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:

the person makes representations in accordance with the invitation; and

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

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

1. I am satisfied that the Applicant made the ultimately unsuccessful 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. > > Does the Applicant pass the character test?

2. The Applicant does not pass the character test as a matter of law.[8] It is clear from his criminal history that he has received a sentence of imprisonment of 12 months or more,[9] and thus has a "substantial criminal record"[10] which compels this Tribunal to find that he does not pass the character test. The 12 month threshold is comfortably met as a result of the sentences imposed on the Applicant at a Queensland Magistrates Court in March 2024 which cumulatively totalled 27 months of head custodial time.

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,[11] 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[12] has application.
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.

4. 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.

5. I will now consider 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 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:

a) the nature and seriousness of the non-citizen's conduct to date; and > > b) 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 has an offending history in Australia and New Zealand. In Australia, he has convictions for the commission of 15 offences that were dealt with at five separate sentencing episodes. It is a history that, in terms of sentencing episodes, runs from December 2020 to March 2024, a period of three years and four months. His offending has been punished by a range of sentencing modalities ranging from the imposition of a fine and a 'no conviction recorded' notation to the imposition of respective cumulative head custodial terms of 12 months, nine months and six months. He has committed offences in these realms:
   • contravention of domestic violence order (six offences), respectively convicted in December 2020, March 2022, February 2023, August 2023 and March 2024 (2 convictions);
   • breach of bail (4 offences), respectively convicted in March 2022 (two convictions), February 2023, August 2023;
   • common assault - domestic violence offence (one offence), convicted in February 2023;
   • wilful damage - domestic violence offence (three offences), respectively convicted in February 2023 and March 2024 (two convictions); and
   • assaults occasioning bodily harm - domestic violence offence (one offence), convicted in March 2024.
2. His offending history in New Zealand contains five criminal convictions. For his offending in New Zealand, the Applicant received fines and orders for the performance of community work. His offending in New Zealand comprises the following:
   • male assaults female (manually) (family violence), (one offence), convicted in July 2008;
   • failure to answer District Court bail (family violence), (one offence), convicted in July 2008;
   • fighting in public place, (one offence), convicted in December 2008;
   • wilful damage (family violence), (one offence), convicted in August 2009; and
   • male assaults female (manually) (family violence), (one offence), convicted in August 2009.
3. The Applicant also has a traffic history in New Zealand which comprises the following:
   • person under 20 exceeded breath alcohol limit blood/breath = 342, for which he was convicted and sentenced to pay a fine of $280, Court costs of $130 and he was also disqualified from driving for three months; and
   • drove while disqualified, for which he was convicted and sentenced to pay a fine of $250, Court costs of $130 and was also disqualified from driving for six months.

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

1. Sub-paragraph 8.1.1(1)(a): the chapeau to this sub-paragraph of the Direction stipulates three specific categories of unlawful conduct that is viewed very seriously by the Australian Government and its constituent community. There is a ready concession from the Applicant that his offending has involved crimes of a violent nature against women and that it has also involved the commission of family violence.[13] There is little or nothing to cavil with the proposition this sub-paragraph now compels a finding that such conduct has been very serious.
2. Sub-paragraph 8.1.1(1)(b): the chapeau to this sub-paragraph of the Direction outlines four categories of unlawful conduct viewed seriously by the Australian Government and its constituent community. As best as I understood his criminal history, none of the Applicant's convicted conduct engages any of the four constituent components of this sub-paragraph. He has not unlawfully caused another person to enter into a forced marriage.[14] He has not committed crimes against vulnerable members of the community (such as the elderly or disabled) or against government officials (such as the Police) in the performance of their duties.[15] The conduct for which he has been convicted does not form the basis for a finding that he does not pass an aspect of the character test that is dependent on my opinion.[16] He has voluntarily returned to New Zealand in November last year and did not commit a crime while in immigration detention nor did he attempt any escape from immigration detention.[17] This sub-paragraph 8.1.1(1)(b) should be put to one side and rendered neutral for present purposes.
3. Sub-paragraph 8.1.1(1)(c): in applying this particular sub-paragraph, I am precluded from taking into account sentences imposed on this Applicant for:

(a) any violent offending he may have committed against women or children;[18] > > (b) acts of family violence;[19] and > > (c) any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[20]

4. Prima facie, this sub-paragraph precludes sentences for the Applicant's violent conduct against women as well as family violence conduct from being taken into account for present purposes. However, as has been conceded by the Applicant, sub-paragraph 8.1.1(1)(a)(ii) makes clear that crimes of a violent nature against women are viewed very seriously 'regardless of the sentence imposed.' The preclusion of the sentences the Applicant has received for violent offending against women and for domestic violence will not, in turn, vitiate my earlier finding that the nature of his offending has been very serious.
5. Sub-paragraph 8.1.1(1)(d): the Applicant's history of violent offending has, without question, physically and emotionally traumatised its victims. It has also impacted those victims in a material or financial sense because intertwined in his family violence conduct has also been conduct involving damage and/or destruction of property. These impacts cause this sub-paragraph 8.1.1(d) to strongly militate in favour of a finding that his offending has been very serious.
6. Sub-paragraph 8.1.1(1)(e): as referred to earlier, the Applicant has (in Australia) committed 15 offences that were sentenced at five separate sentencing episodes. This pattern of offending ran across about three years and four months. This equates to the commission of five offences in each year of the offending history. This is plainly frequent offending. The next question posed by this sub-paragraph is whether the pattern of offending betrays any trend of increasing seriousness. I think it does_._ His offending at his first two sentencing hearings was punished by the imposition of fines.
7. The offending dealt with at his third sentencing episode involved conduct of actual violence against a domestic violence victim as well wilful damage to that victim's property. For this conduct he received a 12 month period of probation. At his fifth and final sentencing hearing, the Applicant was sentenced on two counts of wilful damage of a family violence victim's property, two counts of contravening a domestic violence order with circumstances of aggravation and one count of 'assaults occasioning bodily harm - domestic violence.' For these offences, the Applicant received cumulative head custodial terms of 27 months or two years and three months.
8. Custodial terms are viewed as a reflection of the objective seriousness of the offending being punished and are otherwise the last resort of a judicial sentencing officer.[21] I am comfortably satisfied this Applicant's pattern of offending betrays a trend of increasing seriousness. The frequency of the Applicant's offending and its trend of increasing seriousness now cause this sub-paragraph 8.1.1(1)(e) to strongly militate in favour of a finding that the Applicant's unlawful conduct in this country has been very serious. I so find.
9. Sub-paragraph 8.1.1(1)(f): to my mind, the Applicant's offending is redolent of three cumulative effects. First, his offending in the realms of family violence, common assaults and assaults occasioning bodily harm are clearly offences of violence against an individual victim. He will not be heard to cavil with a finding that this conduct did, without question, physically interfere with each victim's personal space and result in at least some measure of physical and emotional trauma.
10. Second, his six breaches of extant family violence orders, his four breaches of bail and his five appearances before judicial sentencing officers has cumulatively consumed more than its fair share of the community's Policing, judicial sentencing and custodial resources. Third, his three convictions for the wilful damage of the property of domestic violence victim has surely caused those victims at least some measure of material or financial loss. Stated cumulatively, this Applicant's conduct can be safely found to have (1) personally impacted victims both physically and psychologically; (2) impacted the community via undue consumption of its policing, judicial sentencing and custodial resources; and (3) personally impacted victims by causing them at least some measure of material or financial loss.
11. Each of these three cumulative effects now cause this sub-paragraph 8.1.1(1)(f) to very strongly militate in favour of a finding that this Applicant's conduct should now be found to be very serious. I so find.
12. Sub-paragraph 8.1.1(1)(g): the material does not contain anything referable to the Applicant having provided false or misleading information to the Respondent's Department. I have earlier referred to his movements in and out of Australia. He will have been compelled to fill out at a passenger information card upon re-entry. The critical point is that all of the Applicant's departures from and returns to Australia pre-date his offending in Australia.
13. I will not delve into the realm of speculation about whether those incoming passenger cards compelled him to disclose his convictions in New Zealand. In any event, this is not something agitated by the Respondent. The safest course is to put this sub-paragraph to one side and render it neutral for present purposes.
14. Sub-paragraph 8.1.1(1)(h): the Applicant has not re-offended following receipt of any formal or other written warning about the impact of further offending on his visa status to remain here. This sub-paragraph can be rendered neutral for present purposes.
15. Sub-paragraph 8.1.1(1)(i): as outlined earlier, the Applicant has committed offences in new Zealand before initially arriving in this country. He was convicted for five criminal offences and two traffic offences. While the traffic history does not seem to have perpetuated in this country, the offending giving rise to four out five of his convictions in New Zealand was repeated in Australia. In New Zealand, the Applicant was twice convicted of domestically violent conduct against a woman, once convicted of breaching bail and once convicted of wilful damage in the context of domestic violence offending. Each of these offences is classified as an offence in Australia. It follows that this sub-paragraph 8.1.1(i) now volubly speaks to the very serious nature of the Applicant's conduct in this country. I so find.
16. I have had regard to the relevant components of paragraph 8.1.1(1) of the Direction in assessing the nature and seriousness of the Applicant's conduct. The Application of those relevant sub-paragraphs to the circumstances of that conduct now safely leads me to a finding that this Applicant's unlawful conduct in this country should be characterised as "very serious". I so find.

The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

1. Sub-paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
2. Sub-paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:

(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

1. information and evidence on the risk of the non-citizen re-offending; and
2. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence .....; and

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

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

1. The Applicant's domestically violent conduct has been persistently abhorrent. He has physically and psychologically harmed victims. He has caused them material harm by wilfully damaging their property while so offending. His conduct has consumed more than its fair share of the community's Policing, judicial sentencing and custodial resources. The Applicant will not be heard to cavil with the proposition and finding that a future victim of similar offending would likely suffer similar harm.
2. My finding will be that if the Applicant were to re-offend, the resulting harm would range from psychological, physical and financial harm. It is not beyond the realms of possibility for such conduct to result in a catastrophic outcome. I have no hesitation in finding, pursuant to sub-paragraph 8.1.2(1) of the Direction, that the harm resulting from any recommission of his past unlawful conduct is so serious that any risk of its recommission should now be found to be absolutely unacceptable.

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

1. In an earlier submission prepared on his behalf, the Applicant's recidivist risk was expressed in these terms:

[The Applicant's] risk of recidivism should be evaluated in consideration of his mental health history, together with his aberrant Index Offending and relatively limited criminal history in an otherwise reasonably law-abiding life, his contributions to Australia's economy and community, and his rehabilitation efforts. Therefore, the cumulative weight of his protective factors suggests [the Applicant] has advanced towards lowering his risk of recidivism, including engaging in rehabilitation and harnessing the support of his church leadership and congregation. The strength of [the Applicant's wife][22] and [the Applicant's] knowledge of her intolerance to any future offending bears relevance and weight in this case, because [Ms AJT] is not a partner who might be vulnerable to further, repeated domestic violence. [Ms AJT] has been an integral support and part to [the Applicant's] rehabilitation, which in itself and of itself reduces his risk of recidivism."[23]

1. This earlier submission culminates in a position that "...the general assessment points to a potential finding that [the Applicant's] level of recidivist risk is moderately low,..." [24] [My emphasis]

1. In an earlier statement, the Applicant acknowledged responsibility for his offending. He also referred to his rehabilitative efforts and intentions. Given the parties' consent for this decision to be drafted 'on the papers' and without a substantive hearing, it is worth quoting the following portion from the Applicant's statement in full:

"I have taken full responsibility for my actions.

I am genuinely remorseful and am committed to work to engage in rehabilitation and learn and apply what I have learned to break patterns of violence.

I know that apologies aren't enough, and I need to ensure that I do not reoffend.

I have stopped drinking alcohol on a regular basis after I was arrested in February

I realise that I have inflicted harm on my past partners and now [Ms AJT] as well as our children, through behaviour.

I have taken on a father-figure role for my wife's children and through my behaviour have let them down, as well as my two biological children.

I acknowledge past unhealthy relationship patterns and I am now fully committed to [Ms AJT], recognising past behaviours as unacceptable. I feel guilt over letting [Ms AJT] down both by the offending and now by being in custody and leaving her to care for the children and business alone.

Whilst I am able to identify now the factors that led to me to developing alcohol

dependence and engaging in the offending, I want to make it clear that I don't 'blame' other factors for my offending. I believe that I have developed a reasonable degree of insight.

Whilst incarcerated and in immigration detention I have maintained good behaviour in adhering to rules, showing respect to staff and other detainees, and avoiding disciplinary action. I have engaged in structured activities, including rehabilitation and vocational programs, and demonstrate compliance with institutional expectations. This is reflected in my low-risk assessment by the detention centre where I was moved from 'Moreton' section (high risk) to general population (low risk) within the detention centre system.

Whist in prison I had participated in work programs, such as the prison laundry, and now in detention I am dedicating my time to online courses. I am committed to self-improvement and trying to maintain a positive outlook, focusing on productive activities and personal development. Specifically, I have completed brief education courses on domestic violence, anger management, breaking cycles of violence and parenting skills.

I have demonstrated a growing awareness of the underlying factors contributing to my offending and emotional dysregulation. Participation in the anger management course has been particularly impactful. Through this program, I came to understand the significant impact my behaviour had on others, and this realisation was not only confronting but deeply distressing for me. I feel traumatised upon recognising the harm I have caused. I had previously been blind to the consequences of my actions and the way my mood swings and attitude affected those around me.

I would previously lash out when I felt disrespected, and previously thought I had a

right to respond with aggression or hostility. I now understand that these beliefs were wrong and harmful and led to my offending.

The rehabilitation programs I have participated in have challenged and helped reshape my thinking.

I have gained insight into the fact that feeling disrespected does not justify anger, and my past actions were out of proportion and unacceptable.

I have also developed a clearer understanding of the extent of my alcohol dependence and how this significantly influenced my behaviours and decisions. Where previously I failed to grasp the seriousness of my substance use, I now recognise how wrong I was and how integral this issue is to my past behaviour.

In custody, I engaged with the mental health team and seen a psychologist on two

occasions since being in detention. I recently commenced a course of antidepressant medication, which has helped me feel calmer and able to think more clearly. Over the past month, I haves noticed an improvement in my mood and ability to regulate my thoughts and emotions.

I have also come to understand that I have been overly emotionally dependent on my wife and now recognise the importance of developing my own capacity to manage distress and cope independently.

I have a strong desire to continue psychological support in the community and I am motivated to engage in further therapeutic and rehabilitation programs upon release.

I am committed to self-awareness and change." [25]

1. The Applicant has engaged with rehabilitation. The material demonstrates he has completed the following courses and sessions:
   • Drugs and Alcohol Abuse 101 (on 23 May 2024);
   • Anger Management Techniques (on 11 June 2024);
   • Be in Control; Psychology of Self-Control and Core Impulsivity Crash Course (26 August 2024);
   • Impulsive, Destructive and Explosive Anger Management and Psychology of Self-Control - Core impulsivity crash course (on 19 September 2024);
   • IHMS[26] Smart Recovery program - five sessions completed (on 15 August 2024);
   • Holistic residential mental health and AOD support and treatment with "The Banyans Healthcare" (in February 2024) the cost of which the Applicant met by successfully applying for release of $20,000 from his preserved superannuation;
   • Alcoholics Anonymous.
2. The Applicant's engagement with The Banyans Healthcare and Alcoholics Anonymous was facilitated by a direction made by the learned sentencing Magistrate who dealt with him in March 2024. In essence, the learned Magistrate ordered that after the Applicant's release on parole, he was to forthwith engage with these two rehabilitative options. The intake letter from The Banyans Healthcare says: "If requested, an attendance and full psychiatric report can be provided at the conclusion of the eight-week program."[27] As best as I understood the material, no such report was produced by that facility.

1. In the abovementioned earlier submission prepared on behalf of the Applicant, the specifically nominated protective factors were defined thus: "[the Applicant] has the assistance of a determined and strong partner, [Ms AJT], his church and various other close family members which underscores their unwavering support and commitment to his well-being. This strong familial bond is a significant factor and increases the likelihood of successful rehabilitation."[28]

1. While the Applicant has participated in a range of rehabilitative efforts, there is a concerning lack of independent clinical opinion and evaluation about (1) the factors predisposing the Applicant to have been so incapable of regulating his behaviour and (2) the extent to which those symptomatic factors are now under any form of remedial management and control. The absence of such evidence is all the more glaring and concerning for a couple of reasons. First, the Applicant has spoken of a number of factors that have dysregulated his behaviour such as (1) being raised in an unstable and violent household, (2) childhood sexual abuse perpetrated on him, (3) the sexual assault of his mother by a paternal uncle, (4) binge drinking as a teenager and young adult; and (5) socialising in an environment where emotional expression was discouraged.
2. The second reason the absence of independent clinical opinion is concerning is because there is correspondence before the Tribunal from a clinician attached to 'The Banyans Healthcare' who wrote the following in support of the Applicant's intake into this regime of treatment:

"[The Applicant] is suffering from long standing psychiatric diagnoses of:

(2) Symptoms of Major Depressive Disorder, secondary to above

(3) Alcohol Use Disorder, as a means of coping/self-medication for all of the above.

Significant risk of mental state deterioration, continued substance use, and long-term loss of level of functioning in family and relationships and work, if unable to access urgent holistic residential mental health and AOD support and treatment."[29]

1. The Applicant claims that he stopped consuming alcohol on any regular basis after February 2024. This claim may have had some traction in the period leading up to and post-dating his sentencing hearing in March 2024 where he received 27 months of head custodial time for offending described by the learned sentencing Magistrate in these terms:

"It is absolutely appalling behaviour by you where you have an issue with alcohol,

and it seems every time you drink alcohol or go out drinking, you become a

monster, quite frankly. That is the better - that is the only word that - to describe your behaviour. You are controlling. You are coercively controlling."[30]

1. If granted a visa to return to the Australian community, the Applicant will again have free access to alcohol and will not be subject to any restriction in this regard. His capacity to refrain from abusing alcohol and/or to even moderately consume alcohol - even on a non-regular basis - and to keep his behaviour under some form of regulated control, is something that remains to be tested in the community.
2. The Respondent describes the Applicant's pattern of family violence behaviour, particularly in recent years, as "entrenched."[31] I agree with that submission because there is no other way to read and understand his pattern of offending in this country between December 2020 and March 2024. His capacity to refrain from imposing a violent solution to a situation of domestic trouble or impasse is also something that remains to be tested in the community. His claimed causative factors behind his offending comprising alcohol abuse, childhood trauma and emotional mismanagement have not 'gone away' and they will remain constant elements in his life if now returned to the Australian community.
3. His offending history demonstrates a concerning pattern of bluntly refusing to follow the dictates of lawful authority whether it be in the form of grant of bail or a requirement that he meet the terms of a domestic violence order. So dysregulated was his past behaviour that he breached bail in this country on at least four occasions and he breached a domestic violence order on at least six occasions. He has also breached a bail order in New Zealand and has also driven a motor vehicle while disqualified and has driven while under the influence of alcohol in that country. His disregard for lawful authority does not bode well for his requested return to the Australian community in terms of him now being able to strictly follow legal obligations applying to him.
4. In terms of his claimed protective factors, it is not unreasonable or unsafe to find that most, if not all, of those factors were around the Applicant at the time he so very seriously offended. I have significant misgivings about the extent to which (1) a domestic partner; (2) his claimed allegiance to a church; and (3) family ties would now have any greater preventative impact on factors pre-disposing him to offend than the miniscule or no effect these factors had in the past.

1. The Respondent contends the Applicant "...poses at least a medium risk of reoffending."[32] It is contended on behalf of the Applicant that his level of recidivist risk is "moderately low."[33] It is unsafe or illogical to conclude and find that the Applicant's engagement with rehabilitation is in its relatively formative stages and otherwise represents a work in progress. He cannot deny he has some way to go in establishing his credentials as a rehabilitated domestic violence offender.
2. Given the absence of any independent clinical evidence on the specific question of recidivist risk, but given also the fact that the Applicant has at least to some measure participated in the rehabilitative process, the safest course is to arrive at a recidivist risk finding of moderate to medium. For clarity (and without the benefit of independent clinical opinion), if recidivist risk for present purposes was to be assessed on a theoretical scale of 1-10, my finding of moderate to medium should be understood as placing the Applicant in the zone of 4-6 on that theoretical scale. To this finding, I will add a further element such that were the Applicant to repeat his past offending, the impact on a victim(s) would be so serious that any such risk should now be found to be unacceptable.[34] I so find.

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:

(a) I have found that the nature and seriousness of the totality of the Applicant's conduct to date has been very serious; > > (b) I have found that were this Applicant to re-commit his domestically violent offending, the resulting harm would range from psychological, physical and financial harm. It is not beyond the realms of possibility for such conduct to result in a catastrophic outcome. I have no hesitation in finding, pursuant to sub-paragraph 8.1.2(1) of the Direction, that the harm resulting from any recommission of his past unlawful conduct is so serious that any risk of its recommission should now be found to be absolutely unacceptable; and > > (c) the totality of the evidence has lead me to the following recidivist risk finding of moderate to medium in terms of this Applicant re-committing his past conduct.

2. 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).

(2) 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.

(3) 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:

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

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

1. Two fundamental questions are compelled by this Paragraph 8.2 of the Direction: (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." 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." I am satisfied that the victims of the Applicant's conduct for which he has been sentenced were members of the Applicant's family for present purposes.

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

1. A summary of the Applicant's domestically violent behaviour giving rise to his convictions can be found in the Respondent's Statement of Facts, Issues and Contentions ('SFIC') which records the following conduct both here and in New Zealand:

(c) breaking the victim's designer glasses and jewellery;

(d) hitting the victim in the face, causing her lip to bleed;

(f) ripping off a screen door from the victim's residence;

(h) grabbing the victim by the throat, slapping her across the face and punching her in the lower leg; and

(i) NZ offences for Male Assaults Female (Manually) (Family Violence) and Wilful Damage (Family Violence)."[35]

1. As mentioned earlier, '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'. 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. The Applicant's domestically violent conduct was committed while he was in a domestic relationship with the subject victims at the relevant time. I am comfortably satisfied that his conduct (in Australia) meets the threshold of 'conduct comprising violent, threatening or other behaviour' that caused each subject partner / wife to be fearful. I will find this Applicant's family violence conduct was 'violent, threatening...that caused [the victims] to be fearful.' I am satisfied that both his convicted conduct does comprise domestic violence for present purposes.

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

1. The Applicant's family violence conduct was the subject of at least 11 convictions respectively imposed on him in December 2020 (x1), March 2022 (x1), February 2023 (x3), August 2023 (x1) and March 2024 (x5). These charges were clearly proffered as domestic violence-oriented charges and he has also been sentenced for repeatedly breaching extant family violence orders. This conduct must now be found to safely fall within the auspices of paragraph 8.2(2)(a) comprising conduct culminating in the Applicant having '...been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence.' [My emphasis].
2. I will therefore find that (1) the Applicant's conduct towards his partner / wife comprises family violence against that victim(s); 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. The Applicant will not be heard to say his domestically violent conduct has not been frequent. It clearly has been. Likewise, he will not be heard to say that his domestically violent conduct sentenced in March 2024 was not of a greater level of seriousness than his earlier conduct. The frequency and increasing seriousness of his family violence conduct both point to the very serious overall nature of his conduct in this regard.
3. Paragraph 8.2(3)(b): requires consideration of the cumulative effect of repeated acts of family violence. The Applicant's family violence has physically and psychologically traumatised its victims. It has also resulted in material loss to those victims. There is little or nothing to cavil with these cumulative effects of the Applicant's domestically violent conduct which militate in favour of a finding that his conduct in this regard has been very serious.
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 compels three enquiries:

(i) 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. In an earlier statement, the Applicant says: "I have taken full responsibilty for my actions. I am genuinely remorseful and am committed to work to engage in rehabilitation and learn and apply what I have learned to break patterns of violence."[36] I will cautiously note the Applicant has accepted at least some measure of responsibility for his family violence related conduct; > > (ii) 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. In the abovementioned earlier statement, the Applicant says "I realise that I have inflicted harm on my past partners and now [Ms AJT] as well as our children..."[37] He says "I acknowledge past unhealthy relationship patterns and I am now fully committed to [Ms AJT], recognising past behaviours as unacceptable."[38] I cautiously this Applicant's claimed level of comprehension about the impact of his behaviour on his victims and children who were drawn into its orbit; and > > (iii) 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. In his earlier statement, the Applicant talks about having demonstrated a growing awareness of the underlying factors contributing to his offending and emotional dysregulation. There is no doubt he has involved himself in a pattern of rehabilitation. But as I have earlier found, this rehabilitation is in its formative stages and is otherwise a work in progress. His capacity to maintain a pattern of rehabilitation and to otherwise fulsomely demonstrate a capacity to moderate and regulate his conduct remains to be tested in the community.

5. 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'. The material contains at least two documents titled "PROTECTION ORDER VARIED ORDER." The first of them is dated 27 July 2021[39] and the second, 4 July 2023.[40] Each of those variation orders included an annexure titled "EXPLANATION OF DOMESTIC VIOLENCE ORDER - FOR RESPONDENT." In both of these variation orders, the Applicant was, of course, the named respondent.
6. In both of the "EXPLANATION OF DOMESTIC VIOLENCE ORDER" documents, there appears the following warning about contravention of these orders. It is worded thus:

"CONTRAVENTION OF ORDER: If you contravene any conditions of this order, you commit an offence against the Act, and you may receive a penalty of up to 3 years imprisonment for the first offence in a 5 year period and 5 years imprisonment for subsequent offences within a 5 year period.

NOTE: If this order is contravened in another State or Territory of Australia, you may be subject to penalties imposed in that State or Territory."[41]

1. Despite the warnings about breaching these Domestic Violence Orders being explained to him, the Applicant nevertheless proceeded to commit further acts of domestic violence resulting in repeated breaches and a multiplicity of convictions. The Applicant's continued domestic violence offending after receiving these warnings does him no favours for present purposes. It only adds to the very serious nature of his domestically violent conduct and it also adds to the level of adverse weight attributable to this Primary Consideration 2.

1. Taking into account my findings about the various components of paragraph 8.2(3)(a)-(d) referable to the Applicant's domestic and family violence conduct, 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

(ii) 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): Assessment of ties to immediate family members

1. This paragraph looks at the strength, nature and duration of the extent of any ties the Applicant may have with immediate family members in Australia. The limiting proviso on this inquiry is that these immediate family members must be Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely.
2. In the Respondent's SFIC, the Applicant's immediate family members in Australia comprise his wife, Ms AJT, his 10 step-children (who are Ms AJT's children from previous relationships), his step-granddaughter, two brothers in-law, a sister in-law and a father in-law. The Applicant also has two biological children from previous relationships who both reside in New Zealand but who plan to return to Australia if the Applicant's visa status is restored to him facilitating his return. In her statement, Ms AJT says:

"I am living in pain, my fluid retention is severe and medication isn't working. I take daily injections for my thyroid cancer, I am on daily hydrocortisone sterioids [sic] or my organs shut down due to my addisons disease. I have struggled immensely since my husband was taken away. I am in excruciating pain, I am missing Dr appointments as I don't have time to do them our business is 24/7 and I am on call non-stop. My depression is really bad at a point a struggled to go to work for the first 2 wks we nearly lost our car and our home I was in arrears in rent because I just didn't know how to function without my husband."[42]

1. At least two of the children appear to be facing significant health challenges. Further in her statement, Ms AJT says:

"Our other 11yr old our little [name redacted] who suffers with Cystic fibrosis has just come off full-time oxygen tanks however still requires them when he is unwell. He is on a feeding tube and he has apnea's often and can go blue. He has been resuscitated often at home and in school and needs ft care. I am on carers for him and his 12yr old brother who has had brain surgery and suffers from craniosynostosis and epilepsy and has violent tonic clonic seizures. Our 11 yr old has to have daily chest therapy and suctioning and is often hooked up to a machine he must sleep on a monitor incase he stops breathing so he sleeps with his oldest brother or sister when i have to work. He gets sick often and regularly has icu admissions. Our 12 yr old has had his skull cut open so his face from ear to ear and his face pulled down and eye sockets, nose and skull reconstructed for brain surgery to take the brain pressure away and to give the brain space to grow. He often gets debilitating migraines or has seizures. His seizures are violent and he has permanently lost part of his tongue due to this. These little boys require full-time care and must sleep with their siblings if im not home I dont often take night shifts as I too have my own serious medical conditions but since [the Applicant] has been gone I have had to."[43]

"[The Applicant] had begun building my trust and respect again and the children's. He was present in every aspect of the word. He learned to deal with life challengers [sic] in other ways such as if we ever had a disagreement or he was frustrated with something the old [the Applicant] would get angry and make a sense [sic] now he would grab his headphones and come give me a kiss and say I love you and go for a walk to walk off how he felt or he would start a soccer game with the kids and tell me he just needed time out for a second, he learned what his own coping mechanisms were and when to engage it he was learning more about himself and it was something he had to do all on his own."[44]

1. I will find that the Applicant's ties with the agreed list of immediate family members militate in favour 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 the people representing these immediate ties being Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely. To be clear, I cannot take the Applicant's two biological children into account for present purposes because they are resident in New Zealand at the time of this decision.

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. In a submission previously prepared on his behalf, the Applicant identified extended familial links to six uncles/aunts, 14 nieces/nephews and 12 cousins in Australia. All of these people are said to be ordinarily resident in Australia and permanent residents of this country. It is also said that the Applicant has 'meaningful relationships' with each of these extended family members.[45]
2. Despite there being no statements or letters of support by extended family members, I will cautiously find that the Applicant's ties with these extended family members do militate in favour of a moderate level of weight in his favour pursuant to this Primary Consideration 3. This finding is predicated on the limiting proviso that each of the people representing these extended family ties being Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely.
3. In terms of social ties, the material contains letters of support from the following people:
   • Ms TL: is an employee of the Applicant's and Ms AJT's security business. She speaks positively of the Applicant and describes him as "...a family man and is always where his wife is ensuring she is always safe...He is a great asset to this marvellous country we get to call home..."[46];
   • Mr YA: is another employee of the Applicant and Ms AJT. He describes the Applicant as "...more than just a boss, he was a mentor, a friend, and someone who truly cared about the wellbeing of those around him."[47];
   • Mr KS: is a long term friend of the Applicant and describes him as "...a man of integrity, passionate about his work and would always help me to further my progress in my career in a professional manner."[48];
   • Mr ZW: is also employed by the Applicant's and Ms AJT's security company. He describes the Applicant as "...a great educator and I think under his careful watch, that I have been able to learn and grow in my career."[49];
   • Mr RTT: is a member of the Applicant's church. He describes the Applicant as "...genuine, ambitious, loving and caring and loves his wife and kids more than anything and will do anything for them."[50]; and
   • Mr ED: is an acquaintance/mentee figure of the Applicant, who has known him for two-three years. He says "I know people do wrong and I could've been one of those people but with his encouragement and just his real-life stories, I was able to connect and felt he really understood me."[51]
4. I will cautiously find that the Applicant's ties with these social contacts do militate in favour of a moderate level of weight in his favour pursuant to this Primary Consideration 3. This finding is predicated on the limiting proviso that each of the people representing these social contacts 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:
   • whether the Applicant arrived here as a young child? [52] The Applicant arrived in Australia in 2012 when he was 24 years old. I will find that the Applicant did not arrive here as a young child. This component of paragraph 8.3(2) does not augment the weight allocable to his ties to this country;
   • whether the Applicant began offending soon after arriving here? [53] The Applicant arrived here as a 24 year old in 2012. He recorded his first criminal conviction in Australia in December 2020, which is some eight years after his arrival. I will find that he did not begin offending soon after arriving here. Thus, the weight allocable to the Applicant for this Primary Consideration 3 cannot be impugned on the basis of him offending soon after arriving here;
   • the time the Applicant has spent contributing positively to the Australian community during his time here.[54] While in this country, he has a solid work history, primarily in the field of transmission linesman/communications rigger. More recently (from 2022 to 2024), he has operated (with Ms AJT), a security business.[55] The material contains a reference to at least some measure of community involvement as a volunteer at his local church and school.[56] I will find the Applicant has a solid work history in Australia and that his involvement in lawful remunerative employment and in the operation of his own business, materially contributed to this country via the taxation levied against his gross earnings. I will also find he has made a modest level of community contributions. On the basis of his solid work history and modest community contributions, I will find that this component of paragraph 8.3(2) of the Direction affords a moderately heavy level of weight in the Applicant's favour towards a finding about the strength of his ties to Australia.
2. Accordingly, I am of the view (and I find) based on my analysis of the evidence around subparagraph 8.3(2)(a) of the Direction that:
   • sub-paragraph 8.3(2)(a): does not augment the weight allocable to the Applicant for the purposes of this Primary Consideration 3 because he did not arrive in Australia as a young child;
   • sub-paragraph 8.3(2)(a)(i): does not impugn the weight allocable to the Applicant for the purposes of this Primary Consideration 3 because he did not begin offending soon after arriving in Australia;
   • sub-paragraph 8.3(2)(a)(ii): does assist the Applicant because of his solid employment and modest community contributions to Australia.
3. Therefore, only the specific sub-paragraphs 8.3(2)(a)(i) (did begin offending soon after arriving here) and 8.3(2)(a)(ii) (solid employment and modest community contributions to Australia) serve 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 and extended family members in Australia and his social ties 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: 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.[57] The Direction further requires that the best interests of each child must be considered individually if there is more than one minor child identified.
2. In assessing the best interests of each child/ren, a decision-maker is required to take into account:[58]

(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 relevant minor children in Australia

1. The parties appear to be of one mind[59] there are seven relevant 'minor' children for the purposes of this Primary Consideration 4. An eighth child turned 18 in October last year.[60] The seven relevant minor children are:

1. With reference to the above seven minor children, the Applicant says the following:

All my step-children I consider as my own, as if they were my biological children.

Likewise, they call me "dad". I am the children's only father figure as their biological fathers are not active or participatory in their lives to any degree.

I have helped [Ms AJT] raise these children for as long as I've been in a relationship with [Ms AJT], up until I was imprisoned. Notably I've been involved in [Child ID's] live [sic] since he was 1.5 years old and still in nappies.

I share a special bond with all of these children. Ways in which I've been active in our children's lives:

c. assisting with all the swimming lessons - I even received a certificate of appreciation and a volunteers day breakfast;'

e. helping three of our teens to learn to drive a car;

f. encouraging the teens to bring their friends to come hang out at our home and talks to each and every one of the kids that walk through our door.

Prior to being incarcerated I was a stay at home dad who worked remotely. I was a

constant for these children, who have varying degrees of special needs such as school and behavioural difficulties including mental health and "cutting" ([Child KW], 16 years old); cystic fibrosis, daily chest therapy and suctioning, requires a sleep machine, regularly gets sick and hospitalisations ([Child EM], 11), craniosynostosis and epilepsy and has violent tonic clonic seizures, recent brain surgery, regular migraines, ([Child KS], 12 years old). Previously [Ms AJT] would stay with [Child KS] at night to monitor seizures, but in my absence she has to work nightshifts and the children are left in the care of our older children - not by choice, but by financial necessity as [Ms AJT] is the sole income earner in my absence."[61]

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

1. Sub-paragraph 8.4(a): there is clearly a palpable nature and lengthy durability in the Applicant's relationship with these minor children. The level of care compelled by, in particular, the infirm children as well as the very serious health challenge confronting Ms AJT, has meant the Applicant has had to 'step-up' his parental role. Granted, there has been an absence of the Applicant from the lives of these children for several months due to his voluntary removal to New Zealand. This sub-paragraph militates in favour of the allocation of a heavy level of weight to the best interests of these minor children
2. Sub-paragraph 8.4(b): it is very likely the Applicant will - indeed will have to - play a positive parental role in the future lives of these children. There is ample time for him to do so when one looks at the cumulative periods of time until each of them attains the age of 18 years. It is not immediately apparent to me about whether any domestic violence or other order limits or minimises the Applicant's time with the children. To my mind, it would be a very harsh decision-maker who would refuse an application for the variation of any such order to facilitate the Applicant's personal contact with the children in circumstances where (1) at least two of the children are quite ill; and (2) Ms AJT is also quite ill which impacts her capacity to care for the children. This sub-paragraph militates in favour of the allocation of a heavy level of weight to the best interests of these minor children.
3. Sub-paragraph 8.4(c): as best as I understood the material, it is silent about whether any of the children have been impacted by the Applicant's prior offending and/or whether they would be impacted in the event he were to recommit some/all of his past conduct. I will put this sub-paragraph to one side and render it neutral for present purposes.
4. Sub-paragraph 8.4(d): the Applicant is doubtless communicating with the children from children by non-in-person means. Of course, this is not the same thing as in-person contact. This case is unique because at least two of the children and their mother have significant health issues and in terms of caring for the children, the Applicant's physical presence would be far more effective in providing that care than whatever could be achieved by him communicating with the children telephonically or electronically. I will not allow the sub-paragraph to work against the Applicant and will put it to one side and render it neutral for present purposes.
5. Sub-paragraph 8.4(e): clearly, Ms AJT currently provides the primary parental role in relation to these children. But she is struggling to do so for three principal reasons: (1) she is very unwell which impacts her parenting capacity; (2) two of the children are seriously unwell which raises the level of parental care they require; and (3) she has to devote not-insignificant time to the operation of the security business she owns with the Applicant. I will not allow the sub-paragraph to work against the Applicant and will put it to one side and render it neutral for present purposes.
6. Sub-paragraph 8.4(f): I am not aware of the material containing any direct reference to any of the children actually expressing a view but I will take Ms AJT's evidence at face value. There is no question the children would immediately welcome the return of the Applicant as a physical presence in their lives. This sub-paragraph militates in favour of the allocation of a heavy level of weight to the best interests of these minor children.
7. Sub-paragraph 8.4(g) and (h): there is no evidence that any of the children have suffered any of the adverse elements contained in these sub-paragraphs, both of which can be put to one side and rendered neutral for present purposes.

Allocation of weight to the best interests of the second group of the five remaining relevant minor-aged children

1. If the Applicant were to permanently remain in New Zealand as a result of an adverse outcome in the instant matter, I am of the view that the factors appearing at paragraph 8.4(4) of the Direction should attract the allocation of a heavy level of weight to the best interests of this group of seven minor children.

Identification of further children - biological children of the Applicant in New Zealand

1. As mentioned earlier, the Applicant has two biological children in New Zealand - a son, Child C, (DOB: September 2013) and a daughter, Child K, (DOB: September 2012) who are not 'minor children in Australia affected by [this] decision.' [My emphasis]. In relation to these children, the Applicant says:

"I have two children from a previous relationship - [Child C] and Child [K]. Both children are New Zealand citizens and are currently in New Zealand, living with their maternal grandparents. Their mother lives in the United States of America. I previously sent my two children back to New Zealand to stay with my sister, only one week before I was arrested, initially going to attend a family funeral and intended to be temporary. They are unable to return to Australia to [Ms AJT's] care because of the existing pressure and demands on Ms AJT with me being in custody. They will return to Australia if/when I am released to the community."[62]

1. The Respondent contends that although these two biological children "...are presently not in Australia and do not fall strictly to be considered as part of this Primary Consideration. Nonetheless, the Tribunal ought to separately consider the Applicant's representations about Child C and Child K..."[63] While I respectfully commend the Respondent's sense of fairness in making this submission, I am hard-pressed to form a rational basis for taking the best interests of these children into account. This is so for three reasons. First, Child C and Child K are not minor children "in Australia [who would be] affected by the decision." They are presently in New Zealand. Second, the possibility of these children ever returning to Australia is expressed as a contingency. The Applicant confirms they will only return here if and when he is returned to the Australian community.
2. Third, if the Applicant succeeds in the instant application, the children will return to Australia with him. He will not leave them in New Zealand. Therefore in either scenario these two children will be with the Applicant: either in Australia if he succeeds in this Application or in New Zealand if he does not succeed. For these reasons, I conclude the best interests of the two biological children in New Zealand cannot be taken into account for present purposes.

1. Having regard to the weight I have allocated to the best interests of the group of seven minor children in Australia, I will therefore find this Primary Consideration 4 is of overall heavy weight in favour of this Tribunal revoking the decision under review.

PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

The normative expectation expressed in the Direction

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.[64] 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.'[65]

2. With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:

"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."

Has the Applicant breached the normative expectation?

1. 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 some very serious breaches of the Australian criminal law. Therefore, the Australian community, 'as a norm', expects the Australian Government not to allow this Applicant to remain in Australia.

Is the Applicant's conduct alone sufficient to breach the normative expectation?

1. 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:[66]

(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

1. The has two convictions referable to sub-paragraphs 8.5(2)(a) of the Direction (acts of family violence) and sub-paragraph 8.5(2)(c) of the Direction (the commission of a serious crime against a woman. His convictions engaging the auspices of these two sub-paragraphs now augment a finding that the totality of this Applicant's unlawful conduct in this country has been of sufficient seriousness such that the Australian community would expect the Australian Government to refuse to set aside the mandatory cancellation of his visa.

Are there any factors modifying the Australian community's expectations?

1. 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)).

2. In relation to sub-paragraph (a) of the immediately preceding paragraph [110], the term 'limited stay visa' is not defined in the Act. In this case, the Applicant held a Class TY Subclass 444 Special Category (Temporary) visa until it was mandatorily cancelled on

21 November 2024. This visa permits a citizen of New Zealand to remain in Australia indefinitely.[67] As the Visa permitted the Applicant to remain in Australia without any limit on the duration of his stay, that Visa cannot be classified as a limited stay visa.[68] Therefore, this sub-paragraph (a) is not applicable to the Applicant. 3. In relation to sub-paragraph (b) of the abovementioned paragraph [110], the Applicant has spent about 12 years in Australia since initially arriving here aged 24 years. He has spent approximately 32 percent of his life in this country and is currently aged 37 years. He has a solid work history in Australia and a modest level of community contributions. He has materially supported and parented a not-insignificant number of step-children[69] in this country and has made significant employment contributions to it since 2012. 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. 4. In relation to sub-paragraph (c) of the abovementioned paragraph of [110], I repeat the Applicant initially arrived in Australia as a 24-year-old some 13-14 years ago. He has spent about 32 percent of his life in Australia and he did not come here at a young age. This means the Australian community's level of tolerance of criminal or other serious conduct by this Applicant is not raised. 5. In relation to sub-paragraph (d) of the abovementioned paragraph [110], I am of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant re-committing his very serious domestically violent offending of the same type of which he was convicted in February 2023, August 2023 and March 2024 and (on the other hand), whatever countervailing considerations may now work in his favour, is not necessarily a principle referable to the community's expectations for present purposes. This is because I am of the view that his very serious domestically violent conduct has been of such a significantly serious magnitude as to now dispel any applicable countervailing considerations working in his favour. 6. In relation to sub-paragraph (e) of the abovementioned paragraph [110], I am of the view that the Applicant's very serious conduct convicted, respectively, in February 2023, August 2023 and March 2024, is so serious such as to displace any strong countervailing considerations militating in favour of a positive visa outcome. I have found that in terms of the here and now, the Applicant represents a recidivist risk defined earlier in these Reasons.[70] I have also found that if he were to re-offend, the resulting harm to the Australian community renders such a risk unacceptable.

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. In AJN23 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCAFC 103 ('AJN23'), the Full Court held that consideration of the legal consequences for present purposes requires consideration of the 'direct and immediate statutory consequences' of this decision [my emphasis].[71] The Applicant does not agitate any claim about fearing harm upon a return to New Zealand such as to now engage whatever non-refoulement obligation Australia may owe him. It would be very difficult for him credibly propound such a claim in circumstances where he voluntarily removed himself to New Zealand in November of last year.
2. To whatever extent an adverse outcome for the Applicant in the instant matter would impact members of his family (and any social ties), such a contention must, on the authority of AJN23, be rejected because the impact of the Applicant being compelled to remain in New Zealand on members of his immediate and extended family (as well as any of his social ties here) falls for consideration under Primary Consideration 3 (paragraph 8.3 of the Direction). Further, if a similar argument were to be made about the impact of the Applicant's permanent absence from Australia upon relevant minor children connected to him, that specific question falls for consideration under Primary Consideration 4 (paragraph 8.4 of the Direction). It would, to my mind, be double-counting to again consider the best interests of those relevant minor children in both Primary Consideration 4 and as a 'legal consequence' of an adverse outcome for the Applicant.
3. A first statutory consequence in the event this Tribunal were to affirm the decision under review, would normally result in the Applicant becoming liable for removal from Australia as an unlawful non-citizen as soon as practicable.[72] However, he voluntarily removed himself to New Zealand in November 2025. Second, pending his removal from Australia as soon as practicable, he may well have spent a period of time in immigration detention.[73] But again, he voluntarily returned to New Zealand in November 2025. Third, if the Applicant fails in the instant proceeding, he will not be able to satisfy the Special Return Criteria pursuant to regulation 5001(c) to Schedule 5 of the Migration Regulations. Satisfying those criteria is a precursory requirement for the grant of most visas. The consequence will be the Applicant's permanent exclusion from Australia. Of these three statutory consequences I have identified, only the third one could have any realistic application to the instant facts.
4. However, such permanent exclusion is not contemplated in paragraph 9.1 of the Direction and thus I cannot take it into account in determining this application. Be that as it may, I will cautiously accept that the third abovementioned statutory legal consequence will result from an adverse outcome for the Applicant. I will find that only this legal (statutory) consequence attracts the allocation of moderate weight to this Other Consideration (a) in favour of revocation.

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:

(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

1. Paragraph 9.2(1)(a): the Applicant is 37 years of age and while the material contains reference to him having experienced pain in his shoulder, chronic dental pain, cluster headache as well as other generalised aches and pains,[74] there does not appear any definitive diagnosis about the origin, nature and likely prognosis of those claimed maladies. He refers to having "...had a cardiac episode three years ago. I was diagnosed with PTSD by a psychologist in 2024."[75] But again, the material does not contain any clinical confirmation about these claimed maladies either. In a submission previously propounded on his behalf, it was said the Applicant "...does exhibit symptoms consistent of [sic] post-traumatic stress disorder."[76] It is, to my mind, difficult to sustain any such submission without a formal diagnosis. The submission goes no higher than to suggest "...it is possible his mental health may be impacted significantly if removed from his family and support network in Australia..."[77]
2. I will very cautiously accept that the Applicant may have experienced some physical and psychological symptoms while in this country which may, in turn, manifest into difficulties for him if compelled to remain in New Zealand. However, the material does not suggest that those claimed maladies are not capable of remedial clinical management and control by suitably qualified clinicians in New Zealand. Put at its highest and most generous, it may be found that the Applicant's state of physical and mental health now moderately militates in favour of this Tribunal finding them to be impediments to him remaining in New Zealand but that those impediments are not insurmountable. The Applicant's age - given that it places him in the prime of his life - is not an impediment to him remaining in New Zealand.
3. Paragraph 9.2(1)(b): the Applicant has spent about two thirds of his life in New Zealand. A cursory review of his movement history indicates that since his initial arrival on 2 July 2012, he has boarded New Zealand-bound flights on five occasions. The evidence does not suggest he has any lack of cultural or linguistic familiarity with New Zealand. His 12 years in this country have surely not totally erased his recollection of the language or cultural norms of New Zealand. In any event, the primary language spoken in New Zealand is English. This Tribunal (differently constituted) has previously noted: 'New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand.'[78] I am therefore of the view there are no substantial language or cultural barriers impeding the Applicant remaining in New Zealand.
4. Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and/or economic support available to the Applicant in New Zealand. First, with reference to economic support, the Applicant contends that he "...struggled to secure the necessaries required to establish a basic standard of living because he will have difficulties with his mental health, sourcing immediate suitable employment, with income to facilitate his ability to maintain a basic standard of living."[79] I think this submission should be received with caution. The Applicant has a solid work history in Australia and appears to have acquired significant experience as a "transmission linesman" and/or "communications rigger" in this country.[80] There is nothing to suggest that he would not be able to find similar employment in New Zealand which surely would have a demand and resulting vacancies for people with this level of experience in this field. If he needs some short term financial relief and support he will have access to the equivalent of what we know in Australia as Centrelink/unemployment benefits. I am of the view that any lack of economic support in New Zealand is not an impediment to him remaining in that country.
5. Second, with reference to medical support in New Zealand, I again refer to the state of the Applicant's physical and mental health which I found to be not severe enough to be incapable of remedial clinical management and control. To the extent he may require publicly available care and treatment for his mental health symptoms in New Zealand, he will be able to avail himself of such medical support as is available to other citizens of that country. New Zealand is a country with broadly similar standards of publicly available healthcare for both physical and mental health symptoms. The further reality is that he has been in New Zealand for a couple of months and there is no evidence that any physical or mental health symptoms have significantly interfered with his life in that country to date. The question of medical support in New Zealand is a slight impediment to him remaining in that country but not an insurmountable one.
6. Third, with reference to social support available to him in New Zealand, the Applicant now claims to be homeless and itinerant in New Zealand. In an earlier document, it was propounded on his behalf that "...he will have no assistance or support to aid him in establishing accommodation or financial support on arrival."[81] This submission does, of course, pre-date the Applicant's voluntary removal to New Zealand in November of last year. But be that as it may, I am not of the view that any impediment arising from a lack of social support is insurmountable. This is so because of the support the Applicant is likely to receive through the operation of the Returning Offenders (Management and Information) Act 2015 (NZ).
7. This legislation gives rise to a genuine prospect that the Applicant would receive support from the New Zealand Government to re-establish his life in that country as a visa cancellation returnee. The legislation is designed to facilitate the safe reintegration of returning prisoners into the New Zealand community. As best as I understood the material, the Applicant would qualify as a 'r_eturning prisoner'_ for the purposes of s 17 of that legislation because:

(1) the Applicant has been convicted in an overseas jurisdiction of an offence(s) that would constitute an imprisonable offence in New Zealand;

(2) he has been sentenced to a term of imprisonment exceeding one year in relation to that offence[s]; and

(3) it can be safely found that if he remained in Australia until the outcome of the instant application is known, he would return to New Zealand within six months of his release from custody, which includes immigration detention.

1. If the Applicant does successfully qualify as a 'returning prisoner' under this legislation, he will become subject to monitoring and management by the community corrections authorities in New Zealand and be required to comply with any standard release conditions imposed upon him. While I profess no expertise in the legislation of New Zealand, it seems there is a genuine possibility the Applicant will receive structured assistance in re-establishing his life in New Zealand. While the Returning Offenders Act does not prescribe specific supports, the Department of Corrections' publicly available information states that a "returning prisoner" would typically be: (1) assigned a probation officer who provides instructions regarding reporting obligations with accompanying standard or special conditions; (2) assisted by Community Corrections staff to assess the Applicant's immediate needs, applying for benefits, securing employment, and developing longer-term reintegration plans; and (3) provided support with sourcing short-term accommodation, which must be approved by the probation officer, and alternatives will be sought if initial arrangements are deemed unsuitable.
2. To repeat, I am of the view that any social impediment the Applicant may experience in resettling in New Zealand is slight and not insurmountable.

1. My findings about impediments are as follows:
   • the Applicant's age is not an impediment to him remaining in New Zealand. His physical and mental health are moderate impediments but not otherwise insurmountable to him remaining in New Zealand;
   • there are no substantial language or cultural barriers impeding the Applicant remaining in New Zealand;
   • any lack of economic support is not an impediment to the Applicant remaining in New Zealand;
   • any lack of medical support is a slight impediment to the Applicant remaining in New Zealand, but not an insurmountable one; and
   • in terms of social support in New Zealand, this is a slight impediment to him remaining in New Zealand, but not an insurmountable one.
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) attracts a moderate level of weight towards setting aside the decision under review.

Other Consideration (c): Impact on Australian business interests

The evidence around an "Australian business interest"

1. The material contains reference to the Applicant being a co-owner of a security business, [name redacted], which is a concern that provides security services to a range of industries. According to the Applicant's evidence, the business "...employs several staff, including our two eldest children."[82] While the Applicant has been absent from the business, he says his wife "...has had to absorb my duties and responsibilities - the management and operation is currently solely relying on [Ms AJT]."[83] If the Applicant is not available to participate in the business, the burden of running it falls on his wife. The Applicant notes "Having her [the wife] work up to 20 hour days, 7 days a week, in view of her precarious medical conditions is not sustainable and could realistically implode at any moment."[84]
2. The Respondent's position is to accept that a non-revocation outcome would detrimentally impact the business but that the Applicant has not explained why his absence could not, either in whole or in part, be filled by another individual. As well, the Respondent contends that the Applicant has failed to explain any extent to which he could participate in the business remotely from New Zealand. I approach this latter submission with some caution in circumstances where the nature of the business is very much a 'hands-on' type of business involving the physical control of an event or people at an event. It is not, for example, an information technology business in which the Applicant could participate via a computer from New Zealand. I think it is fair to surmise the Applicant's physical presence is required to (1) train staff; (2) oversee the booking of jobs; and (3) to actually do some 'hands-on' security work as and when the business required.

1. As noted by the Respondent, this Other Consideration (c) can be engaged with regard to any impact on an Australian business interest and is not confined to impacts 'on the delivery of a major project or an important service in Australia.'[86]
2. The only question for present purposes (i.e. for this Other Consideration (c)) is whether the Applicant's voluntary removal to New Zealand has and will significantly impact the capacity of his security business to continue providing its service in Australia. In Arachchi, His Honour Mr Justice Rangiah said:

'Paragraph 9.4.2 of Direction 90[87] commences by stating that, "Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia ...". The requirement is to consider any impact on Australian business interests. The requirement is not confined to business interests of a particular scale or importance. > > Paragraph 9.4.2 goes on to state that, "an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia". Three observations may be made. First, this qualification applies only where there is a relevant "employment link". Second, even where there is a relevant "employment link", decision-makers are not relieved from their obligation to consider any impacts on Australian business interests. Third, while "generally" weight will only be given to the impact on business interests where the cancellation decision would significantly compromise the delivery of a major project or delivery of an important service in Australia, the Direction does not purport to preclude decision-makers from giving weight to impacts on business interests in other circumstances. > > The expression "employment link" must refer to a link between employment of the former or prospective visa holder and impacts on Australian business interests resulting from the person not being able to engage in such employment as a result of cancellation or refusal of a visa**.** It is unnecessary, in the absence of argument, to consider precisely what is meant by "employment" in this context, or to consider the nature of the link that is envisaged. It is enough to conclude that, in the present case, the applicant's claim was not confined to any "employment link" but was that he had an ownership interest in a business and that his removal from Australia would affect his partner's business interests.'[88]

3. Applying Arachchi to the instant facts, I am, first, satisfied that the Applicant's security business is not excluded from consideration for present purposes due to its scale or importance or that it may be found to not be responsible for 'the delivery of a major project or important service in Australia.' Second, I am satisfied there is a relevant "employment link" between the Applicant and [name of security business redacted]. The Applicant obviously worked and involved himself in the business before his incarceration and it seems clear that if allowed to return to Australia, he would re-involve himself in it. Third, it is clear that [name of security business redacted] has been impacted due to him being in prison in Australia and then by his voluntary removal from Australia which has resulted in the Applicant being unavailable to assist in its operation and to work in it. His permanent removal to New Zealand would, for all intents and purposes, end any prospect of him re-involving himself in the business and would very significantly impact its capacity to continue to provide security services in Australia.

1. On the basis that the Applicant's permanent removal to New Zealand would very significantly compromise the capacity of [name of security business redacted] to continue provision of its service, I am of the view (and I will find) that this Other Consideration (c) attracts a moderate level of weight towards restoration of the Applicant's visa status to return to Australia.

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 moderate weight in favour of revocation**.**

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.[89]
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 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 earlier 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), (b) and (c) are dispositively outweighed by the combined respective very heavy 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(a) of the Administrative Review Tribunal Act 2024 (Cth), this Tribunal affirms the decision made by a delegate of the Respondent on 30 October 2025 to not revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category visa.

1. I certify that the preceding 144 (one hundred and forty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member T Tavoularis

This is a decision made on the papers.[90]

Respondent's Statement of Facts, Issues and Contentions

Email from the Respondent's representative to the Tribunal

[1] Note to reader: contemporaneous with publication of these reasons, given the Applicant's commission of domestically violent conduct, I made a Confidentiality Order pursuant to s 70 of the Administrative Review Tribunal Act 2024 (Cth). For all practical purposes, this order compelled de-identification of the Applicant, his immediate and extended family members mentioned in these Reasons as well as any social ties the Applicant may have in Australia who may be mentioned in these Reasons. The principal purpose of this Confidentiality Order is to protect the identity of any victim(s) of the Applicant's domestic violence offending.

[2] Hereinafter referred to as the 'visa.'

[3] Hereinafter referred to as ('the Act').

[4] Hereinafter referred to as the 'decision under review'.

[6] Hereinafter referred to as the "ART Act".

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

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

[12] Direction No 110 - Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA 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.

[14] Sub-paragraph 8.1.1(1)(b)(i) of the Direction.

[15] Sub-paragraph 8.1.1(1)(b)(ii) of the Direction.

[16] Sub-paragraph 8.1.1(b)(iii) of the Direction.

[17] Sub-paragraph 8.1.1(b)(iv) of the Direction.

[18] Paragraph 8.1.1(1)(a)(ii) of the Direction.

[19] Paragraph 8.1.1(1)(a)(iii) of the Direction.

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

[21] See PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22].

[22] Hereinafter referred to as 'Ms AJT.'

[26] Denoting "International Health and Medical Services."

[34] Pursuant to Paragraph 8.1.2 of the Direction.

[45] See generally, R1, pp 126-127, [13]-[15].

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

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

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

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

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

[59] See R2, p 130, [2](a) and (b); see also R1, p 19, [74].

[60] See R2, p 130 and, in particular, the named child appearing next to [2](a)(vii).

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

[65] 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.

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

[67] Regulation 444.511 of the Migration Regulations 1994 (Cth).

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

[69] And, presumably, his own biological children for whatever period they were in Australia.

[70] See [54] and [56(c)] of these Reasons.

[78] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301, [101].

[85] Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311.

[86] See QXNS v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 1369 at [111] - [112].

[87] Direction 90 was a precursor to the current Direction 110. The paragraphs 9.4(2) referred to in Arachchi are now expressed in identical terms in paragraph 9.3(1) of the Direction.