1. As mentioned, the instant hearing proceeded before me on 4 September 2025. The hearing received oral evidence from the Applicant. In terms of written material, the Respondent's representatives have helpfully furnished a comprehensive and duly ordered "Hearing Book" (in two volumes) to both the Tribunal and the Applicant's representatives pursuant to procedural Directions made at an earlier stage of this proceeding. For this the Tribunal is most grateful. For ease of reference and similarity, references to footnotes in these Reasons will be based on the index appearing at the front of each of the two volumes of the abovementioned Hearing Book.

1. The issues before this Tribunal are:
   • whether the Applicant passes the character test; and if not,
   • is there another reason why the mandatory cancellation of his Visa should be revoked by this Tribunal?

1. Section 501(6)(a) of the Act provides that a person does not pass the character test if they have a substantial criminal record. Pursuant to s 501(7)(c) of the Act, a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more. In their respective Statements of Facts Issues and Contentions ("SFIC"), it is uncontroversial between the parties that the Applicant has met these thresholds and, accordingly, does not pass the character test.[4]

Is there another reason why the mandatory cancellation of the Applicant's Visa should be revoked?

1. The sole remaining issue before the Tribunal is whether there is another reason to revoke the decision under review. In considering whether there is another reason to revoke the mandatory cancellation of the Applicant's visa,[5] 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[6] 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 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

1. 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

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

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

2. Before I move to a consideration of each of those primary and other considerations as may be relevant to the instant facts, I will note (and find) - consistent with the positions of the parties expressed in either their written and / or oral submissions and based on my own understanding of the material before me - that Other Consideration (c) (impact on Australian business interests) is not relevant to determination of the instant application.

PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

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

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:
   1. 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:
      1. violent and/or sexual crimes;
      2. crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
      3. acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
      4. 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:
      5. 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;
      6. 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;
      7. 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));
      8. 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;
      9. 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;
      10. 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;
      11. e) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
      12. f) the cumulative effect of repeated offending;
      13. g) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
      14. 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).
      15. i) where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
2. The factual circumstances of the Applicant's unlawful conduct are helpfully summarised in the Respondent's SFIC.[7] The victim sustained specific physical injuries comprising a laceration to his leg which required sutures. He also suffered a cut lip and bruising. It is safe to find the Applicant's conduct has included violence and, as such, should now be found to be very serious pursuant to paragraph 8.1.1(1)(a)(i) of the Direction. The Applicant's conduct has also encompassed family and domestic violence which can be taken into account for the present assessment regardless of whether there is a conviction or sentence for any such offence.[8] This offending falls within the category of conduct which the Australian Government and the Australian community view as 'very serious.'
3. The Applicant has also received not-insignificant sentences for her offending. In November 2021, she was sentenced to a head custodial term of two years, nine months and three days with a non-parole period of one year, seven months and 26 days. It matters not for present purposes whether the sentence initially imposed was one of home detention. It was a sentence intended to remove the Applicant from the community and, as such, can now be safely viewed as a custodial sentence. 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.[9]
4. The Applicant's criminal history contains convictions for repeated failures to comply with a bail agreement into which she had previously entered. These repeated contraventions have consumed more than their fair share of the community's policing and judicial sentencing apparatus in terms of the requirement to bring the Applicant to account for those contraventions. It is a palpable cumulative effect of her repeated offending in this regard.[10]
5. Having regard to the three relevant paragraphs of paragraph 8.1.1(1) of the Direction[11] which are relevant to this Applicant's conduct, I will find that the totality of her unlawful conduct in Australia has been very serious.

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. The position taken in the Applicant's SFIC is expressed in these terms: 'The Australian Government's view is that tolerance of risk diminishes as the potential harm also increases. However, the risk of repetition here is low, and the possible harm does not fall into the gravest categories of concern.'[12]
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:

i. information and evidence on the risk of the non-citizen re-offending; and

ii. 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.

Sub-paragraph 8.1.2(2)(a): 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 conduct giving rise to the Applicant's conviction at a District Court in South Australia in November 2021 involved violent conduct. Its victim suffered physical injuries. Were this type of behaviour to be repeated, it is not at all a stretch of the evidence to suggest and find that another victim would suffer physical, psychological and potentially even catastrophic harm if exposed to such violent conduct. Further, the Applicant has repeatedly breached bail agreements into which she has entered. The community's policing and judicial sentencing resources would again be unduly consumed by such conduct, if repeated.
2. It is safe and reasonable to find that the nature of the harm to individuals and/or the Australian community resulting from further unlawful conduct by this Applicant would range from physical, psychological and potentially catastrophic harm as well as involving the undue consumption of the community's policing and judicial sentencing resources. I will also find pursuant to sub-paragraph 8.1.2(1) of the Direction, that the harm resulting from any such repeated offending (but particularly the violent offending sentenced at a District Court of South Australia in November 2021), is so serious that any risk of such recommission should now be found to be unacceptable.

Sub-paragraph 8.2.2(b): the likelihood of the non-citizen engaging in further criminal or other serious conduct

1. The remarks of the learned sentencing Judge who dealt with the Applicant at a South Australian District Court in November 2021 indicate His Honour thought the Applicant's recidivist risk was low provided her mental health symptoms were the subject of proper clinical management and control and also provided she was able to achieve a sustained abstinence from illicit drug use. At the instant Hearing, the Applicant spoke of having used illicit drugs during her time in prison and in immigration detention. In and of itself, this evidence is of concern from a recidivist risk perspective because it means that not even the controlled environments of prison and detention were sufficient to prevent her from accessing and consuming those substances.
2. She also told the instant Hearing that she had been abstinent from illicit drugs for something in the order of 160 days. This evidence must be approached with caution for a couple of reasons: (1) even if it is true, she has nevertheless consumed illicit substances in both prison and immigration detention and so the longevity of the abstinence she now claims must be viewed in that context; and (2) this claimed capacity for prolonged abstinence is yet to be tested in the community where these substances will be much more freely available to her. She spoke of ending contact with past negative peer influences if now returned to the community. Even that element remains to be tested in the community as is the case with the claimed protective elements of responsibilities towards her children, her broader family and her religious faith. None of these elements successfully protected the Applicant from illicit drug use and a pattern of criminal offending.
3. Another aspect of the evidence which speaks negatively towards the Applicant's recidivist risk is her less than optimal history of complying with prescribed medical treatment for the management of her mental health issues. It is concerning that there has been non-compliance with taking her prescribed medication while in immigration detention and prior to that time. This is especially critical from a symptom management perspective when before the Tribunal there are clinical diagnoses of significant mental health issues such as schizophrenia and bipolar disorder. It is not enough for the Applicant to now say those serious mental health symptoms are the by-product of a previous pattern of illicit drug use and that if she remains off the drugs, those symptoms will simply go away. There is little or nothing in the evidence of any clinical import to support such a finding.
4. Compliance with prescribed medication appears to be of very significant importance to this Applicant because when she has failed to follow this medicated regime, her capacity to regulate her emotional reactions has been impeded and it is this lack of medically-necessitated regulation that has been at the heart of the breach of otherwise favourable home detention orders. It has also been the trigger for her resuming a pattern of illicit substance abuse. From a risk-management perspective, it is quite critical that she does everything necessary to control and manage her emotional responses to specific situations including the successful resistance against her cravings for illicit drugs. None of this has been tested in the community into which she now seeks to be released.
5. To the extent that past behaviour may be indicative of future conduct, the evidence contains a concerning pattern of non-compliance with medication and the extent to which this de-regulates the Applicant's behaviour. Following her sentencing in November 1991, she was brought back before the learned sentencing Judge in October 2022 as a result of (1) returning urine samples that were positive for illicit substances; and (2) failing to attend appointments for drug and alcohol counselling and for her medication in February 2022. When dealing with the Applicant for these breaches, the learned sentencing Judge referred to a psychiatrist's report before the Court referring to the Applicant's acute psychotic symptoms and to her ongoing difficulties with overcoming her addiction to illicit substances.
6. The learned sentencing Judge also took into account a report from the corrective services authorities which noted the Applicant's increased insight and vigilance towards illicit substance abuse together with favourably-termed letters from other sources. This lead to the learned sentencing Judge effectively excusing the breaches and deciding to not cancel (or amend) the home detention order originally imposed in November 2021. This panacea was short lived because following the Applicant's release on parole in July 2023, the Parole Board of South Australia did, in September 2023, issue a warrant for the Applicant's arrest for breaches of her parole conditions.
7. In its report from November 2023, the Parole Board cancelled the Applicant's parole which made her liable to serve a period of one year and nine days in actual custody. This action was compelled by (1) her failure to report for supervision and urine analysis on 13 September 2023; (2) her failure to comply with a direction to comply with her prescribed regime of anti-psychotic medication; and (3) a returned urine sample on 15 September 2023 which disclosed a positive result for illicit substances and other non-prescribed medications. Thus, this Applicant's most recent return to the community has resulted in an outcome where her parole was cancelled and she was returned to prison. There is little or nothing in the evidence to suggest things would be any different now were she returned to the community as a result of a favourable outcome for the instant proceeding.
8. This report from the Parole Board (November 2023) concerningly contains the following comments: 'On 13/09/2023, [the Applicant's father], name redacted, contacted the writer to advise that he wanted to revoke consent for [the Applicant] to reside with him and his wife in their family home. [The Applicant's father] stated that there were ongoing issues with respect of [the Applicant's] behaviour, however [the Applicant's father] appeared reluctant to provide any further information, and instead suggested that the writer speak with [the Applicant] so she could explain what had been happening.'[13]
9. A more recent Parole Board report from July of last year (2024) noted the following from a recidivist risk perspective: (1) the Applicant's poor compliance with supervised orders; (2) her limited insight into the extent to which her mental health has impacted and was contributory of her anti-social and unlawful conduct; (3) her propensity to resort to illicit drug use as a primary means of coping with difficulties rather than drawing on supportive elements around her; (4) her failure to refrain from re-associating with negative peers which is directly referrable to her increased risk of re-offending; and (5) that the Applicant should participate in Dialectical Behavioural Therapy for her diagnosis of Borderline Personality Disorder. In terms of risk management strategies, this Parole Board report from July 2024 noted 'If the Parole Board do consider releasing [the Applicant] onto Parole, it is recommended that she be subject to an intensive electronic monitoring scheme.'[14]

1. There is little to cavil with the proposition (and finding) that the Applicant's compliance with previously imposed community-based orders has been poor. Her compliance with requirements around managing her serious mental health issues has also been poor. There is little or nothing in the evidence to convince me that if returned to the community now, she will commence a pattern of faithful and rigorous engagement with rehabilitation - both in terms of prescribed medication and participation in defined therapy - and that she would otherwise maintain a strict pattern of abstinence of illicit substance abuse. I am not satisfied that she has demonstrated any sort of convincing capacity to not again resort to illicit drugs as a means of dealing with life's inevitable difficulties and strictures.
2. I therefore cannot safely adopt the conditional views of the learned sentencing Judge (who dealt with her in November 2021) that the Applicant represents a low recidivist risk. This is because she has failed to meet the conditions of that finding which involved her making sure that her mental health issues were properly managed and that she was able to achieve abstinence from illicit drugs.
3. The evidence leads me to a finding that, in terms of the here and now, she represents an unacceptable risk of reoffending. I cautiously note her claimed recent abstinence from illicit drug use which, if true and if sustained, might cause her risk profile to trend favourably downwards. I reach this recidivist risk finding with the Direction's dictum that the safety of the Australian community is "...the highest priority of the Australian Government"[15] at the forefront of my mind. To this finding, it is inevitably necessary to add a cautionary element such that were the Applicant to repeat her violent offending sentenced in November 2021, the impact on any victim would be so serious that any such risk should now be found to be unacceptable.[16]

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 the nature of the harm to individuals and/or the Australian community resulting from further unlawful conduct by this Applicant would range from physical, psychological and potentially catastrophic harm as well as involving the undue consumption of the community's policing and judicial sentencing resources. I have also found pursuant to sub-paragraph 8.1.2(1) of the Direction, that the harm resulting from any such repeated offending (but particularly the violent offending sentenced at a District Court of South Australia in November 2021), is so serious that any risk of such recommission should now be found to be unacceptable; and > > c) in terms of risk profile, I have assessed that in terms of the here and now, the Applicant represents an unacceptable risk of reoffending. I have cautiously noted her claimed recent abstinence from illicit drug use which, if true and if sustained, might cause her risk profile to trend favourably downwards. I have reached this recidivist risk finding with the Direction's dictum that the safety of the Australian community is "...the highest priority of the Australian Government"[17] at the forefront of my mind. To this finding, it is inevitably necessary to add a cautionary element such that were the Applicant to repeat her violent offending sentenced in November 2021, the impact on any victim would be so serious that any such risk should now be found to be unacceptable.

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

PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

(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. The parties disagree about whether this Primary Consideration 2 is engaged for present purposes. The Applicant contends that her '...criminal record does not include family violence. There is no evidence or allegation of family violence. While the Applicant has been a victim of Family Violence, this factor should weigh in favour of revocation.'[18] I think this contention is misplaced and otherwise incorrect. It is plain from the remarks of the learned sentencing Judge who dealt with the Applicant in November 2021 that she was in a relationship with the victim of her offending for about one month and that they were living together at the time the Applicant's unlawful conduct. While accepting that she may have been herself the subject of domestic violence, the learned sentencing Judge was not prepared to allow that possibility as any militative excuse behind her domestically violent conduct towards her victim.
2. Paragraph 8.2 of the Direction compels two additional inquiries: (1) it is necessary to ascertain who was a member of the Applicant's family? and (2) whether any of the Applicant's conduct against any such family member amounts to family violence for present purposes? I will address each question in turn.

1. Paragraph 4(1) of the Direction defines family violence to mean ".....violent, threatening or other behaviour by a person that coerces or controls a member of the person's family....or causes the family member to be fearful." 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 domestic partner / victim referred to in the abovementioned sentencing remarks, was a member of the Applicant's family for present purposes.

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

1. As mentioned, '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'.[19] 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. A couple of things are plain from the evidence. The Applicant's conduct towards her victim was committed in the context of a domestic relationship she maintained with him at the relevant time. This conduct plainly meets the threshold of conduct comprising violent, threatening or other behaviour that caused the domestic partner / victim to be fearful. I therefore surmise that the Applicant's conduct perpetrated upon her domestic partner / victim culminating in her convictions in November 2021 was indeed conduct that was violent, threatening and/or behaviour that sought to coerce or control him. I am likewise satisfied that the Applicant's conduct in the relevant incident was violent, threatening and that it was behaviour that caused that former domestic partner / victim to be fearful.

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

1. The Applicant's family violence conduct does not appear to have previously spawned any duly made protection order (or equivalent). Accordingly, her family violence conduct (as part of the indicia of conduct dealt with by the Court in 2021) must now be found to fall within the auspices of paragraph 8.2(2)(b) comprising conduct in respect of which there is information or evidence from an independent and authoritative source indicating she has been involved in the perpetration of family violence.[20]
2. One could not find any more independent or authoritative source referring to this conduct than the remarks of the learned sentencing Judge who dealt with her in November 2021. The resulting findings must be that (1) the Applicant's conduct towards her domestic partner comprises family violence against that victim; and (2) this Primary Consideration is relevant to determination of the instant application. I so find.

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. It can be readily accepted that the Applicant's family violence conduct has not been frequent and, as such, it is not possible and otherwise unsafe to attribute any trend of increasing seriousness to it. I will therefore put this paragraph to one side and render it neutral for present purposes.
3. Paragraph 8.2(3)(b): requires consideration of the cumulative effect of repeated acts of family violence. The Applicant has not committed repeated acts of family violence. She is not a frequent offender in this realm of illegality. I will therefore put this paragraph to one side and render it neutral for present purposes.
4. Paragraph 8.2(3)(c): requires consideration of any rehabilitation achieved by the Applicant at the time of my decision since her last known act of family violence. This

sub-paragraph compels three enquiries: 1. (i) first, sub-paragraph 8.2(3)(c)(i) looks for the extent to which the Applicant has accepted responsibility for her family violence related conduct. As noted earlier, the Applicant does not accept she has committed any act(s) of domestic violence and thus there is little or nothing in the evidence about the extent to which she accepts responsibility for it. I will find the Applicant has not accepted responsibility for her domestically violent conduct; 2. (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 her oral evidence, the Applicant appeared to accept, at least in broad terms, the nature and extent of her offending that was punished in November 2021. But this acceptance did not include any acknowledgment that her conduct involved domestically violent offending against her partner / victim and, accordingly, I am not satisfied she has comprehended the impact of her domestically violent conduct on that victim; and 3. (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. As mentioned, the Applicant's engagement with the rehabilitative process has been both inconsistent and unreliable. It is difficult to see where this rehabilitative process has involved any element of rehabilitation for domestically violent conduct. It has primarily focused on (1) addressing her mental health issues; and (2) assisting her to overcome an addiction to illicit substances. Therefore, I am not satisfied the Applicant has made the necessary rehabilitative efforts referenced in this particular paragraph. 5. Sub-paragraph 8.2(3)(d) raises the question of 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'. Here, there seems to be just the one episode of domestically violent conduct that was the subject of judicial review and scrutiny. There does not appear to be any recommission of such conduct after she was dealt with in November 2021. I will therefore put this sub-paragraph to one side and render it neutral for present purposes.

1. Having regard to the Applicant's conduct in the realm of domestic and family violence as referenced in the remarks of the learned sentencing Judge who dealt with her in November 2021, I am of the view that sub-paragraphs 8.2(3)(c) does facilitate a finding about the serious nature of the Applicant's family violence conduct. She has not accepted responsibility for her family violence conduct; she has not comprehended the impact of her domestically violent conduct on that victim; and she has not made the necessary rehabilitative efforts to address the factors which contributed to her family violence conduct.
2. Taking into account the weight I have allocated to the various components of paragraph 8.2(3)(c) 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 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.

The evidence around the Applicant's ties to Australia.

1. During the instant Hearing, I requested that the Tribunal be provided with a list of relevant people in Australia in respect of whom the Applicant could claim to now have ties. That list was provided to the Tribunal (for which it is grateful) and it comprises these people (with specific names redacted):

Applicant's Children: Child AHR, born April 2017 - Daughter

Paragraph 8.3(1): Assessment of ties to immediate family members

1. The material contains supportive statements from both of the Applicant's parents and each of her four siblings. It can be safely accepted that each of these six people would be adversely impacted in the event of the Applicant's removal to New Zealand. This finding is predicated on the basis that each of those family members are Australian citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely. The Applicant's ties to immediate family members in Australia most certainly militate in favour of the allocation of heavy weight in her favour pursuant to this Primary Consideration 3.This weight is augmented by her ties to her two abovementioned biological children comprising Child AHR and Child ZR. Those ties have been impacted as a result of the Applicant serving time in prison and then immigration detention since September 2023 and by the reality that those children are primarily parented by their grandparents - that is, - the Applicant's parents via Court-ordered parenting orders.
2. Overall, I will find that the Applicant's ties with the nominated immediate family members comprising her parents, four siblings and two infant children militate in favour of a heavy level of weight in her favour pursuant to this Primary Consideration 3. To repeat, 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.

Paragraph 8.3(2)(b) Assessment of ties to extended family and social links

1. The material contains respective letters from social contacts the Applicant has in Australia. The abovementioned 'Pastor Gillian' has provided a written statement made in February 2024. It speaks of the Applicant's engagement with the 'Futures Church Assembly of God Paradise' in terms of her '...regularly attending our Sunday morning services. She has been engaging with a number of events and services with the goal of having a positive impact on its attendees.'[21] Pastor Gillian notes that she has '...seen [the Applicant] mature and grow in her spiritual life during my time interacting with her. I can confidently say that [the Applicant] is a person of faith and is genuinely aspiring to do the right things in life for her and her family.'[22]
2. The statement of another of the Applicant's church contacts, namely, Ms Rachel Fanguna also appears in the material.[23] Ms Fanguna notes the Applicant '...is a regular church attendance, and she has also attended our fortnightly Connect Group quite regularly when she was out of probation, with many prayers and conversation with [the Applicant] of her intentions to make good decisions for her future but also for her children.'[24] Ms Fanguna concludes her statement by saying 'I pray and hope for the opportunity for [the Applicant] to remain in Australia and for our church and community to support and assist her in her faith journey.'[25] I will find that the Applicant's extended family and social ties militate in favour of a moderate level of weight in her favour pursuant to this Primary Consideration 3. This finding is predicated on the limiting proviso that each of these extended family and social ties being Australian citizens, Australian permanent residents and/or people who have a right to remain here indefinitely.

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

1. This component of Primary Consideration 3 requires me to look at how long the Applicant has resided in Australia, taking into account the following factors:
   • whether the Applicant arrived here as a young child? [26] The Applicant arrived in Australia in October 2000 when she was five years old. She has lived here on a continuous basis with the exception of one month in 2008.[27] I will find that the Applicant did arrive here as a young child. This component of paragraph 8.3(2) does augment the weight allocable to her ties to this country;
   • whether the Applicant began offending soon after arriving here? [28] The Applicant arrived here as a five year old in October 2000. She recorded her first criminal conviction in Australia some 19 years after her arrival. She 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 her offending soon after arriving here;
   • the time the Applicant has spent contributing positively to the Australian community during his time here.[29] The Applicant's SFIC says that 'Throughout her time in Australia, [the Applicant] attended local schools, formed lasting friendships, and actively participated in community life. She has held various jobs...'[30] Yet elsewhere in the material there is reference to the Applicant declaring her employment status as 'Unemployed'[31] and of her '...only [having] had jobs for a few days at most because of poor attendance and at times poor work ethic'.[32] I will find that the Applicant has a very limited work history in Australia and that her involvement in lawful remunerative employment has been very intermittent. She will have made only minimal income tax payments on any remunerative earnings and her material contribution to this country has otherwise been quite minimal. I am hard-pressed to identify any identifiable community contributions. Her involvement in the Australian community has been primarily oriented towards whatever involvement she has had in her local church community. On the basis of her intermittent or otherwise non-existent employment and community contributions, I will find that this component of paragraph 8.3(2) of the Direction affords a neutral level of weight in the Applicant's favour towards a finding about the strength of her 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 augment the weight allocable to the Applicant for the purposes of this Primary Consideration 3 because she did 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 for this Primary Consideration 3 because she did not begin offending soon after arriving in Australia;
   • sub-paragraph 8.3(2)(a)(ii): does not assist the Applicant because of her intermittent or non-existent employment and community contributions to Australia.
3. Therefore, only the specific sub-paragraphs 8.3(2)(a) and 8.3(2)(a)(i) (arrived here as a young child; did not begin offending soon after arriving here) 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 her ties to immediate and extended family members in Australia and her 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.[33] 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:[34]

(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.

1. As best as I understood the material, the relevant minor children comprise the abovementioned:

Applicant's Children: Child AHR, born April 2017 - Daughter

Application of factors at 8.4(4) of the Direction to the Applicant's two children

1. As noted earlier, these two children, aged eight and five respectively, have for most, if not all, of their lives resided with their maternal grandparents and have done so pursuant to Court-ordered custodial orders. Consequently, there has been a limited duration in any 'hands-on' parental or other relationship between her and them. Her time in prison and then immigration detention has resulted in limited meaningful contact and in long periods of absence of her from their lives. Importantly, there is an existing Court-order which mandates that custody of the children rests with their maternal grandparents, not the Applicant, and this has been the case for seven years.[35]
2. It can be accepted that the Applicant's parents are receptive to her resuming some kind of positive parental in the future of both children. She has plenty of time to do so because, in cumulative terms, there is something like 23 years of cumulative parenting time left to run until both children attain the age of 18 years. That said, it should be noted (again), that there are existing Court-orders governing custody of the children which the Applicant will have to have varied if she wants to resume any primary parental role in their lives.[36] As against that, there is the evidence of the parents who are not adverse to the Applicant playing at least some kind of parental role in the lives of these two children. The parents say:

'Both children... have a very strong bond to their mother despite their mothers battles outside the home. When [the Applicant] is home during home detention or parole she dedicates herself to her childrens [sic] with unwavering love and care preparing the children's lunches for school and early learning, getting their breakfast on the table then getting them ready for their day, she caters for all their needs literally as well as maintaining the home, the children absolutely flourish when their mums around.'[37]

1. With perhaps the exception of the older child, little is known about any impact of the Applicant's prior conduct on the children and any extent to which they would be impacted were she to reoffend.[38] Were she removed to New Zealand, it is not beyond the realms of possibility that she would be able to maintain contact with them via telephonic or electronic means. This may have already occurred while she has been in immigration detention. Of course, nothing replaces in-person parental care but this does not displace the reality that the Applicant could have contact with her children in Australia from New Zealand via non-in-person means.[39] The Applicant's parents already fulfill a parental role for both children and have done so pursuant to Court-ordered custodial orders for the last seven years.[40]
2. As best as I understood the material, there is no reference to any views of either child about the Applicant's removal to New Zealand. They are eight and five respectively and are probably too young to be able to reliably express such views.[41] There is no evidence that either of these children have suffered or experienced any of the adverse elements referred to in paragraphs 8.4(4)(g) and (h) of the Direction.

1. The following contention appears in the Applicant's SFIC:

'Given that [the Applicant] is the sole caregiver for her Australian children, they are not only Australian citizens but are also of Aboriginal heritage. Her removal would sever not only maternal bonds but also cultural continuity, an outcome contrary to the best interests of the children. They actively participate in cultural activities and events within their local Aboriginal community, fostering a strong sense of identity and belonging. The children's school supports and encourages their engagement with Aboriginal education programs, and they benefit from connections with Aboriginal mentors and elders. These relationships provide vital cultural, emotional, and educational support. Removal of their sole parent would risk severing these essential ties, disrupting their connection to Country, and causing significant harm to their cultural identity, wellbeing, and development.'[42]

1. There is an initial point to be made about the above contention. The material confirms the Applicant is not the primary caregiver of her two minor biological children. It is her parents who currently fulfill a Court-ordered parental role in relation to those two children and that they (the Applicant's parents) have had custody of those two children for around seven years.
2. During closing submissions, the Applicant's representative took the Tribunal to various letters in the material making reference to a claim that the Applicant's two minor children are of Aboriginal descent. These letters claim these children are part of an Aboriginal lineage and also make reference to the Applicant's integration into the Aboriginal community of South Australia. The resulting claim is one of the children's interests being adversely impacted as a result of the Applicant's removal to New Zealand because, it is said, such removal would strike at the core of the children's wellbeing, identity and heritage.
3. As best as I understood the material, the Applicant is not claiming to be Aboriginal but instead claims that her children are. On this basis, it is incumbent on this Tribunal to consider that claim and to assess, what if any weight is to be allocated to that claim. Apart from the Applicant's own contention, it can be accepted that there is some measure of evidence about the connection of the Applicant's two minor biological children with the Australian Indigenous community.
4. For the purposes of this Primary Consideration 4, there is no indication that either of the children will be removed from Australia consequent upon any removal of the Applicant. As mentioned, she does not have custody of these children and has not done so for the last seven years pursuant to Court orders. Accordingly, there cannot be any weight to the contention that either of these children would be deprived any ongoing connection to whatever Indigenous heritage they may claim to have as a result of an adverse outcome for the Applicant in this proceeding. I am not of the view that this alters the weight ultimately allocable to the best interests of those two children pursuant to this Primary Consideration 4.

Allocation of weight to the best interests of the relevant minor-aged children

1. If the Applicant were to be permanently removed to 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, at their highest, attract the allocation of a moderate level of weight to their best interests.

Application of factors at 8.4(4) of the Direction to the Applicant's nieces and nephews

1. The evidence is scant or non-existent about any nature or duration of any relationship the Applicant may now claim to have with these children. Her relationship with them has clearly been non-parental and given the total period of her removal from the community, there have been long period of her absence from their lives and a correspondingly limited amount of meaningful contact with them.[43] She is not likely to play any positive parental role in the future lives of these nieces and nephews and will mostly likely play the role of the loving aunt, if anything.[44]
2. We do not know the impact of her past conduct and the impact of any future conduct on these children.[45] Were she removed to New Zealand, she would be able to maintain contact with these children in non-in-person ways.[46] Other people clearly fulfill the parental role for these children.[47] Their views about the Applicant's permanent removal from Australia are not known.[48] There is no evidence that either of these children have suffered or experienced any of the adverse elements referred to in paragraphs 8.4(4)(g) and (h) of the Direction.

Allocation of weight to the best interests of the relevant minor-aged nieces and nephews

1. If the Applicant were to be permanently removed to 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, at their highest, attract the allocation of a slight level of weight to their best interests.

1. Having regard to the cumulative weights I have allocated to (1) the best interests of the Applicant's two minor children; and (2) her minor nieces and nephews, I will therefore find that this Primary Consideration 4 is of moderate weight in favour of this Tribunal revoking the decision under review.

PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

1. 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.[49] The Direction 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.'[50]

1. Paragraph 8.5(1) of the Direction is expressed in these terms:

"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. The Applicant has clearly breached the Australian community's expectations by her record of very serious criminal offending in this country which is evidenced by her conviction for violent offending at a District Court in South Australia in November 2021. Therefore, I will find that 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:[51]

(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 Applicant's conviction received in November 2021 does encompass conduct involving acts of domestic and family violence. Such conduct falls squarely within the auspices of the abovementioned paragraph 8.5(2)(a) of the Direction. This conduct demonstrates a breach of the abovementioned normative expectation and as such constitutes offending of sufficient seriousness such that the Australian community would expect the Australian Government to refuse to set aside the mandatory cancellation of her 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 abovementioned paragraph [86] the term 'limited stay visa' is not defined in the Act. The Applicant in this case held a Class TY Subclass 444 Special Category (Temporary) visa until it was mandatorily cancelled on

13 December 2023. This visa permits a citizen of New Zealand to remain in Australia indefinitely.[52] As the visa permitted the Applicant to remain in Australia without any limit on the duration of her stay, that visa cannot be classified as a limited stay visa.[53] Therefore, this sub-paragraph (a) is not applicable to the Applicant. 3. In relation to sub-paragraph (b) of the abovementioned paragraph [86], the Applicant has spent a cumulative total of about 25 years in Australia since initially arriving here in October 2000 aged five years. She has spent about 83% of her life in this country and is currently aged 30 years. She has an intermittent and otherwise non-existent work history in Australia. She has borne two biological children in this country and has made very minimal (if any) employment and community contributions to it. That said, whatever participation in, and contribution to, the Australian community she may have made during her 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 [86], I repeat that the Applicant initially arrived in Australia as a five-year-old in October 2000. She has spent about 83% of her life in Australia and she did come here at a very young age.[54] This means the Australian community's level of tolerance of criminal or other serious conduct by this Applicant is raised. 5. In relation to sub-paragraph (d) of the abovementioned paragraph [86], I am of the view that the balancing exercise between (on the one hand) the harm that would be caused by the Applicant's re-commission of her criminal offending[55] of the same type already committed and (on the other hand), whatever countervailing considerations may work in her favour, is necessarily a principle referable to the community's expectations for present purposes. This is because I am of the view that the nature of the Applicant's offending[56] has been very serious. I note the harm suffered by the victim of her unlawful conduct and consider that the totality of her conduct comprises offending of such a significantly serious magnitude such as to dispel any applicable countervailing considerations. 6. In relation to sub-paragraph (e) of the abovementioned paragraph [86], I am of the view that the totality of the Applicant's unlawful conduct in this country has been sufficiently serious such as to displace any strong countervailing considerations militating in favour of a positive visa outcome. I have found that the Applicant poses an unacceptable recidivist risk and that the harm resulting from any recommission of his offending would be so serious as to now be unacceptable to the Australian community were she returned to it.

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

Other Consideration (a): Legal consequences of the decision

1. The Applicant does not fear harm upon a return to New Zealand and is not otherwise propounding a position suggestive of Australia's non-refoulement obligations being engaged. There is no indication of her making any application for a protection visa. She is not barred from doing so either by s 48A of the Act or s 501E of the Act. Given she has the capacity to make an application for a protection visa, this Tribunal can defer the assessment of whether any non-refoulement obligations are owed to her.[57]
2. But this does not mean the Applicant will not experience legal consequences if permanently removed to New Zealand. In that scenario, she will be permanently excluded from re-entering Australia. Two consequences will follow: (1) while the consequence of her permanent removal from Australia does not engage the terms of paragraph 9.1 of the Direction, s 501E of the Act prohibits her from making any application for another visa, with the exception of a protection visa;[58] and (2) she may experience particular impediments if compelled to return to New Zealand which, in turn, may also adversely impact the ties she has with people in Australia. Neither of these two components of this second consequence are contemplated for consideration in 9.1 of the Direction. Any impediments she will face fall for consideration under paragraph 9.2 of the Direction. The impact on her ties to Australia was considered earlier in these Reasons pursuant to paragraph 8.3 of the Direction.
3. I accept there may well be legal and other consequences for the Applicant if unsuccessful in the instant proceeding. Even so, it would be unsafe to allocate anything more than (at best) moderate weight to those legal and other consequences.

Other Consideration (b): Extent of impediments if removed

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

(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 aged 30 years. She seems to be in good physical health. She does, of course, have specific mental health diagnoses which have been the subject of some measure of remedial treatment in Australia. These mental health conditions are not unknown in New Zealand and the Applicant will be able to access publicly available mental health care for those conditions in New Zealand to the same extent as would be available to other citizens of that country. The Applicant's age and state of physical health are not impediments. The state of her mental health comprises, at best, a moderate, but not insurmountable impediment to her returning to New Zealand.
2. Paragraph 9.2(1)(b): the Applicant has spent about a 83% of her life in Australia. The evidence does not point to her having any lack of cultural or linguistic familiarity with New Zealand. Granted, while she has resided here from the age of five, it would be incorrect to say that any recollection or familiarity she may have of New Zealand has been either completely obliterated or that New Zealand is a country unknown to her. 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.'[59] There are no substantial language or cultural barriers impeding the Applicant returning to New Zealand.
3. 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 has an intermittent and virtually non-existent history of remunerative employment in Australia. She will likely experience difficulty in immediately sourcing a paid job in that country. If she requires short-medium term support while sourcing employment, she will be able to access such social security and/or welfare benefits as are available to other citizens of that country. I will find that any lack of economic support represents a moderate, but not insurmountable, impediment to her return and resettlement in New Zealand.
4. Second, with reference to medical support in New Zealand, I again have regard to the Applicant's state of mental health. To whatever extent she may require publicly available treatment for her mental health symptoms in New Zealand, she will have available to her such medical support as is available to other citizens of that country. I will find that any lack of medical support represents a moderate, but not insurmountable, impediment to the Applicant's return and resettlement in New Zealand.
5. Third, with reference to social support available to her in New Zealand. The Applicant's SFIC says 'She has no real ties to New Zealand.'[60] In closing submissions, it was said the Applicant has no meaningful family, social or community connections in New Zealand and would face significant hardship and isolation if removed to that country. I accept the Applicant's primary connections with immediate and extended family are with people in Australia. I also accept she will experience at least some measure of hardship in terms of sourcing social support to assist with and facilitate her return and re-settlement in New Zealand. I will find that any lack of social support represents a significant, but not insurmountable, impediment to the Applicant's return and resettlement in New Zealand.

1. My findings about impediments are as follows:
   • the Applicant's age and state of physical health are not impediments. The state of her mental health comprises a moderate, but not insurmountable impediment to her returning to New Zealand;
   • there are no substantial language or cultural barriers impeding the Applicant being removed to New Zealand;
   • any lack of economic support represents a moderate, but not insurmountable, impediment to the Applicant's return and resettlement in New Zealand;
   • any lack of medical support represents a moderate, but not insurmountable, impediment to the Applicant's return and resettlement in New Zealand; and
   • any lack of social support represents a significant, but not insurmountable, impediment to the Applicant's return and resettlement in New Zealand.
2. Having regard to my findings referrable to each of the three sub-paragraph components of this Other Consideration (b) I am of the view that - put at its highest - it confers a heavy, level of weight in favour of this Tribunal setting aside the decision under review.

Other Consideration (c): Impact on Australian business interests

1. As best as I understood the material, the parties are of one mind that this Other Consideration (c) is not engaged by the instant facts. I will put it to one side and render it of neutral weight.

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 heavy weight in favour of revocation; and

(c) impact on Australian business interests: is of neutral weight.

1. Under section 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant's visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied there is another reason, pursuant to the Direction, to revoke the cancellation decision. As noted (and found) previously in these Reasons, the Applicant does not pass the character test.
2. In considering whether there is another reason to exercise the power afforded by section 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant's Visa, I have had regard to the considerations referred to in the Direction. I find as follows:
   • Primary Consideration 1: is of a very heavy level of weight in favour of affirming the decision under review;
   • Primary Consideration 2: is of a 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 moderate level of weight in favour of setting aside the decision under review;
   • Primary Consideration 5: is of a very heavy level of weight in favour of affirming the decision under review.
3. I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined respective weights I have allocated to Primary Considerations 3 and 4 and Other Considerations (a) and (b) are dispositively outweighed by the combined respective heavy and 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 25 June 2025 to not revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa.

I certify that the preceding one hundred and ten (110) paragraphs are a true copy of the reasons for the decision herein of Senior Member T Tavoularis

Pursuant to section 105(a) of the Administrative Review Tribunal Act 2024 (Cth), the Tribunal affirms the decision made by a delegate of the Respondent dated 25 June 2025 to not revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa.

The Tribunal will give written reasons within a reasonable time of this decision.

........................................................

[1] Hereinafter referred to as "the visa."

[2] Hereinafter referred to as "the Act."

[3] Hereinafter referred to as the "decision under review."

[4] See HB1, p 1, [3]; see also HB2, p 9, [21].

[5] Pursuant to section 501CA(4) of the Act.

[6] 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. I will hereinafter refer to Direction 110 as "t_he Direction_."

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

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

[10] Paragraph 8.1.1(1)(f) of the Direction.

[11] That is, paragraphs 8.1.1(1)(a)(i) and (iii); paragraph 8.1.1(1)(c) and (f) of the Direction.

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

[16] Pursuant to Paragraph 8.1.2 of the Direction.

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

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

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

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

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

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

[35] Paragraph 8.4(4)(a) of the Direction.

[36] Paragraph 8.4(4)(b) of the Direction.

[38] Paragraph 8.4(4)(c) of the Direction.

[39] Paragraph 8.4(4)(d) of the Direction.

[40] Paragraph 8.4(4)(e) of the Direction.

[41] Paragraph 8.4(4)(f) of the Direction.

[43] Paragraph 8.4(4)(a) of the Direction.

[44] Paragraph 8.4(4)(b) of the Direction.

[45] Paragraph 8.4(4)(c) of the Direction.

[46] Paragraph 8.4(4)(d) of the Direction.

[47] Paragraph 8.4(4)(e) of the Direction.

[48] Paragraph 8.4(4)(f) of the Direction.

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

[50] 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.

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

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

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

[54] That is, consistent with my finding at [60] (first dot-point) and [61] (first dot-point) of these Reasons.

[55] That is, the offending punished in November 2021.

[56] That is, the offending punished in November 2021.

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

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