
2. Ms Diana Curuenavuli is the Founder and President of "Number 8 Prison Project Incorporated." Her report is dated 7 June 2023 and appears in the material.[53] She has come to know the Applicant via her chaplaincy visits upon him in immigration detention. She notes the Applicant "....has consistently attended the chaplaincy sessions with our group for the past 3 months."[54] The program Ms Curuenavuli runs a program that is "....aimed at addressing past behaviours, cultural and behavioural barriers and aligning oneself with our faith. We do this by talk therapy....in a group setting on a weekly basis."[55] She notes the Applicant has "....given his life back to the Christ and his actively practising his faith."[56] She is of the belief that "....should [the Applicant] be given an opportunity to re-enter community and his Visa be reinstated he would be and upstanding member of our community."[57]

1. Dr M Lumina Titus is a doctor of medicine in general practise who has known the Applicant for many years. He regards the Applicant as "....a very affectionate father."[58] In the first of his two reports dated 8 March 2023 he said "As his GP, I have noticed that since he was in jail, his behaviours changed, he quitted [sic] smoking and not drinking, which make him more relaxed."[59] Dr Titus notes the Applicant "....was on antidepressant before, which he doesn't need anymore."[60] The second of the reports from Dr Titus is dated 17 March 2023 and it also appears in the material.[61] In this second report, Dr Titus recounts the Applicant's medical history and specific current medications the Applicant takes for diabetes, hypertension and high cholesterol.
2. Ji Fang Zhou is a psychologist in private practice whose report is dated 7 March 2023 which appears in the material.[62] As at the date of his report, he says he has been consulting with the Applicant for about two months and that they had done four sessions. Mr Zhou said the Applicant "....reported a history of trauma due to intrafamilial sexual abuse in childhood.[63]" Mr Zhou further noted the Applicant "....has consistently demonstrated remorse for his actions, and commitment to correct his mistakes from the past."[64] He records that the Applicant "....has also reportedly registered to commence the Facing Up Program for DV offenders on 9 March 2023."[65]
3. Earlier in these reasons, I had cause to review the evidence of the clinical psychologist, Mr Matt Visser, for the specific purpose of assessing risk pursuant to s 501(6)(d)(ii) of the Act. Mr Visser's report is dated 29 December 2024 and, as mentioned earlier, it relevantly appears in the material.[66] Mr Visser was of the view that the main causal factors for the Applicant's offending were his abuse of illicit drugs and alcohol and his mental illness. He is of the view that the Applicant has embarked on a course of rehabilitative treatment and that if this Applicant maintains this pattern of treatment in the community, his recidivist risk would reduce.
4. Mr Visser appeared to have a sound understanding of the Applicant's pattern of domestically violent conduct towards three separate partners. He noted an escalation of the severity of this conduct as time progressed. In terms of assessed recidivist risk, Mr Visser divided his assessment into two parts. He said: "The risk assessment conducted suggested him [the Applicant] to currently be of low to moderate risk of any form of recidivism. For domestic violence his risk of recidivism is moderate, which would reduce if he were to engage in specific therapy to address his trauma."[67]
5. I have earlier noted the exchange between the Applicant and his cross-examiner (at the instant hearing) on the Applicant's risk profile for further domestically violent offending. He agreed that the Applicant represents a moderate risk of physical violence in a future domestic relationship and that this moderate risk incorporates a risk of him using threats and intimidation in a future domestic relationship. He also clarified that his reference to "moderate risk" is analogous to the Applicant's recidivist risk for domestically violent offending being in the medium risk range.
6. As noted earlier in these Reasons, Mr Visser was forthright enough to acknowledge that in conducting his SARA[68] analysis on the Applicant, he overlooked Item 13 of that structured guide referrable to the SARA which looked for "credible threats of death". It is clear from the evidence that the Applicant has made repeated threats to kill domestic partners. The resulting question about the impact that inclusion of the Applicant's repeated threats of death to victims at Item 13 of the SARA would have on the Applicant's risk profile for further domestically violent conduct, Mr Visser said "Look, it would increase it."[69] It seems clear that Mr Visser is of the view that the Applicant's recidivist risk of further domestically violent conduct against a domestic partner is "moderate" which he said was analogous to a risk profile for this type of conduct in the "medium risk range".

1. Ms NS is a former domestic partner of the Applicant and the mother of the Applicant's biological child born in October 2016. Ms NS's most recent statement appears in the material and is dated 17 August 2023.[70] She notes "I can take from a very unique perspective having been the victim of one of [the Applicant's] prior [domestic violence] actions. I have personally seen his progress since the incident....and it has been an amazing transformation that involved a lot of meaningful commitment and rehabilitation from his side."[71] She adds that "I was mostly surprised by the changes to his demeanour, patience and understanding which all supported an amazing amount of maturity that he underwent in a short space of time."[72] Ms NS also gave oral evidence to the instant hearing. This is what she had to say about the Applicant's recidivist risk

MR BERG: Can you give us a bit of an outline about how you came to terms and agreement about looking after the two children, you and [the Applicant], what you sort of spoke about, how you? > > Ms NS: I've actually seen changes in him. So since the last three years, what he was on, what he was doing, I actually see changes in [the Applicant] at this stage. That's why I've come to terms to change my mind and to support him as well too, and to give him another chance to be a father, a full time father in his daughter's life. You know what I mean? I've seen changes in his mental health, his wellbeing. He's more positive. He's not negative. There's no (indistinct). Do you know what I mean? It's just positive. And he believes in God, you know. He's more involved with the kids, more involved with his family. And he's more talking to me in a positive, you know, relationship. So we'll just be coparenting and that. I (indistinct), you know what I mean? (Indistinct) if he gets it revoked. > > MR BERG: Okay. Just my last question for you then, Ms NS. Do you feel that you and your daughters will be safe around [the Applicant]? > > MS NS: I would feel 100 per cent safe. If I didn't feel safe I wouldn't - took my daughter yesterday for her birthday. I'm 100 per cent safe around him. I know what he's done in the past, but I believe he's learned from his mistake.[73]

2. Mr Chris Campbell is the proprietor of an advertising/marketing business trading in Sydney. His referential letter is dated 22 May 2023 and appears in the material.[74] He claims to have known the Applicant "....personally and professionally for a significant period, and I am confident in speaking to his character, work ethic, and potential for positive reintegration into society."[75] Mr Campbell says that the Applicant was "....a valuable member of my team....for three years."[76] He believes the Applicant "consistently demonstrated a strong work ethic, reliability and a positive attitude."[77] He believes the Applicant "....has the potential to reintegrate into society as a productive, responsible, and law-abiding citizen. He has shown remorse for his actions and a genuine commitment to personal growth and positive change."[78]
3. In his oral evidence, Mr Campbell spoke of being in a position to offer employment to the Applicant.[79] He also spoke of having made an offer of accommodation to the Applicant and said "Yes. I have access to boarding houses next to my office and shops. And we can get a room in there, quite affordable. And he can be setup as soon as he's released."[80]

Earlier identified factors and additional findings about recidivist risk

1. Earlier in these Reasons, I identified certain factors which spoke to the Applicant's level of recidivist risk referable to s 501(6)(d)(ii). There is no reason why those factors should not be repeated and relied upon for the present risk assessment. I will also have regard to the additional elements in the evidence I have discussed above for this second risk assessment exercise:
   • past conduct as a predictor of future conduct: Mr Visser noted that in terms of risk, past offending is usually the best predictor of future offending. This Applicant has and established pattern of domestically violent conduct against three partners. Mr Visser was clear that this pattern was suggestive of a reality that the Applicant's risk of committing further domestically violent offending was higher than if he was responsible for a single incident;
   • remorse: earlier in these Reasons I found that while the Applicant had previously expressed remorse, he nevertheless returned to a pattern of committing acts and offences of domestic violence. The Applicant has the benefit of the evidence of Ms NS - herself a victim of his past domestically violent conduct. There is other lay evidence supportive of the Applicant being genuinely remorseful and having a clear understanding of the nature and implications of his past domestically violent conduct;
   • the appeal court's reduction of the head sentence from 12 months to nine months: I have earlier rejected any argument that the reduction of the head term to a period beneath the 12 month threshold appearing in ss 501(6)(a) and 501(7))c) of the Act should now be understood that Parliament does not view the Applicant's offending at the same level of seriousness than would be the case if the 12 month first instance sentence has not been disturbed on appeal. I am satisfied there is nothing before me vitiating the Respondent Minister's lawfully reached state of satisfaction to mandatorily cancel the visa on 22 December 2022;
   • the FC&FC's orders made by consent on 29 November 2021: I repeat my earlier finding: there is nothing before me to suggest the FC&FC made any assessment of the Applicant's recidivist risk of further domestically violent offending in the making of the consent orders. The stark reality for the Applicant is that after these orders were made, he committed further domestically violent offending in July and August 2022;
   • the prospect of accommodation and employment: the Applicant was both accommodated and employed at or around the times he committed his previous domestically violent conduct. Neither employment or safe lodgings seemed to ameliorate his recidivist risk for domestically violent conduct;
   • rehabilitation: I will not cavil with Mr Visser's opinion that the Applicant's recidivist risk would become lower if he remains constantly engaged with rehabilitation in the community. I earlier found (and now find again) that he (the Applicant) is in the formative phases of any rehabilitative process. I have two misgivings about the Applicant's position on rehabilitation: (1) he did not rehabilitatively address the causative factors behind his domestically violent offending until he went to jail; and (2) he has previously made pledges and commitments to participate in rehabilitation but nevertheless proceeded to commit further actions of domestic violence;
   • the claimed absence of domestically violent conduct against the claimed current partner, Ms MH: I repeat and rely on my earlier findings. They have never met in person; she resides in New Zealand; and for the totality of their purported relationship, he has been in immigration detention.

1. I see no reason to depart from the risk assessment arrived at by Mr Visser. The totality of the evidence leads me to comfortably adopt his following findings: (1) in terms of any form of recidivism, I will find this Applicant currently represents a low to moderate risk; and (2) for domestic violence recidivism, I will find this Applicant currently represents a moderate risk of recidivism, which Mr Visser said equates to "medium risk range."
2. To this finding, I will add that this is a case where the harm that would be caused by the Applicant's domestically violent conduct were it to repeated, would be so serious that any such risk should now be found to be unacceptable.[81] I reach this recidivist risk finding with the Direction's dictum that the safety of the Australian community is "..the highest priority of the Australian Government[82] at the forefront of my mind.

1. The Direction also contains a reference to sub-paragraph 8.1.2(2)(c). With reference to this specific sub-paragraph, this matter does not involve a 'refusal to grant a visa to a

non-citizen'. It involves an application for the 'revocation' of a decision refusing to revoke the earlier mandatory cancellation of the Applicant's Visa. This specific paragraph is not relevant to the determination of this application.

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

(d) I have found that the nature and seriousness of the totality of the Applicant's conduct to date has been very serious; > > (e) I have found that re-commission of the Applicant's very serious unlawful conduct would result in harm to both individual victims and our community more generally. I variously characterise this harm as psychological, physical (including potentially catastrophic) as well as materially quantifiable harm in terms of its undue consumption of the community's resources. > > (f) the totality of the evidence points to a safe finding that this Applicant's level of recidivist risk can now be found to be (1) in terms of any form of recidivism, this Applicant currently represents a low to moderate risk; and (2) for domestic violence recidivism, this Applicant currently represents a moderate risk of recidivism which equates to a "medium risk range" and, further, that the harm that would be caused by the Applicant's domestically violent conduct were it to repeated, would be so serious that any such risk should now be found to be unacceptable.

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

1 The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

1. This consideration is relevant in circumstances where:

(a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

(b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

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

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

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

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

(i) the extent to which the person accepts responsibility for their family violence related conduct;

(ii) the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

(iii) 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. I have previously summarised the Applicant's domestically violent conduct which derives from episodes occurring on 17 July 2017, 30 September 2020, 30 July 2022 and 30 August 2022. This family violence conduct is neatly summarised and referenced in the Respondent's SFIC.[83] The Applicant cannot (and will not) now be heard to cavil with either the resulting convictions or the conduct giving rise to those convictions.
2. Paragraph 8.2 of the Direction compels two additional inquiries: (1) it is necessary to ascertain who was a member of the Applicant's family? and (2) whether any of the Applicant's conduct against any such family member amounts to family violence for present purposes? I will address each question in turn.

1. Paragraph 4(1) of the Direction defines family violence to mean ".....violent, threatening or other behaviour by a person that coerces or controls a member of the person's family....or causes the family member to be fearful."
2. The Direction (at paragraph 4.1) defines "member of a person's family" to include "....a person who has, or has had, an intimate personal relationship with the relevant person." Each of the three victims of the Applicant's domestically violent conduct were people who had an intimate relationship with the Applicant at the time he perpetrated this conduct upon them. I am satisfied that each of these three domestic partners (and victims) were members of the Applicant's family for present purposes.

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

1. It will be recalled that 'Family violence' in the Direction is defined as 'violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member) or causes the family member to be fearful'.[84] This definition poses two separate questions:
   • was the Applicant's conduct violent, threatening, or other behaviour that coerced or controlled a member of his family?
   • was the Applicant's conduct violent, threatening, or other behaviour that caused a family member to be fearful?
2. It is clear from the various descriptions of the Applicant's domestically violent conduct that his conduct should now be found to be violent, threatening and/or behaviour that sought to coerce or control each of the three partner-victims and members of his family. I am similarly satisfied that his conduct in each of the recounted incidents referable to these three partner-victims was violent, threatening and was otherwise behaviour that caused each of these three partner-victims to be fearful.

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

1. The Applicant's family violence conduct has been convicted at three separate sentencing episodes. His family violence conduct must now be found to fall squarely within the definitional auspices of paragraph 8.2(2)(a) of the Direction. I will therefore find that (1) the Applicant's conduct towards each of these three domestic partner-victims comprises family violence against those victims; and (2) this Primary Consideration is relevant to determination of the instant application.

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

1. I will now consider each of the factors in paragraph 8.2(3)(a)-(d) in turn for the purposes of assessing the nature and seriousness of the Applicant's family violence conduct.
2. Paragraph 8.2(3)(a): requires an analysis of the frequency of the Applicant's family violence conduct and/or whether there is any trend of increasing seriousness. Across its approximately five year duration, the Applicant has been convicted for the commission of least seven offences referable to domestically violent conduct. This is offending at the rate of greater than once per year. I am satisfied that the Applicant's offending has been frequent. Earlier in these Reasons, I found that the Applicant's domestically violent conduct has been serious from its outset and I will repeat and rely on that finding. However, and concerningly, Mr Visser thought the Applicant's "....offence history suggests a pattern of domestic violence across three separate partners, with escalation of the severity of those offences as time progressed."[85] [My emphasis]. This particular sub-paragraph militates in favour of a finding that the Applicant's family violence conduct has been of a very serious nature.
3. Paragraph 8.2(3)(b): requires consideration of the cumulative effect of repeated acts of family violence. I have earlier stated the cumulative effects of the Applicant's family violence offending and I repeat and rely upon my findings in that regard. The Applicant will not now heard to cavil with the impact of his family violence offending on the three partner-victims. Of great significance for the purposes of this specific paragraph, is that during the episode that occurred on 17 July 2017 against Ms NS, her then seven year old daughter (from another relationship) was drawn into the orbit of that conduct by the Applicant. The seven year old daughter sought to intervene by putting herself between the Applicant and her mother and the then nine month old daughter of the Applicant and Ms Sines. Having regard to the identified cumulative effects of the Applicant's family violence conduct and the fact that it drew two minor-aged children into it orbit, this particular sub-paragraph militates in favour of a finding that the Applicant's family violence conduct has been of a very serious nature.
4. Paragraph 8.2(3)(c): requires consideration of any rehabilitation achieved by the Applicant at the time of my decision since his last known act of family violence. This

sub-paragraph requires three enquiries: 1. first, sub-paragraph 8.2(3)(c)(i) looks for the extent to which the Applicant has accepted responsibility for his family violence related conduct. During his oral evidence at the instant hearing, the Applicant did not appear to unduly cavil with the circumstances of his past offending as it was put to him, particularly during cross-examination. He seems remorseful for what he has done and it may be cautiously said that he is coming to an understanding of the gravity of his past domestically violent offending; 2. second, sub-paragraph 8.2(3)(c)(ii) seeks to understand the extent to which a non-citizen comprehends the impact of their behaviour on the abused person. I have earlier recounted the Applicant's oral evidence where he spoke of the "terrible things" he did to at least one of his former partner-victims. It may be said he has come to some measure of an understanding of how the Australian community regards this apalling abuse of domestic partners as totality abhorrent and unacceptable; 3. third, sub-paragraph 8.2(3)(c)(iii) seeks to identify efforts made by a

non-citizen to address the factors which contributed to their family violence conduct. The Applicant has completed a number of rehabilitative courses directed towards (1) identification of potentially troublesome domestic situations that arise in relationships; and (2) self-regulation, management and control in dealing with those situations. He knows - perhaps better than anyone - the main causative elements behind his lack of domestic control and consequential very serious offending. Mr Visser has identified the criticality around the Applicant remaining attached to a rehabilitative process if returned to the community. The unresolved question for present purposes is whether the Applicant will do so. 5. The outcome of the three inquiries compelled by this paragraph 8.2(3)(c) militate in favour of a finding that Applicant's family violence conduct has been of a very serious nature. I so find. 6. Sub-paragraph 8.2(3)(d) requires me to look at whether the Applicant has, 're-offended since being formally warned, or otherwise since being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence'. On mid-December 2022, the Applicant was dealt with for the offence of "Contravene Prohibition/Restriction in AVO (Domestic)."[86] The relevant police Facts sheet records the following:

"The victim and the accused are ex-partners. The victim and the accused met on a dating > > website called 'Bumble' and were in a 9 month relationship that ended in July 2022. There is a current Apprehended Domestic Violence Order in place protecting the victim from the accused: > > NATIONALLY RECOGNISED DVO 1. You must not do any of the following to [name of victim redacted[87]], or anyone she has/have a domestic relationship with: A) assault or threaten her, B) stalk, harass or intimidate her, and C) intentionally or recklessly destroy or damage any property or harm animal that belongs to or is in the possession of [name of victim redacted] 9. You must not go within 100 Metres of: A) any place where [name of victim redacted] lives/live, or B) any place where she works/work, or C) any place listed here [street address redacted] Blacktown NSW."[88]

7. This order had been made against the Applicant before he breached it on 30 August 2022. The terms of the order made it clear to him that he should not do specific things that could lead to a breach of that order. While we do not have a copy of this actual order in the material, we do have an apprehended domestic violence order obtained by the Applicant against Ms NS. Relevantly, this order provides that:

• You could go to prison for up to 2 years and be fined up to $5,500
• You could be charged with other criminal offences (for example, assault or intimidation), as well as the breach of this order. If convicted of these offences, you could receive a higher penalty such as more time in prison....."

1. It is, to my mind, reasonable to infer that a similar warning would have appeared in the order made against the Applicant which he so seriously breached on 30 August 2022. I am therefore satisfied that the Applicant did commit at least one other act of domestic violence after being formally warned about the consequences of committing such further acts. Accordingly, this sub-paragraph 8.2(3)(d) militates in favour of a finding that Applicant's family violence conduct has been of a very serious nature. I so find.

1. I have found that sub-paragraphs 8.2(3)(a)-(d) facilitate a finding about the very serious nature of the Applicant's family violence conduct. Having regard to the weight I have allocated to the various components of paragraph 8.2(3)(a)-(d) (inclusive), I am of the view (and I find) that this Primary Consideration 2 confers a very heavy level of weight in favour of this Tribunal affirming the Decision Under Review.

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

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

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

a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child , noting that:

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

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.

Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant's immediate family members in Australia

1. In his PCF, the Applicant confirms that in terms of immediate family members, each of his mother, step-brother and three brothers all reside abroad. He is estranged from each of his three former domestic partners, who also comprise the victims of his very serious domestically violent conduct. As best as I understood the evidence, the Applicant contends that his two primary ties to immediate family members comprise Child AA (born in October 2016) and the abovementioned Ms MH who resides in New Zealand and with whom the Applicant has never spent time on a face to face basis. In terms of immediate family members, peculiar as it may seem, I should, out of an abundance of caution, make reference to the Applicant's past domestic partners and victims of his domestic violence.
2. I have already referred to the evidence of Ms NS who is no longer in a relationship with the Applicant but who otherwise considers he has turned a rehabilitative corner and otherwise is content to liaise with him for the purposes of jointly parenting child AA. Another of the three former domestic partners (and victim), is Ms MG, whose statement appears in the material.[89] This statement is dated 30 November 2020 and is four and a half years old. Much as Ms NS observed, Ms MG talks about the Applicant acquiring "....a sense of self-determination that I have noticed in him that I have not seen previously....He's not as shut down and is now more open to discussing his thought process as opposed to shamefully keeping it to himself."[90] Given the age of Ms MG's statement and given she did not give oral evidence at the instant hearing, I will not include her as an immediate family member of the Applicant in Australia.
3. I will, of course, consider the interests of Child AA in my discussion around Primary Consideration 4. However, and at the risk of double-counting, I will note that Child AA, although nine years old and a minor, is nevertheless an immediate family member of the Applicant in Australia. This means I have identified two immediate family members the Applicant has in Australia comprising: (1) Ms NS and (2) Child AA. The material contains photographs and affectionate telephonic messages between the Applicant, Ms NS and Child AA. These photographs and messages can only be interpreted on a basis favourable to the Applicant.
4. The Applicant refers to Ms MH as his current partner. She is a citizen and resident of New Zealand and does not reside "in Australia" as required by paragraph 8.3(1) of the Direction. She cannot qualify as an immediate family member of the Applicant in Australia for the purposes of this Primary Consideration 3.
5. I am of the view that the Applicant does have strong ties with the abovementioned immediate family members comprising Ms NS and Child AA. I will find that these ties militate in favour of the allocation of a heavy level of weight in favour of the Applicant pursuant to this Primary Consideration 3. This finding is predicated on the limiting proviso that each of Ms NS and Child AA are Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely.

Paragraph 8.3(2)(b): Strength, nature and duration of ties with family or social links

1. This paragraph looks at the strength, nature and duration of the extent of any ties the Applicant may have with (1) other family members; or (2) social contacts/links in Australia. The limiting proviso on this inquiry is that these two categories of people with whom the Applicant may have ties must be Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely.
2. The material contains a series of supportive letters from people who could, loosely or more convincingly, be called "social ties" of the Applicant. They comprise:
   • Chris Campbell[91]: I have previously traversed Mr Campbell's evidence. He has a historical connection with the Applicant going back some three-four years. Mr Campbell has little or no doubt about the Applicant's capacity to reintegrate back into the community;
   • Welfare Team of SERCO[92]: this letter is dated 17 July 2024. It seems to be a letter from the detention centre officers who have been overseeing the Applicant during his time in immigration detention. The letter concludes with the words that "....[the Applicant's] proactive behaviour in improving himself in [immigration detention] shows his readiness for seamless integration into the community."[93]
   • Jessica Wendy Mensah[94]: has known the Applicant for eight years. She claims to know the Applicant "as a close family friend."[95] She concludes her statement with "It would be a profound loss for both his community and those of us who care about him if he were to be deported. [The Applicant] is an asset to our social circle, and I firmly believe that his values and goals make him an asset to the broader community as well."[96]
   • Emmanuel Adepoju[97]: has known the Applicant for the past six years. He regards the Applicant as "....a compassionate individual who has devoted much of his life to serving others."[98] He regards the Applicant's "....determination, intelligence, and drive for personal development are qualities that should be recognised and valued. He....strives to be a positive influence in his community and a nurturing father to his daughter."[99]
   • Yinka Durojaiye[100]: has known the Applicant for almost a decade. He regards the Applicant as "....an asset to my social circle and, I believe, to the community. His values and goals reflect a commitment to positive change and personal development. It would be a significant loss to both his family and the community if he were to be deported."[101]
   • Georgena Khammo[102]: has known the Applicant for three years. She is an employment case manager and says "I have witnessed a significant positive transformation in [the Applicant]."[103] She concludes her statement with "It would be a loss to our organisation if [the Applicant] were to be deported."[104]
3. With the exception of Mr Campbell, none of the remaining dot-pointed referees gave oral evidence to the instant proceeding and I will thus temper the weight allocable to their evidence accordingly. Be that as it may, I am satisfied that the people recorded as social links to Australia are people who would be adversely impacted in the event the Applicant was permanently removed from Australia. I am thus of the view that this paragraph 8.3(2)(b) militates in favour of the allocation of a heavy level of weight to the strength, nature and duration of the Applicant's ties to Australia. This finding is predicated on the limiting proviso that each of these three people representing these ties being Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely.

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

1. This component of Primary Consideration 3 requires me to look at how long the Applicant has resided in Australia taking into account the following factors:
   1. whether the Applicant arrived here as a young child? [105] The Applicant arrived in Australia when he was 23 years old. He has lived here for a period of just over a decade. I will find that the Applicant did not arrive here as a young child and that this component of paragraph 8.3(2) does not augment the weight allocable to his ties to this country;
   2. whether the Applicant began offending soon after arriving here? [106] The Applicant arrived here as a 23 year old in December 2014 and recorded his first criminal conviction in Australia in August 2017, less than three years after his arrival. He thus did begin offending soon after arriving here. Thus, the weight allocable to the Applicant for this Primary Consideration 3 can be impugned on the basis of him offending soon after arriving here;
   3. the time the Applicant has spent contributing positively to the Australian community during his time here.[107] He has variously worked in Australia as a sales assistant, poster runner, community support worker and social educator[108] before going to prison in late August 2022 and then being taken into immigration detention in late December 2022. He has been involved in a personal relationship that produced a biological child in Australia. He has made community contributions via his role as a community support worker[109]. On the basis of his employment and community contributions, I will find that this component of paragraph 8.3(2) of the Direction affords a strong level of weight towards a finding about the strength of his ties to Australia.
2. I am of the view (and I find) that based on my analysis of the evidence around subparagraph 8.3(2)(a) of the Direction, sub-paragraphs 8.3(2)(a)(i) and (ii) do not assist the Applicant while sub-paragraph 8.3(2)(a)(iii) of the Direction does augment the weight allocable to him for Primary Consideration 3. Therefore, only the specific sub-paragraph 8.3(2)(a)(iii) serves to augment the weight I have already allocated to the Applicant pursuant to the earlier-applicable paragraphs comprising paragraph 8.3(1) and 8.3(2)(b) of the Direction respectively relating to his ties to immediate family members in Australia and his ties to social contacts in Australia.

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

PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

1. This Primary Consideration requires a decision-maker to consider what impact a decision to refuse or not revoke cancellation of a visa will have on children who are and will continue to be under the age of 18 years of age at the time of the decision.[110] The Direction further requires that the best interests of each child must be considered individually if there are more than one minor child/ren identified.
2. In assessing the best interests of each child/ren, a decision-maker is required to take into account:[111]

a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact); > > b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements; > > c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child; > > d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways; > > e) whether there are other persons who already fulfil a parental role in relation to the child; > > f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child); > > g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; > > h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.

Identification of, and evidence around, relevant minor child/ren

1. I have earlier referred to Child AA born in October 2016. She is the biological child of the Applicant and Ms NS. There seems to be an anomaly in the evidence about a second relevant minor-child. I return to the abovementioned statement[112] of a previous domestic partner of the Applicant and victim of his domestically violent offending, namely, Ms MG. It will be recalled this statement is dated 30 November 2020 and is four and a half years old. But in this statement, Ms MG says "I am currently 11 weeks pregnant and [the Applicant] is the father."[113] She adds that "Due to the positive changes that I have observed, we (presumably Ms MG and the Applicant) have both agreed to keep this baby while he continues to work on himself."
2. As best as I understood the evidence, the Applicant does not propound any biological connection to any other minor child in Australia except Child AA.[114] I will therefore proceed on this basis that Child AA is the only relevant minor child whose best interests I should take into consideration for the purposes of this Primary Consideration 4.

Application of factors at paragraph 8.4(4) of the Direction to the relevant children

1. Sub-paragraph (a): the nature and duration of the Applicant's connection with child AA is a palpable one. She has visited him during the period of his removal from the community. The relationship appears to be a somewhat parental one and this is certainly supported by certain consent orders made by the FC&FC on 29 November 2021 which, inter alia, provide for equal shared parental responsibilty for Child AA between the Applicant and Ms NS. True it may be that due to his removal from the community, he has spent some time away from child AA in a physical sense but this should not diminish the extent of the bond between them. I will find that this sub-paragraph (a) militates in favour of a strong level of weight allocable to the Applicant.
2. Sub-paragraph (b): one need look no further than two elements to be convinced of the likelihood of the Applicant playing a positive parental role in the future life of Child AA: (1) the abovementioned FC&FC Orders which contemplate a shared care arrangement between the Applicant and Ms NS in relation to this child; and (2) the reality that Ms NS is truly supportive of the Applicant playing such a role. In addition, the Applicant has something like a decade of time left to establish and play such a parental role in Child AA's life. I will find that this sub-paragraph (b) militates in favour of a strong level of weight allocable to the Applicant.
3. Sub-paragraph (c): the evidence is silent about any extent to which Child AA may have been impacted by the Applicant's offending or would in future be affected were he to recommit similar offences. We do not know if she is even aware of his the precise nature of his unlawful conduct. I will put this sub-paragraph (c) to one side and render it neutral for present purposes.
4. Sub-paragraph (d): I have earlier referred to the material containing certain telephonic messaging and photographic depictions of the Applicant with Child AA. As mentioned, that material can only be viewed in a favourable light for the Applicant who clearly enjoys a loving and fatherly relationship with Child AA. Granted, he could maintain non-in-person contact with Child AA from Nigeria. I am content to find that Child AA would be significantly impacted by the Applicant's permanent removal from her life and that the cold comfort represented by non-in-person contact with her father would not ameliorate that impact. I will find that this sub-paragraph (d) militates in favour of a strong level of weight allocable to the Applicant.
5. Sub-paragraph (e): obviously, Child AA is primarily parented by Ms NS. However, and importantly, Ms NS is very welcoming of the Applicant resuming a parental role if now returned to the community. This can be seen in her consent to the FC&FC Orders made on 29 November 2021 and in her evidence to this Tribunal. This sub-paragraph (e) should be put to one side and rendered neutral for present purposes.
6. Sub-paragraph (f): as best as I understood the evidence, we do not have any views directly taken from Child AA. That said, we have the evidence of Ms NS, the Applicant and the abovementioned depictions of telephonic messaging and personal contact between the Applicant and Child AA while he has been in immigration detention. Taken in totality, this evidence causes this sub-paragraph (f) to militate in favour of a strong level of weight being allocable to the Applicant.
7. Subparagraphs (g) and (h): the evidence is silent about any of the elements appearing in either of these sub-paragraphs both of which should be put to one side and rendered neutral for present purposes.

1. Having regard to the extent to which the evidence about Child AA speaks to the componentry of paragraph 8.4(4) of the Direction, I have arrived at a finding that, overall, a heavy level of weight should be allocated to her best interests in the event of the Applicant's permanent removal to Nigeria. I thus arrive at a finding that a heavy level of weight is allocable to this Primary Consideration 4 in favour of the Applicant.

PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

1. The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[115] The Direction further explains:

'This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated [in paragraph 8.5(1)-(3) of the Direction], without independently assessing the community's expectations in the particular case.'[116]

2. With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:
   1. 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.
3. This Applicant has clearly breached the Australian community's expectations by his record of very serious criminal offending in this country which is evidenced by a significant number of very serious breaches of the Australian criminal law. Therefore, the Australian community, 'as a norm' expects the Australian Government not to allow him to remain in Australia.
4. The Direction also states that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:[117]

(a) acts of family violence; or > > (b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage; > > (c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect; > > (d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or > > (e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or > > (f) worker exploitation.

5. This Applicant's criminal history does contain convictions that fall within the auspices of certainly at least one of the abovementioned sub-paragraphs of paragraph 8.5(2) of the Direction. He has multiple convictions for very serious acts of family violence against three domestic partners.[118] I am easily satisfied that the Applicant's family violence offending is sufficiently serious such that the Australian community would expect the Australian Government to refuse to set aside the mandatory cancellation of his Visa.
6. The remaining question is whether there are any factors which modify the Australian community's expectations. This question is informed by the principles in paragraphs 5.2(5), (6) and (7) of the Direction. In summary these are:

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

7. In relation to sub-paragraph (a) of the immediately preceding paragraph [128], the term 'limited stay visa' is not defined in the Act. The Applicant in this case held a Partner (Class BS) (Subclass 801) visa until it was mandatorily cancelled on

22 December 2022.[119] This Visa is classified as a 'permanent visa permitting the holder to travel to and enter Australia for 5 years from date of grant.'[120] As this Visa permitted the Applicant to remain in Australia on a permanent basis, the Visa held by the Applicant cannot be classified as a 'limited stay visa.'[121] Therefore, this sub-paragraph (a) is not applicable to the Applicant. 8. In relation to sub-paragraph (b) of the abovementioned paragraph [128], the Applicant has spent just over a decade in Australia since arriving here in December 2014 aged 23 years. He has spent about 30% of his life in this country and is currently aged 33 years. He has a reasonable work history in Australia.[122] He has fathered a biological child in this country and has made community contributions to it.[123] Whatever participation in, and contribution to, the Australian community he may have made during his time here cannot be safely found to have been 'short'. Therefore, the Australian community's tolerance is not lowered by this part of the principles in 5.2(5) of the Direction. 9. In relation to sub-paragraph (c) of the abovementioned paragraph of [128], I repeat that the Applicant arrived in Australia as a 23 year old in December 2014. Although he has spent about a third if his life in Australia, he did not come here at a very young age. This means the Australian community's level of tolerance of criminal or other serious conduct by this Applicant is not raised. 10. In relation to sub-paragraph (d) of the abovementioned paragraph [128], I am not of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his criminal offending of the same type and magnitude already committed and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community's expectations for present purposes. This is because I am of the view that the nature of the totality of his offending he has committed in Australia in a criminal history spanning over five years and the resulting harm from the totality of that conduct, has been of such a very serious magnitude as to dispel any applicable countervailing considerations. 11. In relation to sub-paragraph (e) of the abovementioned paragraph [128], I am of the view that the totality of the Applicant's unlawful conduct in this country has been sufficiently serious such as to displace any strong countervailing considerations militating in favour of a positive visa outcome. I have found that the Applicant poses a moderate recidivist risk of further domestically violent offending and that the harm resulting from any recommission of such offending would be so serious such as to render that risk unacceptable to the Australian community were he now returned to it.

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

Other Consideration (a): Legal consequences of the decision

1. The Applicant expressly makes no claim for protection that could possibly engage Australia's non-refoulement obligations in the event of his removal to Nigeria.[124] Even if he did make such a claim, he could apply for a protection visa. He is not prevented from doing so by either the bar in s 48A of the Act or the prohibition in s 501E of the Act. The High Court had made it clear that a non-citizen before this Tribunal with capacity to make an application for a protection visa means this Tribunal can defer any assessment of whether any non-refoulement obligations are owed to that non-citizen.[125] In any event, no such assessment is urged by the Applicant for present purposes.
2. The Applicant has been in this country for a decade. It would be trite to suggest (or find) he would not experience any adverse consequence in the event an unsuccessful outcome in this proceeding compelled a return to Nigeria with no prospect of ever returning here in future. As a matter of law, he would, in that event, be permanently excluded from re-entering Australia. There are two obvious consequences arising from an unsuccessful outcome before this Tribunal. The first consequence is permanent exclusion from this country. That consequence - real as it is - does not engage the terms of paragraph 9.1 of the Direction. The plain and clear terms of s 501E of the Act prohibit him from making any application for another visa with the exception of a protection visa.[126]
3. The second consequence of an adverse outcome in the instant matter involves the impact on him in terms of (1) emotional and other impediments he will experience if removed and (2) the impact upon the ties and other relationships he has with people in Australia. Neither of these two consequential aspects engage the terms of paragraph 9.1 of the Direction. The former (i.e impediments) fall for consideration under paragraph 9.2 of the Direction. The latter were considered earlier in these Reasons pursuant to paragraph 8.3 of the Direction.
4. Accordingly, while there may well be legal and other consequences for the Applicant if unsuccessful in this Tribunal, it would be unsafe to allocate anything more than moderate weight to those legal and other consequences.

Other Consideration (b): Extent of impediments if removed

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

(a) the non-citizen's age and health; > > (b) whether there are any substantial language or cultural barriers; and > > (c) any social, medical and/or economic support available to that non-citizen in that country.

2. Paragraph 9.2(1)(a): the Applicant is 33 years of age and still a relatively young man. Despite his relative youth, he claims to be "....bedevilled by diabetes, hypertension, hyperlipidaemia, albuminuria and obesity."[127] For these physical symptoms, he says "The health professionals at Villawood look after me well and provide me with my medication. I currently use Rosuvastatin, Perindopril Arginine, Fish Oil, Gliclazide and Dapagliflozin; Metformin."[128] As against this, it should be noted that during his evidence in chief he was asked to describe the current state of his physical health. He responded with "My state of health is good at the minute. I feel fit and healthy. I've been training. I've been doing doing exercises. My sugar level is normal. I eat healthy, I train. I exercise myself....I've been working on myself...."[129]
3. The Applicant also claims to be suffering from mental health symptoms which he describes as "depression / anxiety." For these symptoms he says "....I am also seeing mental health professionals to assist me in my mental health treatment. I see a psychologist weekly or fortnightly. .....I also see, mental health nurses who assess me and prepare my mental health assessments."[130] It should also be noted that Mr Visser made a diagnosis of Post Traumatic Stress Disorder.[131] ("PTSD"). My finding will be that the Applicant's age is not an impediment to him returning to Nigeria but that his physical and mental health issues do present as impediments. To whatever extent they do present as impediments, I am of the view that those impediments are not insurmountable.
4. Paragraph 9.2(1)(b): The Applicant spent about the first two thirds of his life in Nigeria. He was born in Nigeria and spent his infant nurture there. He completed his schooling in Nigeria and commenced his university studies in that country. It cannot be safely found that he has a complete lack of cultural or linguistic familiarity with that country. One decade in Australia does not supersede or obliterate the Applicant's cultural and linguistic recollection of Nigeria. I am of the view there are no substantial language or cultural barriers impeding the Applicant's return and re-settlement in Nigeria.
5. Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and/or economic support available to the Applicant in Nigeria. First, with reference to economic support, the Applicant has compiled a not-unimpressive employment history in Australia. Although he has physical and mental health symptoms, they have not prevented him from engaging in remunerative employment in this country. There is little or nothing to suggest he will not be able to apply whatever skills and experience he has acquired in the Australian workforce to the work he can do in Nigeria. He told the previous Tribunal hearing that his family are materially well off In Nigeria. In his evidence to this Tribunal, he sought to moderate that evidence by suggesting his mother was now in a poor financial position and suffering as a result. I am of the view that any lack of economic support in Nigeria is not an impediment to his return and resettlement there.
6. Second, I have referred to the Applicant's physical and mental health symptoms. To the extent he may require publicly available care and treatment for his symptoms in Nigeria, he will be able to avail himself of such medical support as is available to other citizens of that country. The Applicant makes reference to the DFAT[132] Country Information Report for Nigeria in his material.[133] This report makes it clear that "Nigeria's health system faces significant challenges in meeting the needs of its population."[134] In terms of mental health support, the report goes on to say "DFAT assess Nigeria has a limited capacity to provide formal mental health services to its citizens. ......Mental health has historically been neglected on Nigeria's health and development policy agenda. ......one in four Nigerians suffer from mental illness, but fewer than 10 per cent of mentally ill Nigerians have access to the care they need."[135] There are clearly differences between Australia and Nigeria in the standard of such publicly available care. This is not to suggest the Applicant will be entirely devoid of such medical support in Nigeria for the treatment of his physical and mental health symptoms. The question of medical support in Nigeria is a possible but not insurmountable impediment to his return and resettlement there.
7. Third, with reference to social support available to him in Nigeria, the evidence confirms the Applicant's mother resides in Lagos which is the capital. She is in her mid to late 60's and, in his evidence to this Tribunal, he said that if returned to Nigeria, he would go and live with his mother in her house in Lagos which she owns. While his three surviving siblings do not reside in Nigeria, he confirmed that he had a step-brother who does reside in that country. In his material, the Applicant says "My Mum has around 7 or 8 siblings, and my dad [who died in 2012] has about 12 or 13 siblings. While we do have relatives in Nigeria, we're not very close to them and I have limited contact with any of them."[136] Whatever the Applicant may now say about his mother's changed financial circumstances and the fact he has limited contact with his extended family in Nigeria, the reality is that he will, at least in the short to medium term and even longer term, be able to find safe and secure lodgings with his mother and use that opportunity as a base from which he can gradually re-establish himself in Nigeria. Limited contact with extended family does not mean he is anonymous or unknown to them. Accordingly, any lack of social support is not an impediment to this Applicant's return and resettlement in Nigeria.

1. My findings about impediments are as follows:
   • the Applicant's age is not an impediment to any return to Nigeria. To the extent his physical and mental health symptoms present as impediments, they are not insurmountable;
   • there are no substantial language or cultural barriers impeding the Applicant's return and resettlement in Nigeria;
   • any lack of economic support is not an impediment to his return and re-settlement in Nigeria;
   • to the extent that any lack of medical support is an impediment to his return and re-settlement in Nigeria, I have found it is not an insurmountable one; and
   • there is no lack of social support now presenting as an impediment to the Applicant's return and resettlement in Nigeria.
2. Given my findings about each of the three sub-paragraphs to this paragraph 9.2 of the Direction, I am of the view that this Other Consideration (b) confers, a moderate level of weight in favour of this Tribunal exercising the power to revoke the mandatory cancellation of the Applicant's Visa.

Other Consideration (c): Impact on Australian business interests

1. The parties are ad idem that this Other Consideration (c) is not relevant to the instant determination. I agree and will allocate neutral weight to it.

1. The allocation of weight to the Other Considerations in the present matter can be summarised as follows:

(a) legal consequences of the decision: is of moderate weight in favour of revocation; > > (b) extent of impediments if removed: is of moderate weight in favour of revocation; and > > (c) impact on Australian business interests: is of neutral weight.

1. Under section 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant's Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied there is another reason, pursuant to the Direction, to revoke the cancellation decision. As noted (and found) previously in these Reasons, the Applicant does not pass the character test on either of the two grounds I have discussed[137].
2. In considering whether there is another reason to exercise the power afforded by section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant's Visa, I have had regard to the considerations referred to in the Direction. I find as follows:
   • Primary Consideration 1: is of a very heavy level of weight in favour of affirming the Decision Under Review;
   • Primary Consideration 2: is of a very heavy level of weight in favour of affirming the Decision Under Review;
   • Primary Consideration 3: is of a heavy level of weight in favour of setting aside the Decision Under Review;
   • Primary Consideration 4: is of a heavy level of weight in favour of setting aside the Decision Under Review;
   • Primary Consideration 5: is of a very heavy level of weight in favour of affirming the Decision Under Review.
3. I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined respective weights I have allocated to Primary Considerations 3 and 4 together with Other Considerations (a) and (b) are comprehensively and dispositively outweighed by the combined respective weights I have allocated to Primary Considerations 1,2 and 5.
4. A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding there is not another reason to revoke the mandatory cancellation of the Applicant's Visa.

1. Pursuant to section 105 of the Administrative Review Tribunal Act 2024 (Cth), this Tribunal affirms the decision made by a delegate of the Respondent on 24 August 2023 to not revoke the mandatory cancellation of the Applicant's Partner (Class BS) (Subclass 801) visa.

Applicant's Tender Bundle - Part 1

Applicant's Tender Bundle - Part 2

Applicant's Tender Bundle - Part 3

[1] Partner (Class BS) (Subclass 801) visa, hereinafter referred to as "the visa."

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

[7] Pearson v Minister of Home Affairs [2022] FCAFC 203.

[8] Migration Amendment (Aggregated Sentences) Act 2023 (Cth).

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

[15] Migration Amendment (Aggregated Sentences) Act 2023 (Cth)

[22] At [42] - [43]. Cited at [7] of R5.

[27] Transcript, p 80, lines 41-45: p 81, line 1-7.

[28] See A3, p 2; and p 4, lines 24-30.

[33] Migration Amendment (Aggregated Sentences) Act 2023 (Cth).

[35] See NSW Police Facts Sheet: R1, pp 647-650.

[36] See NSW Police Facts Sheet: R1, pp 661-664.

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

[39] Direction No 110 commenced on 21 June 2024. It replaces Direction No. 99 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.

[40] This number includes the double-recording of the offence whose court reference number ends in "....7602". This offence was charged and convicted as "Assault occasioning actual bodily harm (DV) - T2". It was first dealt with at a NSW Local Court in December 2020 but then called up by another NSW Local Court when it dealt with the Applicant in December 2022.

[42] Paragraph 8.1.1(1)(b)(i) of the Direction.

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

[44] Paragraph 8.1.1(1)(b)(iv) of the Direction.

[45] Paragraph 8.1.1(1)(b)(iii) of the Direction.

[73] Transcript, p 65, lines 42-47; p 66, lines 1-14.

[79] See generally, Transcript, p 60, lines 23-29.

[81] Pursuant to Paragraph 8.1.2 of the Direction.

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

[87] Note to reader: this victim is not Ms NS. It is a separate victim.

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

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

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

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

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

[114] See, for example, the Applicant's PCF where he only lists Child AA as a minor-child connected to him.

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

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

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

[118] Pursuant to paragraph 8.5(2)(a) of the Direction.

[120] Migration Regulation 1994 (Cth), vol 2, sch 2, subclass 801.511.

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

[124] See A1, p 11, [65]. See also R1, p 142. See also R2, p 17, [82].

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

[126] Specifically, s501E(2) of the Act.

[132] Department of Foreign Affairs and Trade (Cth).

[134] DFAT Country Information Report, p 13, [2.21].

[135] DFAT Country Information Report, p 14, [2.24] and [229].

[137] That is, neither pursuant to s 501(6)(a) taken with s 501(7)(c) (substantial criminal record) or s 501(6)(d)(ii).