Montsho and Minister for Immigration, Citizenship and Multicultural Affairs... [2024] AATA 1053 | Case summary

Montsho and Minister for Immigration, Citizenship and Multicultural Affairs... [2024] AATA 1053 | Case summary | Zoe

[31]

The following facts are established by the documentary and oral evidence before the Tribunal.
Mr Montsho was born in 1992 in the Republic of Botswana.
He spent his childhood and young adulthood in Botswana where he resided with his mother, PT. He has one sibling, a sister. He has no knowledge of or relationship with his father.[1] His mother remarried, but Mr Montsho does not have a close relationship with his step-father in Botswana. Mr Montsho has extended family members, including several cousins, in Botswana. He does not have a close relationship and he is not in contact with his extended family members.
On 30 December 2015, at the age of 23, Mr Montsho first arrived in Australia as a dependent of his mother on a Domestic Worker (Diplomatic) visa (subclass 995). He resided in Canberra with his mother and sister, and he engaged in a course of study at the Canberra Institute of Technology.[2]
At some point in 2016, Mr Montsho met Ms H. Mr Montsho's evidence is that he met Ms H online and they commenced a relationship. [3]
On 12 December 2016, Mr Montsho departed Australia for Botswana "for the new year holidays".[4]
He returned to Australia on 3 February 2017.
After completing the course of study, Mr Montsho again departed for Botswana on 24 June 2017. He states this was due to his visa expiring and his inability to afford international student fees.[5] He continued the relationship with Ms H while he was in Botswana, using electronic communication technology.
In November 2017, Ms H gave birth to a son conceived with Mr Montsho.[6]
Mr Montsho returned to Australia on 9 June 2018 under a Visitor Visa, "to visit my Mum and my partner".[7] He resided with his mother in Canberra and visited Ms H and his son "regularly".[8]
On 4 September 2018, he departed for Botswana once more.
Mr Montsho returned to Australia on 27 May 2019 under a Visitor Visa.[9] He has remained in Australia to the present.
On 22 June 2019, Mr Montsho applied for grant of a Class UK Subclass 820 Partner visa, sponsored by Ms H (substantive visa application). He was granted a Class WA Subclass 010 Bridging A visa (bridging visa) which came into effect on expiration of his Visitor Visa on 27 August 2019.[10]
On 27 June 2019, Mr Montsho and Ms H registered a civil partnership in the Australian Capital Territory.[11]
Following his return to Australia in May 2019, he and Ms H resided with her mother, KM, in Sydney. This was "uncomfortable" and Mr Montsho moved into rental accommodation.[12] On Ms H's evidence, when the child was approximately 2 years old (in or about November 2019) she and child moved to Narooma and Mr Montsho remained in Sydney, where he worked. His evidence is their "relationship was on and off".[13]
Mr Montsho's employment was affected during the Covid-19 pandemic and related public health orders early in 2020. He received $750 per week from the government to offset his loss of income. His consumption of alcohol increased. Mr Montsho gave evidence of initially binge-drinking and using cannabis on weekends, followed by increasingly frequent drinking and intoxication during the week.
As will appear, Mr Montsho committed a number of criminal offences in the period from 24 January 2021 to 15 October 2022. His offences were committed when he was intoxicated with alcohol. In related court proceedings, he admitted to the offences and entered guilty pleas. His first offence was against Ms H. He was subject to a 2-year Apprehended Violence Order (Domestic) (AVOD) issued for Ms H's protection. His most recent offence was against two 15-year-old female children for which he was sentenced to a 12-month term of imprisonment with a non-parole period of 9 months, commencing on 18 October 2022.
On 31 March 2023, Mr Montsho's bridging visa was cancelled under s 501(3A) of the Migration Act 1958 (Act) (mandatory visa cancellation decision). Consequently, by operation of s 501F(2) of the Act, as Mr Montsho's substantive visa application had not been decided, it is taken to have been refused.[14]
On 31 March 2023, Mr Montsho signed a request for revocation of the mandatory visa cancellation decision.[15] He made representations to the Minister for Immigration, Citizenship and Multicultural Affairs (Minister) in response to the invitation to do so[16] and provided supporting documents.[17] On 4 July 2023, the Minister's Department acknowledged receipt of Mr Montsho's representations.[18]
On 22 July 2023, Mr Montsho was released from prison and taken into immigration detention at the Villawood Immigration Detention Centre as he is an unlawful non-citizen in Australia[19]. Mr Montsho remains in immigration detention.
On 21 February 2024, a delegate of the Minister decided not to revoke the mandatory visa cancellation decision under s 501CA(4) of the Act (non-revocation decision).[20] The delegate was not satisfied Mr Montsho passed the character test defined in s 501(6) of the Act or that there was another reason to revoke the mandatory visa cancellation decision.[21]
On 22 February 2024, Mr Montsho was given notice of the non-revocation decision,[22] whereupon he applied to the Tribunal for review of the decision.[23]

[47]

(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

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

(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.

[58]

Mr Montsho asserts there is 'another reason' to revoke the mandatory visa cancellation decision. He argues the serious conduct he engaged in is out of character and it was contributed to by his abuse of alcohol. He alleges the risk of him re-engaging in such conduct is very low, he does not accept the risk assessments reported in pre-sentence documents. In his submission, these assessments were made before his incarceration and subsequent detention, during which he has abstained from alcohol and he has participated in rehabilitative activities, including attending courses and obtaining psychological treatment. He explained he intends to remain abstinent from alcohol and he is resolutely committed to that objective: he has made a promise to himself about this. He acknowledges there may be temptations in social settings where others consume alcohol should he be released into the Australian community, but he will not succumb to temptation and jeopardise his immigration status again.
Mr Montsho alleges he has gained insight into his previous alcohol abuse and now is clear-eyed about the problems this has caused, including the adverse effects on the victims of his offending and on his immediate family: Ms H and their son. He repeatedly expressed regret and remorse. He contends he has insight into the factors which led to him abusing alcohol, including loneliness (being separated from his family), financial stresses, housing and co-tenancy difficulties he experienced in Sydney, reduced employment and government payments during the Covid-19 pandemic, as well as drinking in social settings and with associates. On this latter point, Mr Montsho maintained, in the future, should he be released into the Australian community, he would not again drink alcohol and he would not resume his previous behaviour with associates.
Mr Montsho asserts he has not been given but he deserves a second chance. He contends he has powerful incentives to maintain abstinence from alcohol and to ensure he does not repeat his previous conduct and offences. He explained he now understands his previous conduct has placed in jeopardy his future in Australia as a father to his son and as a partner to Ms H. He submits, in the circumstances which will pertain should the mandatory visa cancellation decision be revoked, continuation of his Visa would be subject to further character considerations by the Minister when determining his Partner visa application: if the Partner visa is not granted his Visa would lapse shortly thereafter.
Mr Montsho asserts over the 8-year period since he first arrived in Australia and commenced a relationship with Ms H, and during the 5 years he has resided in Australia in particular, he has developed strong and enduring family ties, and he has contributed to the community by working, paying taxes and donating to charities. He alleges the immediate members of his family, primarily Ms H and his son (who are Australian citizens), are adversely affected by the mandatory visa cancellation decision and this will continue unless it is revoked.
Despite separation from his family members during the periods of his incarceration and detention, and during previous enforced separation under the terms of the AVOD imposed following his family violence offence in 2021, Mr Montsho asserts he has maintained a close, strong and continuing relationship with Ms H and their son. He submits Ms H and the child will suffer adverse effects, financially, practically, psychologically and emotionally, should he be forced to return to Botswana. Mr Montsho submits forced removal to Botswana will diminish his ability to provide practical, emotional and financial support to Ms H and his son, as his employment prospects and earning capacity (and wages) in Botswana would be substantially lower than in Australia. This eventuality, he argues, would have an adverse impact on Ms H and his son who are Australian citizens. Ms H, he asserts, would be denied practical support as a single working mother caring for his son, including difficulties collecting him from school for example.
Mr Montsho is concerned if he is forcibly returned to Botswana, he may never see his son in person again and his parental role would be limited by unreliable electronic communications. His son, he alleges, would be harmed emotionally and psychologically by permanent separation from his father: he would be distinguished from his peers and he would be denied the opportunity to share experiences with and to learn from his father. The harm caused to his son would be exacerbated, he argues, by the difficulty maintaining frequent and meaningful audio-visual contact with Ms H and his son from Botswana. Mr Montsho explained digital telecommunications and internet connectivity are unreliable in Botswana. Mr Montsho argues enforced separation from his son is not in his son's best interests, and this should outweigh all other considerations.
In Mr Montsho's submission, the legal consequences of not revoking the mandatory visa cancellation decision weigh in favour of revoking the mandatory visa cancellation decision. The submission is raised on two legs.
Firstly, Mr Montsho is concerned the cancellation of his Visa leaves him with the status of an unlawful non-citizen in Australia, facing ongoing immigration detention pending removal to Botswana if the mandatory visa cancellation decision is not revoked. This eventuality, so the argument goes, will result in permanent physical separation from his son, who is an Australian citizen. He asserts if he is forcibly returned to Botswana, he may never see his son again as Ms H has a fear of flying and she could not afford the costs of visiting him in Botswana, and he would be prevented from returning to Australia as he would have no real prospect of being granted a further visa.
Secondly, he asserts the automatic refusal of the Partner visa application he lodged with Ms H is an unforeseen and unfair consequence. He contends a decision on his Partner visa application has been pending for 4 years, without any result, and the deemed refusal by operation of law consequent to the mandatory visa cancellation decision, without any consideration of the merits of the application or the interests of Ms H and their son, and without prior notice or forewarning, is disproportionate and unfair. Conversely, he contends, if the mandatory visa cancellation decision is revoked, his Partner visa application will remain to be determined and the Minister would have the opportunity to make fresh findings in respect of relevant character considerations.
Despite initially raising the prospect of a protection claim, Mr Montsho expressly declined making any submissions in respect of protection and non-refoulement issues when given an opportunity to do so.
Mr Monthso alleges he will face serious impediments if he is forced to return to Botswana. These include adverse emotional and psychological effects consequent to separation from his family, without access to the same level or quality of treatment which is available in Australia. Mr Montsho is concerned he does not have a support network in Botswana and he is not in contact with his extended family members. This, he alleges, may lead to him becoming homeless and without practical means to sustain himself in Botswana. He asserts there is a lower degree of public safety and personal security in Botswana than in Australia and this would expose him to physical and psychological risks of harm.
It is Mr Montsho's submission the Tribunal should be satisfied there is 'another reason' to revoke the mandatory visa cancellation decision. He contends, when relevant considerations are weighed, those in favour of revoking the mandatory visa cancellation decision (and setting aside the non-revocation decision), particularly the best interests of his son, outweigh those against doing so.
The Minister does not agree. In the Minister's submission, considerations relating to protection of the Australian community and Australian community expectations are reinforced by the seriousness of Mr Montsho's conduct, particularly in respect of his offences against women and female children, including family violence, and the risk of harm should he engage in similar conduct again. The Minister reasons these considerations out-weigh all other considerations, including the adverse effects on members of his immediate family in Australia and the best interests of his son.
The Minister asserts the very serious nature of Mr Montsho's conduct is reinforced by a trend of increasingly serious offending and his disregard for Australian laws during the relatively short period in which he has been in Australia, since May 2019. In the Minister's submission, there is a medium to high level of risk Mr Montsho would engage in further similar very serious offending conduct if his visa is reinstated and he returns to the community. The Minister alleges further similar conduct would result in physical and psychological harm to members of the Australian community, particularly women, and the risk thus posed exceeds the threshold of tolerance within the Australian community.
The Minister accepts Ms H is taken to be a member of Mr Montsho's family for the purposes of the definition of family violence in s 4(1) of the Direction and notes 'the Government's serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia'. The Minister submits the offence Mr Montsho committed on 24 January 2021 caused Ms H to be fearful and it is within the meaning of 'family violence'. The abusive and intimidatory elements of the offence are abhorrent, the Minister argues, noting what the Tribunal said in Lum and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[38]:

[60]

The Minister asserts, contrary to community expectations and the privilege of a non-citizen remaining in Australia, Mr Montsho's criminal offending and serious conduct has exposed members of the Australian community, and women in particular, to the risk and threat of harm, as well as aggressive sexualised intimidatory and violent conduct. The Minister contends Mr Montsho has not been law-abiding and he has not respected important Australian institutions: he has consumed a significant amount of law enforcement and court resources at the expense of the Australian community in the short period since he moved to Australia in May 2019. The Minister submits the Australian community would not expect Mr Montsho to have his visa reinstated.
In the Minister's submission, Mr Montsho's parental role in respect of his son has been adversely affected by his previous offending and other serious conduct. The Minister notes Mr Montsho has been more absent than present, having resided with Ms H and his son for only several months in 2019. In the Minister's submission, Mr Montsho's past behaviour and the risk he will relapse and offend again informs the likelihood of him playing a positive parental role and offering a positive role model for his son. Noting Ms H's evidence she is willing to give Mr Montsho one last chance, the Minister argues exposing the child to the risk of further relapses or offences by Mr Montsho is not in the child's best interests.
The Minister accepts the legal consequences of the mandatory visa cancellation decision include the automatic refusal of Mr Montsho's Partner visa application and Mr Montsho becoming an unlawful non-citizen in Australia, subject to immigration detention pending removal from Australia. The Minister also accepts Mr Montsho might face some impediments on returning to Botswana.
Nevertheless, it is the Minister's submission the primary considerations against revoking the mandatory visa cancellation decision outweigh those in favour of doing so. It is for this reason the Minister asserts the Tribunal should not be satisfied there is another reason to do so and, absent satisfaction, the power to revoke is not enlivened.

[65]

(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, 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:

violent and/or sexual crimes;

crimes of a violent nature against women or children, regardless of the sentence imposed;

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:

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;

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;

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));

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;

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

e) the cumulative effect of repeated offending;

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

g) 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).

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

[80]

Considering the Magistrate's comments, it is quite clear she considered a term of imprisonment to be a last resort when sentencing Mr Montsho.
Mr Montsho's offence against the two 15-year-old girls is viewed as very serious conduct for the purposes of s 8.1.1.(1)(a)(ii) of the Direction. While his offences are not sexual crimes, his molestation of the victims involved both sexual elements which are apparent in the pattern of his previous offending conduct. He took hold of and attempted to kiss one victim's hand and he placed his hands and arms around her to restrict her movement. He engaged in aggressive intimidatory language and behaviour with impliedly sexual undertones.
On the agreed Police facts, prior to interacting with the female children, Mr Montsho reportedly harassed a woman outside the Landmark Hotel. While the details of this conduct are not in evidence, the conduct is consistent with the pattern of Mr Montsho's aggressive antisocial behaviour towards women when he is intoxicated.
On 18 January 2022, Mr Montsho assaulted a male co-tenant with whom he shared a house. Mr Montsho cavilled with some of the alleged facts, but he entered a guilty plea and agreed the assault included actual and threatened violence. In the result, a 2-year Apprehended Personal Violence Order (APVO) was issued against him for the protection of the victim.[52] This conduct might not be considered to be serious conduct for the purposes of s 8.1.1(1)(b) of the Direction but the offence and the sentence imposed (a fine of $1,000 and the 2 year APVO) are relevant considerations under s 8.1.1(1)(c), (d) and (e).
The sentences imposed are a measure of the seriousness and repetitive pattern of Mr Montsho's criminal offending. So much is clear from Magistrate Goodwin's observations.
Mr Montsho was convicted of 11 offences arising from 4 incidents in the period from 24 January 2021 to 15 October 2022.
Mr Montsho's repeated offending and the pattern of aggressive, sexualised, intimidatory and violent nature of his conduct is a trend of increasing concern, the concern is increased by repetition and recidivism in breach of court orders. Mr Monthso was released into the community on bail and under an intensive corrections order. The conditions attaching to his release into the community included abstaining from alcohol and committing no further offences. Nonetheless, Mr Montsho proceeded to consume alcohol and to commit further offences. The extent of his disregard is demonstrated by:

[82]

This increases the cumulative effect of Mr Montsho's offending on victims in the Australian community, particularly women, as well as in respect of the drain on police and court resources.
I accept Mr Montsho was not formally warned his visa might be cancelled should he offend again. Under s 8.1.1(1)(g) of the Direction, the absence of forewarning about the consequences of further offending on his migration status does not weigh in Mr Montsho's favour, however.
Mr Montsho disclosed he was convicted of a 'possession of fake currency' offence in Botswana and he was sentenced to an 8-month term of imprisonment (partly suspended).[54] Without evidence of the particular facts of this disclosed offence, it is difficult to know if it would amount to an offence in Australia, although that is possible, even likely.
Mr Montsho has not committed further offences during the period of his incarceration since October 2022 and immigration detention from 23July 2023. The available records suggest he was granted parole at the first opportunity and he has an unblemished record in prison and in immigration detention. He has repeatedly expressed regret and remorse for his previous offences and conduct, and he has engaged in rehabilitative programs and some psychological treatment during the period he has been removed from the community.
While these matters weigh in his favour, under the principle in s 5.2(4) there is a low tolerance of crimes or other serious conduct committed by a non-citizen who has been participating in and contributing to the Australian community for only a short period. Mr Montsho had been participating in the Australian community for only 20 months or so after moving to Australia in May 2019 when he first engaged in very serious conduct - all of his criminal offences and very serious conduct occurred within the following 3.5 years. I note Mr Montsho previously participated in the Australian community before June 2018, including as a student and in employment, for varying periods from December 2015. There is no evidence he was convicted of any crimes or offences during these periods.
Considering these matters separately and cumulatively, I am satisfied the seriousness of Mr Montsho's conduct weighs squarely against revocation.

[92]

(a) On 11 March 2022, Mr Montsho was reported to have "conceded that he never thought his level of alcohol consumption was an issue until he committed the current offence" (on 13 December 2021) and "stated he is willing and able to undertake interventions related to his aggression, substance abuse, and sex offending behaviour". [59] > > (b) On 19 March 2022, Mr Montsho was assaulted and sustained a head injury. He was treated and discharged from the Westmead Hospital on 23 March 2022 with instructions, including "No alcohol consumption for at least 6 months".[60] Mr Montsho did not follow this instruction. > > (c) On 21 December 2021, Mr Montsho was granted bail on condition he was not to drink alcohol or take drugs unless prescribed by a doctor.[61] Within the period of 5 months, Mr Montsho proceeded to breach this bail condition on 4 occasions, including on 9 May 2022 when he was found to have breached his bail conditions within 24 hours of being given a warning on 7 May 2022.[62] > > (d) Subsequently, on 11 May 2022, Mr Montsho was sentenced to an 18-month term of imprisonment to be served in the community under an intensive correction order.[63] Mr Montsho proceeded to breach this order on 19 June 2022, committing further offences when intoxicated.[64] He did so despite being reported to engage in online drug and alcohol groups administered by Odyssey House prior to 20 May 2022, of which it was stated "this engagement was a positive reinforcement of his need to remain abstinent from alcohol".[65] > > (e) On 29 July 2022, Mr Montsho was reported to attribute his offending behaviour to his state of intoxication: he "conceded that alcohol use would have contributed to his aggressive conduct" and he was "willing to engage with a local drug and alcohol counsellor in addition to maintaining contact with Odyssey House".[66] On 31 August 2022, Mr Montsho was reported to have "initially minimised his issue with alcohol, though upon being challenged was able to acknowledge that his alcohol use is related to his index offences and re-offence" and he was "engaging with Odyssey House for treatment for his alcohol use and confirmed he is willing to return".[67] This notwithstanding, on 15 October 2022, Mr Montsho proceeded to commit further offences when intoxicated. > > (f) In a report dated 12 October 2022, Community Corrections recommended "the intensive corrections order is urgently revoked" "because Mr Montsho poses a high risk of sexual offending whilst consuming alcohol".[68] Thomas Winn (a Community Corrections Team Leader) stated: > > Mr Montsho's alleged reoffence indicates a high risk to the community. The sexual nature of his offending and the concerns raised of the sexual element to the reoffence would indicate his risk cannot be mitigated in the community at this time.[69]

[95]

Mr Montsho's reported intention and his primary strategy for avoiding further offending have not yet been tested in the community. Previous similar undertakings he made were tested and failed in the community.
I accept Mr Montsho's circumstances have changed with enforced removal from the community and the change in his immigration status. No doubt, these changes add strength to his avowed resolve to abstain from alcohol and not re-offend. I accept his present resolve is genuine and he comprehends the link between his use of alcohol and his antisocial conduct and his commission of aggressive, sexualised, intimidatory and violent offences.
Nonetheless, however heartfelt this resolve might be in his present circumstances in detention, it is not possible to gauge with any certainty how he would cope with the stresses of life which will inevitably arise should he be released into the community. Mr Montsho behaved well while in prison and in detention and there are no records of misconduct or negative case notes in the materials before the Tribunal. There are records of Mr Montsho feeling safe in detention. Whether he will be able to maintain his equanimity and his avowed resolve when dealing with the different stresses and circumstances which might arise outside the institutional environment he has experienced since October 2022, when he is not feeling safe for example, is an open question. There is a risk the resolve he presently harbours might be transformed by the stresses and uncertainties of life in the community into an aspiration he is unable to meet.
Mr Montsho gave written and oral evidence he intends to obtain further psychological treatment and to continue with support programs if he is released into the community. Ms H confirmed their plan for Mr Montsho to reside with her and their son, as a family. In this context, she would provide Mr Montsho support to maintain his resolve to abstain from alcohol and further offending. Ms H explained she is willing to give Mr Montsho a last chance, but she would not tolerate a relapse. I accept with Ms H's support and psychological treatment, supplemented by further rehabilitative programs, the risk of Mr Montsho relapsing and re-offending might be reduced.
Considering the change in Mr Montsho's circumstances, there is a question about the validity of previous objective risk assessments and the weight these should be given.
In the 6 July 2023 report, Community Corrections stated that Mr Montsho's risk of re-offending was "Tier 3 High because he was assessed as 'above average risk' using the STATIC-99".[71] I understand the reference to 'STATIC-99' is a reference to the actuarial assessment tool 'Static-99R' applied by Ms Blake on 28 February 2022. It is not clear if a fresh assessment of risk was made using the Static-99R tool in the preparation of the 23 July 2023 report. Ms Blake's February 2022 assessment was "limited by having no direct contact with Mr Montsho" and was based on available file information at the time. Mr Montsho's circumstances have changed somewhat over the intervening period from February 2022, and they will change again if he is released into the community and the plan he has made to obtain further treatment and to reside with Ms H comes into effect. The extent to which Mr Montsho's present and expected future circumstances bear upon the previously assessed risk of Mr Montsho re-offending must be considered.
Ms Blake reported:

[107]

Mr Wardliner's evidence that Mr Montsho will likely have episodes of decompensation reinforces the risk of him consuming alcohol again during such an episode or, as he has repeatedly done in the past, in response to financial and other stresses, or social pressures.
All risk assessments are coloured by uncertainty. In this case, an optimistic assessment is raised on the resolve and the aspirations of Mr Montsho and Ms H. Mr Montsho asserts he will not associate with people who use alcohol or cannabis, as he did in the past. This stands against Mr Wardliner's note that Mr Montsho's "Supportive friend network" is a protective factor in the risk assessment. Mr Wardliner refers to Mr Montsho's sister as a protective factor, but Mr Montsho's evidence is that he is not close to his sister. I note she has not given any evidence in this case.
Ms H's evidence that she will not tolerate any further relapse is likely to strengthen Mr Montsho's resolve. Nevertheless, Mr Montsho has spent only several months residing with Ms H and their son as a family in the latter part of 2019. How he will cope with the pressures of family life in a domestic setting with Ms H and the child has not been tested, and the resulting uncertainty feeds into the risk assessment.
The objective risk assessments, albeit possibly in need of up-dating, are more cautious. I am not persuaded the objective assessments are presently invalid to the extent they should be discounted. The record and pattern of Mr Montsho's criminal offending and other serious conduct, and the harms which are likely to result to individuals in the Australian community should he re-offend again, countenance a measured approach. Mr Wardliner's evidence that Mr Montsho will likely have episodes of decompensation sharpens this point in circumstances where Mr Montsho's avowed resolve to abstain from alcohol has not been tested in the community. Presently, it is not possible to gauge with any certainty how Mr Montsho would cope with the stresses of life which will inevitably arise should his visa be reinstated and he be released into the community.
Mr Montsho expressions of regret and remorse for his offences, and evidence of his insight into the effect of his offending on victims and into "his issues"[88] feed into the risk assessment. Mr Montsho's insight into his offending and related 'issues' relates to his use of alcohol and the effect on victims. His evidence on these matters does not persuade me he has insight into the sexual elements in his pattern of offences and very serious conduct. While alcohol no doubt played an important part, there is little evidence Mr Montsho understands why he engages in aggressive sexualised intimidatory behaviour against women and girls when he is drunk. While it might be expected related matters would be touched on in relevant short courses Mr Montsho completed, without evidence of such understanding or insight, there are serious questions about the extent of his rehabilitation. I note Mr Montsho has not yet undergone the intensity and duration of treatment recommended by Ms Blake in respect of his sexual offending.
Even though the documentary records suggest Mr Montsho initially placed some blame for his family violence on Ms H and he appears to have downplayed his offences against the female children, in his oral evidence he accepted full responsibility for his conduct. The genuineness of his regret and the depth of his insight is exemplified by his understanding his victims would have "been scared by his behaviour"[89] and would have "felt violated and disgusted by his actions".[90] There is evidence "Mr Montsho seemed to consider how he would feel if his own sisters [sic] were victims to behaviour of this nature, and stated he would be upset and angry".[91] That said, considering Mr Montsho's evidence and reports of his previous expressions of regret and remorse, it appears to me much of Mr Montsho's regret is expressed in terms of the impact on himself, his family and separation from his son,[92] feeling ashamed and disappointed by his conduct.[93]
Considering all these matters, the risk assessment presently rests on a sharp point: Mr Wardliner's evidence it is "natural" and "likely" Mr Montsho will experience episodes of decompensation in his "progress to positive action". How he will cope during such periods, even with Ms H's support and ongoing treatment, is uncertain. Whether or not the likelihood of Mr Montsho responding to future stressful circumstances which might arise can reasonably be assessed on the basis of his past responses, the fact of his past conduct is unavoidable; and it should not be discounted too readily, or too optimistically, in assessing the risk of relapse and recidivism.
Despite his protestation to the contrary, I am satisfied there is a very real risk Mr Montsho will relapse into alcohol use, as he has done in the past, and in that event there is a consequential risk he will re-offend. The risk is not remote or insignificant. In this context, I am satisfied the previous risk assessments have continuing relevance and validity. There is a medium to low risk of him re-offending using the LSI-R inventory and a high risk of him engaging in further sexual offences using the Static-99R assessment tool.
In the circumstances of Mr Montsho's case, despite his efforts at rehabilitation and the changed circumstances he plans with Ms H if he is released into the community again, I am satisfied the nature and the risk of harm he poses exceeds the threshold of tolerance of the Australian community.
On balance, considering these matters separately and cumulatively, I am satisfied this consideration weighs against revoking the original decision.

[111]

When addressing this primary consideration, the principle is s 5.2(6) guides consideration to the extent that the inherent nature of family violence is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
There is no dispute family violence is relevant consideration in Mr Montsho's case.
Mr Montsho was convicted of a single text-based family violence offence using a telephone service on 24 January 2021. Mr Montsho accepted the police recitation of facts.[94] The offence caused Ms H to be fearful for her safety. A 2-year AVOD was issued for her protection from Mr Montsho.
Mr Montsho's family violence offence involved text-based abuse and intimidatory threats of violence, the content of which I have set out above (par [69]). On Ms H's evidence, Mr Montsho has never subjected her or their son to physical violence. She explained she attempted to dissuade police from proceeding with her complaint, without success, and subsequently she applied to the Local Court of New South Wales for revocation of the AVO,[95] also without success.
Mr Montsho has not repeated the family violence offence and there is no pattern of increasing seriousness.
Mr Montsho's expression of remorse for this offence is tainted by his initial apportionment of some blame for what occurred on Ms H. When closely examined on this point, Mr Montsho retreated from this and explained he now accepts full responsibility for his actions.
Mr Montsho has undertaken rehabilitative courses on relevant topics, including Healthy Relationship, Understanding Addictions, Stress Management, Domestic Violence 101, Anger Management 101, Drug and Alcohol Abuse 101, Sexual Harassment Compliance and Conflict Resolution 101.[96] While in detention, he obtained mental health treatment from Mr Wardliner and mental health nurses and he has been abstinent from substance use, including alcohol and cannabis.
The level of concern is informed by the inherently abhorrent nature of family violence and its corrosive effects in the community. Nevertheless, the Government's concern is proportionate to the seriousness of the family violence. In this instance, the seriousness is reduced by the non-physical and singular nature of the offence.
Taking each of these factors and their cumulative significance into account, I am satisfied this consideration weighs against revoking the mandatory visa cancellation decision, but only lightly.

[116]

The strength, duration and nature of Mr Montsho's ties with Ms H and his son must also be considered on the facts.
Mr Montsho has spent only several months residing with Ms H and their son since moving to Australia in May 2019. Prior to this, he was absent for long periods in Botswana during which frequent and regular contact was difficult. Subsequently, from 2020 to October 2022, he resided apart from Ms H and engaged in visits from time to time, on weekends. It was during this period Mr Montsho increased his use of alcohol and cannabis and he engaged in criminal offences and the very serious conduct to which I have referred above. From October 2022 to the present, Mr Montsho has been in prison or in immigration detention. During his absences, Mr Montsho has engaged with Ms H and their son by telephone or via the internet every couple of days and on weekend visits.
Ms H gave powerful and compelling written and oral evidence of the strength of the relationship between herself, her son and Mr Montsho.[100] She explained the enduring love and the commitment they have for each other, and their plans to live as a family, together. She acknowledged, nevertheless, there have been difficulties and extended periods of separation in their relationship.
Her evidence she is willing to give Mr Montsho one last chance suggests the bond which ties them has frayed to a single strand of uncertain dimensions, the strength, flexibility and resilience of which will be tested if Mr Montsho's visa is reinstated and he takes up life with Ms H in the community. Despite this uncertainty, I am satisfied the ties between Mr Montsho and Ms H and their son are continuing, at least presently.
Viewed in this context, I am satisfied the mandatory visa cancellation decision has an impact on Ms H and the child. Even though Mr Montsho was not residing with Ms H and the child when he was taken into custody on 18 October 2022 (and he had not been residing with them since in or about January 2020), the mandatory visa cancellation decision caused him to be taken into immigration detention on 23 July 2023. This has an ongoing impact on Ms H and the child, who were anticipating he would be released from prison on parole and he would take up residence with them.
Ms H gave evidence of the family and parental role Mr Montsho would play if the mandatory visa cancellation decision is revoked, caring for their son and assisting her to provide for his needs, financially, emotionally, socially and parentally. There is some evidence Mr Montsho provided financial support to Ms H in the past, including with the assistance of his mother in Japan. The extent of this support is not presently evident. If the mandatory visa cancellation decision is not revoked, and Mr Montsho returns to Botswana Mr Montsho submits he will be less able to provide financial support to Ms H and their child, as wages are lower and his employment prospects are uncertain. Certainly, he will not be in a position to provide practical physical support, in person. Mr Montsho will not be physically present and able to assist Ms H with the myriad practical activities of daily life, with the child's transport for example. He will not be physically present to assist the child: Ms H gave evidence of her concern Mr Montsho is able to teach their son how to play football for example. These are impacts arising from physical absence. The weight of this consideration is somewhat reduced as Mr Montsho has been physically absent and apart from Ms H and the child for most of the time since the child's birth for reasons other than the mandatory visa cancellation decision.
There are likely to be further emotional impacts on Ms H and the child, in respect of dashed hopes of reunion as a family and continuing separation, if the mandatory visa cancellation decision is not revoked. The same can be said if Mr Montsho's Visa is reinstated and he subsequently relapses and offends again.
There is no direct evidence from Mr Montsho's sister and her visa status is not apparent on the available evidence. Ms Montsho is a citizen of Botswana and it is not certain her visa status as an international student will lead to permanent residence in Australia, although Mr Montsho asserts that is her intention. Any impact on Ms Montsho of a decision not to revoke cancellation of her brother's visa, is reduced in circumstances where Ms Montsho and her brother do not have a close relationship. Nonetheless, in that event, Ms Montsho would be left with no direct family members in Australia.
There is no direct evidence from Ms H's mother, KM. Despite the absence of direct evidence, if Mr Montsho's Visa is not reinstated KM may be adversely affected to some extent. Evidence given by Mr Montsho and Ms H suggests KM provides practical support to Ms H in respect of her child in Mr Montsho's absence. In the event Mr Montsho's visa remains cancelled, Ms H's need for KM's support would likely continue. It is not clear if KM considers her supportive role to be a burden or if, prospectively, it should be considered as an adverse impact of a non-revocation decision. On Ms H's evidence, I am satisfied KM's supporting role is somewhat constrained by her employment. Nevertheless, it is likely a decision not to revoke the cancellation of Mr Montsho's visa would have an impact on KM. While the significance of any such impact is difficult to assess on the available evidence, I am satisfied it is not great.
Mr Montsho ordinarily resided in the Australian community for approximately 3.5 years after he moved to Australia in May 2019. He ceased residing with Ms H in or about January 2020 and he began offending in January 2021. This informs the nature and the duration of Mr Montsho's ties to Australia. Ms H and the child were impacted by Mr Montsho's circumstances prior to his incarceration and prior to the mandatory visa cancellation decision. This informs the relative impact of the decision on them. The strength of Mr Montsho's family ties, despite long periods of separation, attracts greater weight which is reinforced, albeit marginally, by the positive contribution he made in the period before he commenced offending.
Taking these matters into account, separately and cumulatively, I am satisfied this consideration weighs in favour of revoking the mandatory visa cancellation decision.

[119]

The only child to consider is Mr Montsho's son, who is presently 6 years old.
On the evidence of Mr Montsho and Ms H, Mr Montsho maintained a relationship with his son during the periods in which he has been absent from Australia and removed from the community. During these periods of absence, Mr Montsho maintained contact with his son using electronic communications, albeit with some difficulty with internet and electronic communications connectivity in Botswana in the period following the child's birth in 2017 to May 2019. In all likelihood, the frequency and regularity of Mr Montsho's contact with his son (who was under 18 months old) during this period was affected by such circumstances and, on Ms H's oral evidence, it was mostly in the form of "messages".
It is probable Mr Montsho resided with Ms H and the child in her mother's house for several months from May 2019. Ms H's evidence establishes that Mr Montsho moved out of KM's house when the child was approximately 2 years old, in or about the end of 2019 or the early part of 2020.
Thereafter, Mr Montsho has not resided with Ms H and his son. He resided in Sydney, where he was employed from time to time. I understand Mr Montsho spent time visiting Ms H and the child on weekends. With the onset of the Covid-19 pandemic and related public health orders, Mr Montsho explained his employment was affected and he received a Government payment. His alcohol consumption increased from binge drinking on weekends to drinking every day. He admitted to using cannabis with friends. On Mr Montsho's evidence, this pattern of behaviour continued, but he would not drink or use cannabis when visiting his son and Ms H. Ms H gave evidence Mr Montsho consumed alcohol and was intoxicated in the house with her son on approximately 3 occasions when visiting, whereupon she asked him to leave. She explained she did not allow him to speak to the child when he was intoxicated, and she did not allow him to drink or use cannabis around her or her son.
It was in this context, Mr Montsho's family violence offence occurred on 24 January 2021, whereupon he was subject to a 2-year AVOD for Ms H's protection. Mr Montsho explained his subsequent pattern of behaviour, consuming alcohol, committing criminal offences and engaging in antisocial conduct, in reference to circumstances which arose including housing difficulties and alleged homelessness, living separate from his family and depression. I note in the commission of the offences Mr Montsho committed while he was intoxicated on 15 October 2022, he engaged in an abusive telephone conversation with a person, probably Ms H.
In all likelihood, the frequency and the extent of Mr Montsho's use of alcohol and cannabis, and his related intoxication, over the period from 2020 to October 2022 would have reduced his meaningful contact with Ms H and with his son during this period. I am satisfied he was more absent than present in his son's life during this period.
From 18 October 2022 to 23 July 2023, Mr Montsho was in prison, and he has subsequently been held in immigration detention. I am satisfied Mr Montsho maintained regular contact with his son during this period. This took the form of audio and audio-visual communications (noting the child has a link to contact Mr Montsho on his tablet device), as well as in-person visits with Ms H from time to time.
While Ms H's evidence in respect of her child's best interests traverses the parental support Mr Montsho provides to their son and the assistance he provides, it is clear enough Mr Montsho's past behaviour has had an effect on the child. One aspect of this is the physical separation from his son by choice in 2020, under the AVOD from January 2021 and while incarcerated from 18 October 2022 and in detention from 23 July 2023. Ms H gave evidence of the child's emotional response to the absence of his father and the child's related social sensitivities. This is another aspect of the effect of Mr Montsho's past conduct on his son.
Mr Montsho's conduct, behaviour and absences have diminished his parental role and his relationship with Ms H. The last chance Ms H will allow is one measure of this, and it is of significance when considering the best interests of the child. The likelihood Mr Montsho will relapse into use of alcohol is very real and not remote.
Prospectively, should Mr Montsho relapse into alcohol or drug use and resume the pattern of his past behaviour, this would likely have a significant negative effect on the child. Not least, this could be expected to cause Mr Montsho to be physically separated from the child again, either by action of Ms H or forced removal under the criminal justice system or the Act. Furthermore, in such circumstances, it is likely Mr Montsho's conduct would not be consistent with him playing a positive parental role or providing his son a positive role model, particularly in respect of alcohol and drug use, and in relation to women.
While the effect on the child of physical separation from Mr Montsho might be ameliorated to an extent by use of electronic communications, the same cannot be said in respect of the negative effects which would be likely to arise from Mr Montsho's recidivist behaviour and adverse role modelling. Revocation of the mandatory visa cancellation decision would expose the child to this prospect.
Mr Montsho submits, if the mandatory visa cancellation decision is not revoked and he is required to return to Botswana, the resulting physical separation from his son is likely to have a negative effect on the child, against his best interests. He alleges Ms H and his son will not be in a position to visit him in Botswana as Ms H is scared of flying and she would not have the money to do so. This is supported by Ms H's evidence and her assertion she would not move to Botswana as doing so would reduce her son's quality of life and his opportunities for education and development.
The force of this submission is tempered somewhat by the facts of this case. Mr Montsho resided with Ms H and the child for a period of only several months in 2019 and, otherwise, he has been absent and engaging in contact with the child using electronic media with physical contact being confined to weekends and occasional visits. The closeness of the bond between Mr Montsho and his son and the emotional effects on the child Ms H described have developed in these circumstances. Viewed through this lens, while difficulties might arise with electronic communications and physical contact would be limited by distance if Mr Montsho returns to Botswana, it does not follow that the close relationship between father and son would end or that Mr Montsho would be unable to play a parental role with his son as he has done during the extended periods of his absences since the child was born and, in particular, from 2020. That said, the loss of physical contact with his father, even only weekends and during occasional visits, could be expected to have a negative effect on the child which feeds into consideration of his best interests.
Considering Mr Montsho's past conduct, there are real questions about the extent to which he is likely to play a positive parental role over the next 12 years before his son turns 18. Should the pattern of Mr Montsho's past conduct involving use of alcohol and sexualised, intimidatory and aggressive behaviour, particularly in respect of women, emerge again, this would run counter to him playing a positive parental role and being a positive role model for his son. Mr Montsho is alive to this risk, which was squarely put to him. So is Ms H, who is willing to give Mr Montsho a last chance. It is on this rather tenuous basis, Mr Montsho continued presence in Australia is said to be in the best interests of the child.
On Ms H's evidence, the child wants his father back to play an active practical parental role in his life. Even though the child's views are likely genuine and heartfelt, the child is only 6 years old. While the child's views must be taken into account, a child of this age is unlikely to have the tools and maturity to consider all the relevant information in respect of his father's past conduct and the risks of recidivism when evaluating what is likely to be in his best interests. For this reason, the weight which can be given to the child's views is reduced.
While there is no evidence the child has been subject to abuse or neglect by Mr Montsho, on Ms H's evidence, on 3 occasions she asked Mr Montsho to leave the house when he was intoxicated. Whether or not the child has been exposed to Mr Montsho's past drunken behaviour or other serious conduct, which is not presently established, it is probable the child has experienced some emotional issues as a result of Mr Montsho's prolonged absences during his short life, particularly since 2020.
Mr Montsho argues this consideration should be given very substantial weight, outweighing all other considerations. I do not agree. Consideration of the best interests of the child is not as clear cut as Mr Montsho asserts. The likelihood of Mr Montsho relapsing into alcohol use and re-offending is not remote or fanciful. It is a very real possibility which would likely have a negative effect on the child. This would not be in the child's best interest.
Nevertheless, taking all these matters into account, I am satisfied this consideration weighs in favour of revocation.

[121]

(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.

(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is 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:

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.

(3) The above expectations of the Australian community apply regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.

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

[124]

Thus, noting the principle set out in s 5.2(6) of the Direction and the question of relevance thus posed in the circumstances of each case, consideration of 'the norm' must be weighed with other relevant considerations (noting that primary considerations generally are to be given more weight than other considerations) when deciding if there is another reason to revoke the cancellation of the non-citizen's visa.[105]
Mr Montsho concedes this consideration weighs against revoking the mandatory visa cancellation decision.
I am satisfied it weighs quite heavily in the balance. Mr Montsho's family violence offence adds weight, albeit the offence was singular and it did not involve physical violence. So, too, do the aggressive, sexual, intimidatory and violent elements of the offences he committed against women and female children.
Mr Montsho demonstrated significant and repeated disregard for Australian law, repeatedly breaching conditions of bail and intensive correction orders, and intruding upon the rights of victims to go about their daily activities in public without being exposed to the kinds of sexualised, intimidatory and drunken abuse, molestation and very serious conduct to which he subjected them.
It is on these matters the concerns about Mr Montsho's character are raised. Quite clearly, Mr Montsho's conduct is related to his consumption of alcohol, but consumption of alcohol contrary to Court orders is not a mitigating factor. In all likelihood, as Ms Blake observed, Mr Montsho's underlying impulsivity and poor problem-solving skills are exacerbated when he is intoxicated. A similar conclusion might be drawn in respect of Mr Montsho's propensity to engage in offending behaviour towards women when he is intoxicated. Whether this exposes an underlying attitude towards women in Mr Montsho I cannot say on the present evidence, but his crimes and very serious conduct suggest, when intoxicated, he engages in aggressive sexualised, intimidatory and violent behaviour towards women which raises serious character concerns.
The concerns about Mr Montsho's character are somewhat mitigated by his remorse and the rehabilitative efforts he has made during the period he has been abstinent from alcohol while being held in custody and in detention. But the reduction in the apportionment of weight is slight, as Mr Montsho's avowed resolve to remain abstinent from alcohol and his rehabilitative efforts have not been tested or demonstrated in the community. Furthermore, the extent of his rehabilitation is unclear as he has not undertaken a program for sexual offenders of the duration and intensity recommended by Ms Blake.
The time Mr Montsho participated in the Australian community without offending is short, from May 2019 to January 2021. He has demonstrated disregard for Australian laws and disrespect for important institutions, including courts. His conduct does not accord with the Government's statement of community expectations.
Viewing these considerations through the prism of Australian community expectations as expressed in s 8.5 of the Direction and considering what is appropriate in the circumstances, on balance, I am satisfied significant weight should be given to the 'norm' in the context of Mr Montsho's adverse character assessment.
This consideration weighs against revoking the mandatory visa cancellation decision.

[127]

Decision-makers are directed in s 9.1 of the Direction to be mindful that unlawful non-citizens are, in accordance with s 198 of the Act, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under s 189. This is the legal consequence of policy expressed in s 501(3A) and related provisions of the Act.
The mandatory visa cancellation decision effected a change in Mr Montsho's legal status in Australia from that of a lawful non-citizen visa holder to that of an unlawful non-citizen subject to immigration detention under s 189 pending removal from Australia.
Furthermore, the mandatory visa cancellation decision under s 501(3A) triggered operation of s 501F(2) in respect of Mr Montsho's Partner visa application. Under this provision, Mr Montsho's Partner visa application is taken to have been refused without any further consideration of the merits of the application. In all likelihood, the Partner visa application fee will not be refunded and that is an additional legal consequence. I note there is no evidence before the Tribunal of the fee paid with Mr Montsho's Partner visa application.
Initially, Mr Montsho raised the possibility of a protection claim, but this was expressly not pressed or substantiated. There is little evidence presently before the Tribunal to support such a claim. I note the materials in G19 and G20. Mr Montsho has not applied for a protection visa and he expressly disavowed any protection claim during the hearing.
This notwithstanding, to the extent the materials raise the possibility of protection issues and related considerations, as Mr Montsho has not applied for a protection visa and that possibility remains open to him, the preferable course is to defer any consideration of the possible claim until such an application is made. Should that occur, all relevant issues and related materials could be properly considered in a manner which is not presently possible within the limited time available under s 500(6L) of the Act.
Subject to protection considerations, should Mr Montsho apply for a protection visa, if the mandatory visa cancellation decision is not revoked and the Partner visa application remains refused by operation of law, the Minister accepts it is unlikely any other visa application by Mr Montsho would succeed. In the near future at least this is likely correct, as relevant character considerations could be expected to arise in the assessment of any such application and parts of Schedule 2 and Schedule 5 of the Migration Regulations 1994, may be applicable, including special return criteria if Mr Montsho leaves Australia.
Mr Montsho alleges he was not aware his Partner visa application is taken to have been refused. He presses for the mandatory visa cancellation decision to be revoked, whereupon his Partner visa application will remain to be determined on its merits and argues, in that context, the Minister will have another opportunity to have regard to relevant character considerations.
There is some force to this proposition, although deferring the character consideration in this manner would require revocation of the mandatory visa cancellation decision and releasing Mr Montsho into the Australian community, pending resolution of his Partner visa application. There is no evidence or even any reasonable estimate of when the Partner visa application would be decided if the deemed refusal is reversed. I note Mr Montsho asserted the period the application has been on foot already exceeds the Department's published standard. In any event, a decision to reinstate Mr Montsho's visa and, thereby, release him into the Australian community can only be made by complying with the Direction and weighing all the relevant considerations.
The consideration of legal consequences is an 'other consideration' which is to be given less weight than primary considerations of relevance.
Nevertheless, I am satisfied these matters weigh in favour of revocation.

[131]

There is no direct evidence of the impact of the mandatory visa cancellation decision or the decision to be made presently, one way or the other, on members of the Australian community of the victims and their family members of Mr Montsho's criminal offending, other than Ms H and the child.
Ms H provided an Impact Statement,[107] in which she provides very strong support for Mr Montsho to be allowed to remain in Australia, and she urges revocation of the mandatory visa cancellation decision.
The Minister urges caution in consideration of her Impact Statement as a victim and when attributing weight.
In consideration of Ms H's familial relationship with Mr Montsho and the clear and unequivocal evidence she has given in supporting his case, some caution might be appropriate when apportioning weight. The impact on Mr Montsho's family members of the mandatory visa cancellation decision and non-revocation has already arisen when considering the strength, nature and duration of Mr Montsho's ties to Australia under s 8.3 of the Direction. The consideration under s 9.3 has a different focus, in respect of the impact of the mandatory visa cancellation decision and revocation (or non-revocation) on members of the Australian community, and in particular victims and their families. Thus, it is the impact of these decisions on Ms H as a victim of Mr Montsho's criminal behaviour which must be considered.
Viewed through that lens, it is an unavoidable fact Ms H is a victim of Mr Montsho's family violence offence. In cases of this kind, it is not unknown for a victim to lend support to their perpetrator remaining in Australia. In this case, Ms H does so for reasons she expresses quite powerfully in her Statement and in her evidence. Her evidence goes to the impact on her and the child should the mandatory visa cancellation decision not be revoked and Mr Montsho be required to depart from Australia. The enforced physical separation which will result is likely to have an adverse impact on Ms H and the child.
It is relevant to observe Mr Montsho and Ms H were living separately, by choice, from in or about January 2020. On Ms H's evidence Mr Montsho moved into separate residential arrangements when the child was approximately 2-years old because it was "uncomfortable" in her mother's house. On Mr Montsho's evidence, he and Ms H "split up" prior to the commencement of his increased alcohol consumption and offending. The imposition of the 2-year AVOD added to their separation, as did the custodial sentences Mr Montsho received for his criminal offending. The mandatory visa cancellation decision extended their separation as Mr Montsho was taken into immigration detention on his release from prison on parole on 26 July 2023. The impact of this on Ms H and the child I have already discussed.
These are relevant matters to take into account when determining the weight which should be given to this consideration.
The apportionment of weight must take account of the extent to which Ms H adverts to matters which do not go to the impact on her, as a victim, of the mandatory visa cancellation decision and the decision to be made presently in respect of revocation.
Considering these matters, Ms H's evidence of the impact on her as a victim weighs in favour of revocation.
There is no direct evidence from other victims of Mr Montsho's offences. The impact of Mr Montsho's criminal behaviour on other victims can be understood on the basis of materials placed before the courts and sentencing remarks of Magistrates. This is underscored by the uncontested facts of his offences, including the sexual and violent nature of his offences against female victims. A decision to revoke the cancellation of Mr Montsho's Visa might be expected to raise concerns amongst his victims about the risk he would re-offend. But without evidence, however, this is no more than a possibility about which little can be said.
On balance, taking account of these maters separately and cumulatively, this consideration does not weigh strongly for or against revocation.

[136]

Primary considerations relating to the protection of the Australian community, family violence and the expectations of the Australian community weigh heavily against revoking the mandatory visa cancellation decision.
The very serious nature of Mr Montsho's conduct and the risk of harm to individuals in the Australian community, particularly women and female children, should he re-offend adds substantial weight. The seriousness of harm which would result should Mr Montsho re-offend reduces the tolerance of risk. The weight is increased by the likelihood he will experience episodes of decompensation which increase the very real risk he will relapse into use of alcohol or cannabis and, consequently, the likelihood he will re-offend.
Mr Montsho's remorse, insight, treatment and rehabilitation serve to lessen the weight, but not greatly. The rehabilitative programs and the treatment he has undertaken are not of the frequency or duration recommended by Ms Blake (weekly sessions for 6 to 12 months). The extent of Mr Montsho's insight into sexual elements of his offending and his very serious conduct is unclear, even though the remorse and regret he has expressed is likely genuine.
Mr Montsho's progress and resolve have not been tested in the community where he will likely encounter stressful circumstances, not least in the context of family life, residing with Ms H and his son. Mr Montsho has only several months experience of living as a family with Ms H and his son in 2019. How Mr Montsho will react and respond to such stresses is uncertain. Ms H's support and further active participation in rehabilitative programs and relevant treatment may assist, but the likelihood he will relapse into alcohol or drug use, as he has done in the past, is not fanciful or remote. It is a real possibility which weighs against the mitigating effects of the rehabilitation and treatment he has undertaken.
In the context of Australian community expectations and the 'norm' expressed by the government, the character concerns arising in respect of Mr Montsho's record of serious and offending conduct add significant weight. The Australian community's tolerance of Mr Montsho's criminal and other serious conduct is reduced by the relatively short period in which he has been ordinarily resident in Australia.
Conversely, the primary considerations relating to the strength, nature and duration of Mr Montsho's ties to Australia and the best interests of his child weigh for revocation of the mandatory visa cancellation decision, as do other considerations.
Mr Montsho's ties to Australia are not broad or of long duration. He resided with Ms H for only several months in 2019, and they have lived separately since in or about January 2020. To the extent this lightens the weigh, it is offset by the strength and nature of his ties to Ms H and their son. The strength of these ties is measured, in part, by Mr Montsho's extensive periods of physical separation from Ms H and their child and Ms H's evidence she is willing to give him a 'last chance'. The contingent state of the relationship between Ms H and Mr Montsho, consequent to Mr Montsho's past behaviour, including his past offences and very serious conduct, and the uncertainty thus introduced informs the strength and reduces the weight of Mr Montsho's familial ties in Australia. The likely adverse effects on Ms H and the child of not revoking the mandatory visa cancellation decision are coloured by the likelihood Mr Montsho will experience period of decompensation periodically and significant uncertainty about his response to such eventualities. This consideration increases the weight, but not greatly.
Mr Montsho argues his child's best interests should outweigh all other considerations. There is some force to this submission. The desire of the child to engage in a physical relationship with his father is a very weighty matter, in which rights of the child to such a relationship intersect with the child's best interests which are affected by the behaviour and conduct of the father and the legal consequences of his past crimes. On the available evidence the attribution of weight is not as disproportionate as Mr Montsho contends. The best interests of the child must be considered in the particular circumstances, noting he has likely been adversely affected by Mr Montsho's past conduct and behaviour. The likelihood of Mr Montsho playing a positive parental role in the future is contingent on the likelihood he will experience episodic decompensation and the very real risk he will relapse and re-offend in the future. On balance, however, I am satisfied the child's best interests weigh substantially in favour of revocation, but not decisively.
The following considerations carry less weight than the primary considerations to which I have referred, but they add weight in favour of revocation.
The legal consequences of the mandatory visa cancellation decision, including the deemed refusal of his Partner visa application and the likelihood the fee paid with that application will not be refunded, weigh in favour of revocation. It is not appropriate to revoke the mandatory visa cancellation decision in order to provide Mr Montsho with a second chance on grounds the character concerns could be re-assessed in the context of his Partner visa application. The weight of this consideration is reduced as the change in Mr Montsho's immigration status is mandated by legislative policy where character thresholds are surpassed consequent to his 'serious criminal history' and his Partner visa application is taken to have been refused by operation of law. Mr Montsho was not warned of this possibility, but s 8.1.1(1)(g) of the Direction states this does not weigh in his favour. To the extent any protection claim or non-refoulement obligation is suggested (and no such claim was expressly made), it is best deferred for consideration in the event Mr Montsho lodges a protection visa application. On balance, this consideration adds some weight in favour of revocation.
The impediments Mr Montsho is likely to face if he is required to leave Australia and he returns to Botswana weigh in favour of revocation. The weight is reduced as Botswana was Mr Montsho's home until the age of 23, and he and his mother refer to it in those terms. Ms H's evidence Mr Montsho's home is in Australia, with her and the child, does not align with past facts of their separate residential arrangements for most of the time Mr Montsho has been in Australia since arriving in May 2019 (all but several months in 2019), and it is tinged with prospective uncertainty.
Ms H's support for reinstatement of Mr Montsho's visa and the impact on her, as a victim, if that does not occur add weight in favour of revocation.
Weighing these considerations separately and cumulatively it is important to maintain a steady eye on the principles and relevant considerations under the Direction without losing sight of the human dimensions of the decision being made.
Taking all relevant considerations into account, I am satisfied the considerations weighing against revocation are heavier in the balance than those in favour.
The weight of Mr Montsho's ties to Australia, the best interests of his son, the legal consequences of the decision, the impediments he will face if returned to Botswana and the impact on Ms H in favour of revoking the mandatory visa cancellation decision, is not as great as the weight of other relevant considerations. The considerations in respect of protection of the Australian community, Mr Montsho's family violence and the expectations of the Australian community weigh more heavily in the balance. In the circumstances of Mr Montsho's case, the seriousness of his conduct and the harm to individual members of the Australian community, particularly women and female children, should he relapse and re-offend, exceed the thresholds of tolerance in principle 5.2(4) and s 8.1.2(1) of the Direction.
That being so, I am satisfied there is not 'another reason' to revoke the mandatory visa cancellation decision for the purposes of s 501CA(4)(b)(ii) of the Act.
From this it follows, the threshold of satisfaction in s 501CA(4)(b) of the Act is not reached and the power to revoke the mandatory visa cancellation decision is not enlivened.
In these circumstances, the correct decision is to affirm the 31 March 2024 decision under s 501CA(4) of the Act.

Montsho and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1053 (15 May 2024)

At a glance

Court

Decision date

Source

Judgment (144 paragraphs)

Montsho and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1053 (15 May 2024)

Legislation Cited (2)