1. After a stint in prison the applicant devoted significant effort to his rehabilitation and for a period was not using drugs or alcohol. However, by around 2021 he was drinking heavily and using drugs.2 After his partner at the time and the mother of his youngest child broke off their relationship. He engaged in anti-social behaviour that led to him being the subject of a police protection order that excluded him from his home.

1. Consequently, he was homeless and while living on the streets his life fell apart. He quit his job so he had no regular income. He engaged in repeated break-and-enters, stealing alcohol and other things to pay for drugs. He was dealt with by the Magistrates Court for 30 offences in September 2023 and sentenced to a total of 12 months in prison. He was paroled based on time served when sentenced, but after further offending he was returned to prison to serve out his sentence.

1. On 25 June 2024, the applicant's visa was cancelled by a delegate of the Minister for Immigration and Citizenship ('Minister') under s 501(3A) of the Migration Act 1958 (Cth) ('the Act') on the basis that he had a substantial criminal record, as he had been sentenced to a term of imprisonment of 12 months or more and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of a State.3

1. The applicant requested revocation of the cancellation of his visa. A delegate of the Minister decided, under s 501CA(4) of the Act, not to revoke the visa cancellation decision. On 19 August 2025 the applicant applied to the Tribunal for review of the s 501CA(4) decision.

1. The applicant accepts that he does not pass the character test.4 The only issue to be determined is whether there is another reason why the cancellation should be revoked

3 Migration Act 1958 (Cth) ss 501(6)(a), 501(7)(c).

4 Applicant's Statement of Facts, Issues and Contentions dated 10 October 2025 (TB 655).

under s 501CA(4)(b)(ii) having regard to the principles and considerations set out in Direction No. 110: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA, which was executed on 7 June 2024 and commenced on 21 June 2024 ('the Direction').

1. Informed by the principles identified in the Direction, I must take into account the considerations identified in ss 8 and 9 when I am considering the question of whether there is another reason why the original decision should be revoked.

1. The discussion below of the principles and considerations I must take into account under the Direction is drawn largely from one of my earlier decisions on this issue, but it has been revised to appropriately reflect the circumstances of this case.

1. The Direction is divided into 'primary' and 'other' considerations. In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. The protection of the Australian community consideration should generally be given greater weight than other primary considerations and primary considerations should generally be given greater weight than other considerations. There is however scope to give greater weight to other considerations in appropriate circumstances, and similar flexibility is available in the relative weighting of primary considerations.

• Protection of the Australian community from criminal or other serious conduct;

• Whether the conduct engaged in constituted family violence;

• The strength, nature and duration of ties to Australia;

• The best interests of minor children in Australia; and

• The legal consequences of the decision;
• The extent of impediments to the applicant establishing and maintaining basic living standards if removed from Australia; and
• The impact on Australian business interests.

1. I am also required to consider any other considerations raised by the applicant.

1. The principles set out in paragraph 5.2 of the Direction make it clear that the safety of the Australian Community is the highest priority of the Australian Government. 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. The Australian community expects that the Australian Government can and should cancel non-citizen's visas if they engaged in conduct, in Australia, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. 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. With respect to decisions to 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. 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 revoking a mandatory cancellation. The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify revoking the mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

1. Having considered each of the considerations and weighed them appropriately, I have decided to revoke the mandatory cancellation.

1. My reasons for that decision are set out below.

1. The material before me consists of a hearing bundle prepared by the respondent which includes the following.

Documents produced by Magistrates Court of Queensland at

Documents produced by Department of Transport and Main Roads,

Documents produced by Queensland Corrective Services

Documents produced by New South Wales Police Service

Documents produced by Local Court of New South Wales at Coffs

Report on Burundi, prepared by Department of Foreign Affairs and

Statutory Declaration and identity documents of Dieudonne

Statutory Declaration of Isa Joseph Majambere dated 29 November

1. I have also had regard to the parties' statements of facts, issues and contentions.

1. The following witnesses gave oral evidence for the applicant:

1. The respondent cross-examined the applicant, his brother and his sister.

1. In reaching my findings on the primary facts I must apply the principle, clarified by the Full Court of the Federal Court in HZCP v Minister for Immigration and Border Protection5 ('HZCP') at [68], that '...relying on evidence contrary to the essential conviction or sentencing facts would in itself be an error'. The Full Court made clear that a person who makes representations in favour of revoking the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as 'another reason' why the original decision to cancel should be revoked.

1. I do note however that the Applicant is entitled, subject to some qualifications, to seek different findings from the Tribunal in relation to any criminal convictions which did not form the basis of the decision to refuse to revoke the cancellation decision. The principles to be applied by the Tribunal when considering evidence of this nature were comprehensively summarised by Justice Bromberg in HZCP. The principles are stated concisely in the

5 [2019] FCAFC 202.

following passage from Secretary to the Department of Justice and Regulation v LLG, cited with approval by Bromberg J:

The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal's jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the convictions are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.6

1. In this matter, I am therefore bound by the essential findings made in relation the convictions in 2023, for which he was sentenced to 12 months in prison. It is on the basis of this charge that the applicant was found to have failed the character test and the obligation to cancel triggered. Regrettably the judge who sentenced the applicant did not set out detailed findings before handing down his sentences.7 In the absence of clear findings by the sentencing judge I have adopted the findings in the sentencing schedule8 provided to the judge by the police and the applicant's own evidence about the events in question.

1. In relation to the applicant's other criminal charges, I do have some freedom to depart from the findings made in relation to the crimes the applicant was convicted of but have not done so in this case.

1. My findings of fact are set out below. Where a finding is controversial, I have referenced the evidence on which the finding is based.

1. In relation to the applicant's evidence, I have approached some of it with caution. In some areas I am satisfied that his evidence was unreliable. He claimed to have no living relatives in Burundi, but I am satisfied based on other evidence that he has at the very least one Aunt who lives there. The applicant also tended to gloss over or minimise some aspects of his past. He was slow to reveal that he immediately re-offended after being released from prison

6 [2018] VSCA 155, [42].

in September 2023 and gave evidence suggesting that an incident involving consumption of alcohol in immigration detention happened soon after his arrival there when, in fact, he had been there nearly six months when the incident took place.9

1. Having said that, the applicant for the most part gave an account of his behaviour that was accurate and consistent with other evidence available to me.

1. Where the applicant is the only source of information, I have for the most part opted not to make positive findings based on that evidence if it does not ring true. For example, the applicant has made claims at various points in time that he was a child soldier. I am not satisfied that is the case. I am however satisfied that his childhood was traumatic for other reasons. In relation to the evidence of other witnesses, including witnesses who provided statements but were not called to give evidence, I have almost without exception accepted the evidence as given.

1. The applicant was born in Rwanda in 1989. His mother had fled Burundi to Rwanda as a result of civil strife in Burundi. She returned to Burundi a few months later with the applicant and her other children. In 1993 the applicant's father was killed in Burundi during a further episode of civil strife.10 The applicant's mother and six of her children escaped across the border to Tanzania. In Tanzania the family lived in a refugee camp. It was clear from the evidence from the applicant's mother and older brother that the family was exposed to traumatic and life-threatening events there. At some point, the risk to the family became critical and the Red Cross helped to arrange a 'Women at Risk' visa for the applicant's mother and her children.

1. The family arrived in Australia in 2005 when the applicant was 15 years old. The family settled in Coffs Harbour. The family was the first Burundian family to settle in the area which created problems initially.11 The applicant settled into school and was good at mathematics and athletics and for the first couple of years there did not seem to be difficulties integrating.

11 Undated statement of Eric Sibomana (Tender Bundle, 658).

1. However, after completing year ten the applicant decided to leave school when his girlfriend Penina fell pregnant and he needed to provide financial support to her and his son.12

1. He commenced work as a bottle washer in a hotel and did fruit-picking work. He rented a house and lived with his girlfriend and son. At this time, he began drinking heavily and using cannabis.

1. On 12 August 2010 the applicant drank heavily after his shift at the hotel. Despite being exceedingly drunk, he drove home. He mounted a round-about, drove on the wrong side of the road and collided with a stationary car before completing his journey home. At the time he only held a learner's permit.13 The matter was heard in the Coffs Harbour Local Court and the applicant was fined and he was disqualified from driving for 12 months.14

1. On 12 May 2011 the applicant again drove while under the influence of alcohol (twice the legal limit) and while disqualified.15 He was disqualified from driving for a further four years and fined.16

1. On 19 November 2011 the applicant assaulted his partner in the presence of their two children. The assault consisted of slapping her face and pinching her in circumstances where she had tried to hide with her children in another room in the house. The applicant resisted arrest and had to be forced into handcuffs by the police. He was drunk during the incident.17

1. Police took out an apprehended violence order.18

1. On 13 August 2013 the applicant drove a vehicle while under the influence of alcohol. When his blood alcohol level was checked it was almost 7 times the legal limit. While driving the applicant's vehicle mounted the curb and collided with a tree. The applicant then reversed

back onto the road and continued driving on the wrong side of the road without his headlights on. He then collided with a stationary vehicle. Witnesses detained the applicant at the scene.19

1. After the applicant was charged, he entered the MERIT program to address his problematic drinking. This was a residential program which he completed on 1 January 2014. He was encouraged to stay on, but he decided to leave as his wife was due to have a baby.20

1. The applicant reoffended on 14 January 2014 driving a vehicle while disqualified and was charged with negligent driving. He was driving with an alcohol concentration in his blood more than 4 times the legal limit. Again, the applicant drove onto the wrong side of the road mounted a kerb and collided with another stationary motor vehicle. Airbags deployed and the applicant suffered a head injury. He reversed the vehicle and attempted to continue driving but collided with a fence. He then exited the vehicle. He was arrested and admitted to having an argument with his partner about drinking alcohol again.21

1. On 17 March 2014 the applicant was sentenced to 18 months in prison commencing on 28 January 2014 with a non-parole period of six months.22

1. At this point his relationship with the mother of his children ended and she moved to Adelaide where her family lived.

1. On 13 March 2016 two of the applicant's sisters and his mother were at home. The applicant walked into the dining room angry at his sisters because they had not cooked anything. A verbal argument started. One of his sisters, who was seated, attempted to get up but the applicant pushed her down into the chair. She attempted to get up again so she could leave, and the applicant using one of his hands grabbed her around her neck, holding it extremely

tight so she couldn't move and could hardly breathe. The applicant's mother attempted to pull him off his sister. His sister then grabbed a pen in her right hand and attempted to stab him in his arm to get him to let go. The applicant squeezed his sister around her throat tighter. Eventually the applicant's mother pulled them apart. The applicant was still acting aggressively towards his sister. His sister then picked up a meat cleaver that was sitting on the table and chased the applicant out of the house. She called the police who attended a short time later. She stated that she feared for her safety due to the applicant's actions and stated he had been violent towards her on past occasions. Police applied for an apprehended violence order which was granted and served.23

1. When the applicant faced court on 12 August 2016 he was convicted of common assault (DV) and given a 12-month good behaviour bond.24

1. The incident with his sister persuaded the applicant that he needed to get help to address his relationship with alcohol.

1. He moved to the Gold Coast and sought out rehabilitation options. Initially he went to Fairhaven rehab. However, the applicant assessed it as located too close to the local RSL to be effective for him. He then entered the Transformation's Rehabilitation Program. The Transformations program was rigorous. Residents were required to be in the program for a minimum period of 12 months. David Read, a friend of the applicant who worked in the Transformation program for three months describes it in the following terms:

The Transformation Rehabilitation Program is a program that leaves no stone unturned with regards to residents facing their triggers and issues of abuse that lead them into drug addiction in the first place.

During my stay within the Transformation Program, Eric was one of the live in leaders.25

1. As a leader the applicant had responsibility for more than 20 men and their welfare. To become a live in leader within this program, individuals must have completed at least 12 months in the program and graduated from the program.

1. After 12 months as a participant in the program and then 12 months as a volunteer leader (he was dependent on welfare payments at this point) the applicant left the program. He worked as a maintenance man providing services to hotels on the Gold Coast. Between 2018 and 2020 the applicant worked with the United Hands of Hope charity. His duties included serving others, clean up, help with food preparation and overall management of every duty required.26

1. In this period, he would see his children (who at this point lived in Adelaide) once or twice a year during school holidays. He communicated with them regularly by telephone.

1. In 2019 he commenced a relationship with Yvonne.

1. At some point around 2020 things began to go wrong for the applicant. He resumed drinking alcohol. He did this by deceiving himself that he could control his consumption. He also began using harder drugs including methylamphetamine after being offered it by a friend and deciding to give it a try. The use of methamphetamine could have commenced as late as the start of 2022.

1. Despite his substance use the applicant managed to maintain a life that did not involve interactions with the police. He was renting a house and working as a maintenance man. He and Yvonne never formally moved in together but she spent up to four nights a week at his house. Yvonne established a hair dressing business, and they had a daughter together, [T] in July 2021.

1. It appears that Yvonne became aware of the applicant's substance abuse in the first half of 2022. The applicant did not know that she was aware of his problem and so was surprised when she broke off the relationship. From texts that are included in the tender bundle sent

from a public pay phone it is clear that by May 2022 Yvonne was not responding to messages sent by the applicant and the applicant was struggling to pay for food.27

1. He then began turning up randomly at Yvonne's place of work.28

1. Early in the morning of 4 July 2022, the applicant cut a lock on the door of the business and wrote in a white board marker on the front glass door of the business that he still cared for her and couldn't believe she was 'doing this to him'. He was inside the shop and was making a mess of it. He texted the applicant saying ' "IAM IM THE SHOP NO ONE COME WTH IAM WAITING THE L6NGER THE MORE DAMAGE (sic)'29

1. He also texted 'Never thought you could drive pass me after surgery and not give me a lift. Still care about you otherwise I would kick you OUT of My Building E.S (sic)'.

1. It appears that he left before Yvonne arrived for work.

1. Then on 6 July 2022 at 1:30 pm he turned up at the business asking Yvonne to open up the car. Yvonne reported to police that he was saying he wanted to get a machete from the car. The applicant gave evidence that he was asking to get a suitcase from the car. I prefer the contemporaneous account recorded by the police.30 The applicant then threatened to smash the window of the car to get it and pour water all over the floor forcing her to shut the business. She called the police when the applicant refused to leave.

1. The police record the following reported from Yvonne:

[Yvonne] did not allege any further domestic violence in their relationship however alleged that she has been told by the community that he becomes aggressive after drinking alcohol. Also that while together [the applicant] drove his car and caused damage to the vehicle and licence plates went missing.31

1. Police noted that Yvonne was supportive of a police protection notice and does not want the respondent to be able to come to her workplace or home address, further she does not want contact.32

1. The police also took a version of events from the applicant. It is a slightly incoherent version which may be the result of deliberate obfuscation or perhaps that the applicant was drug affected. It does however include some coherent details:

...the [applicant] stated that he wasn't sure as to why the relationship ended as the aggrieved just blocked him one day, he stated that he respected the aggrieved and her choices. Police believe the respondent holds on to hope that the relationship will spark again.

The [applicant] was questioned in relation to threatening to break the window of the car to which he stated that he asked the aggrieved to open it or call the police or he would have no choice.

The [applicant] was questioned about threatening to pour water on the floor of the business to which the [applicant] stated he threatened to pour water on the floor to tell her that she would have to close her business and call the police. He referred to taking the day off work and losing money, so he wanted her to help him.

The [applicant] stated that the aggrieved has currently cut off all communication with him, and allegedly blocking his number. The [applicant] currently has no phone, and stated that as they share a daughter, he must attend the aggrieves place to see her.

When the [applicant] advised the police of the knife and removal of it from the vehicle, he advised that he was happy for police to take it as he didn't want it to remain in the vehicle. Police searched the vehicle and no knife could be located.

Police believe that it is necessary and desirable to issue a police protection notice as the [applicant] and the aggrieved share a daughter together. The aggrieved stated that she was fearful of the respondent but was unable to articulate to police as to why. Police identified there may be cultural consideration in regards to coercive (sic) control within the relationship.

The aggrieved was supportive of the Police Protection Notice and held concerns that the [applicant] would collect their daughter, advice given in relation to family law court.

1. On 6 July 2022 a Police Protection Notice was issued and served on the applicant at the business premises in Woodridge. The protection order prevented him from attending either Yvonne's residence at Waterford West or the Woodridge premises.33

1. The applicant's evidence is that this order rendered him homeless although it is clear that police believe he had a separate residence.

1. I accept that the applicant did become homeless at around this time and it was potentially as a result of the police protection notice. The applicant gave evidence that around this time he quit his job.

1. On 12 July 2022 at 9:15 am police located the applicant inside the Woodbridge premises. He had sent a text the night before asking Yvonne 'Do you want me to hang myself'.34 He broke into the premises, and on his account to the Tribunal, slept there overnight because he was homeless.

1. The applicant was arrested for breaching the Police Protection Notice and for breaking and entering. He was transported to the watchhouse. He was found to be in possession of cannabis.

1. He was released the following day on bail on condition that he report to the Beenleigh Magistrates Court on 16 August 2022.35 He failed to report, and warrants were issued for his arrest.36

1. From this point, the applicant was wanted by police. He accumulated a very large number of shoplifting, stealing, trespassing and theft offences. In addition, he tried to evade arrest by police by running away from them in November 2022. When arrested he was in possession of methamphetamine and drug paraphernalia.37

1. He was bailed again in November 2022 and failed to report as required two weeks later. He continued to offend.38 In February 2023 he was arrested while in possession of heroin.39

1. He was released again and in May 2023 was arrested for stealing copper wire from premises in Brisbane. He was arrested shortly after having attempted to evade police by running away.40

1. The charges were heard on 20 September 2023. The applicant pleaded guilty to all the charges. By that stage the applicant had been in custody for 132 days.

1. The Magistrate sentenced the applicant to 12 months in prison for entering premises on 4 July 2022 and 2 months in prison for breach of the police protection notice. For entering premises with intent to commit domestic violence offences between 8 and 12 July 2022 the applicant received a sentence of 12 months. For possession of dangerous drugs (cannabis) on 12 July 2022 the applicant was given a sentence of 2 months. It is clear that the sentencing judge regarded the offending in this period as very serious. Regrettably he did not make any findings of fact prior to sentencing except in the most general terms. In the absence of these findings, I have accepted accounts recorded in the documents which are broadly consistent with the applicant's evidence about what occurred in July 2022.

1. The judge imposed a range of sentences for the litany of trespass, stealing, drug and obstructing police (by running away) offences all to be served concurrently with the longer sentences imposed. He was also granted parole with a release date of 20 September 2023, which meant that he was released immediately.

1. Upon release he was homeless. He immediately reoffended and was using methamphetamine upon release.41

1. On 31 December 2023 he was arrested for trespass, receiving tainted property, possession of dangerous drugs and unlawful possession of suspected stolen property and returned to

custody. He did not receive any additional sentence in relation to the charges. Convictions were recorded and the applicant was returned to prison to serve out his sentence.

1. His visa was cancelled on 25 June 2024. Shortly after, he was transferred from prison to immigration detention. He requested revocation of the visa cancellation on 1 July 2024.

1. On 14 August 2025 the applicant was advised of the delegate's decision not to revoke the cancellation. He applied for review by the tribunal on 19 August 2025.

1. On 1 December 2024 the applicant was involved in an incident in immigration detention. Staff discovered detainees drinking a 'home brew' alcoholic beverage. The applicant advised detention staff that it was his drink and was sharing it with friends.

1. There have been no other incidents while the applicant has been in immigration detention.

1. The applicant gave evidence that he has not used dangerous drugs since he has been in immigration detention.

1. If the applicant is released back into the community his plan is to live with his older brother Joseph in Coffs Harbour. His brother has confirmed that he has room in his house for him. The applicant is confident that because of his skills as a handyman he will get work doing maintenance for businesses.

Attempts to address his issues with substance abuse

1. The applicant has made the following attempts to address his substance abuse.

1. He completed three months in a residential program while on the MERIT program. He left the program early to go back to Coffs Harbour, as his partner was due to have a baby. He soon reoffended and was placed in custody. He was then removed from the MERIT program. The pre-sentencing report prepared in 2014 noted it would seem he was in need of a longer-term program

1. I have described his more successful attempts at rehabilitation at Transformations in paragraphs [47] to [49] above.
2. He undertook courses in first aid and occupational health and safety while in prison.

1. The applicant has also been undertaking counselling with QPASTT. QPASTT stands for the Queensland Program of Assistance to Survivors of Torture and Trauma. It is a specialist rehabilitation service providing assessment and counselling to survivors of torture and refugee trauma. Mr Sibomana commenced counselling in September 2024 and has attended 10 sessions of counselling on a weekly basis. This counselling has focused on the management of trauma-related symptoms in the context of current life stressors. Therapeutic interventions provided by the counsellor have included trauma-informed supportive counselling, processing adverse life events, psychoeducation, and focused psychological strategies to manage predominant symptoms of distress

1. He has also undertaken the Circuit Breaker course with Smart Recovery Australia.

1. It is clear that after the applicant moved to the Gold Coast around 2018 his contact with his immediate family was limited. He saw his older children during school holidays and kept in touch with them but had limited contact with his mother and siblings. For a period, the applicant cut off all contact with them and it appeared to them at one point that he was dead. They did however take steps to find him and are supportive of the applicant returning to Coffs Harbour if released.

1. I am satisfied that the applicant has an aunt living in Burundi. He may also have a brother there. He speaks several languages including English, French, Swahili and Kirundi. As the applicant describes it, in Burundi, French is the language of education, Swahili is the language of business and Kirundi is the language of his social group.

1. The applicant has diagnosed post-traumatic stress disorder as well as depression and anxiety.42 He is in good physical health.

42 Letter from QPSAAT dated 2 October 2025 (Tender Bundle, 661).

1. I also make further findings of fact in the course of analysing the relevant considerations.

1. When examining this consideration, I am required to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are and have been law abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community.

• The nature and seriousness of the applicant's conduct to date; and

• The risk to the Australian community, should the applicant commit further offences or engage in other serious conduct.

1. In considering the nature and seriousness of the conduct there are factors to which I must have regard specified in paragraphs 8.1.1(1)(a)-(h) of the Direction. I apply these factors as follows.

1. I must have regard to the fact that the Australian government and the Australian community view violent crimes and acts of family violence very seriously. The inherent nature of conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not revoking a visa cancellation when such behaviour is present. In this context I assess the applicant's crimes and conduct as including crimes and behaviour that should be treated as 'very serious'. However, in my assessment, the conduct that should be assessed as 'very serious' was last engaged in in 2016.
2. The applicant's worst crimes all were committed in the window between 2010 and 2016. I regard the family violence offences perpetrated on his partner and sister as very serious. In the family violence incident involving the applicant's partner, she felt the need to barricade herself in the children's room. This establishes that she was fearful even before the applicant had physically assaulted her. The subsequent assault on her is behaviour that is rightfully condemned by the Australian community. Similarly, the applicant's choking of his sister required the intervention of family members to break up. This is a second example of family violence, and the victim was clearly fearful, to the point that she grabbed a knife to defend herself and then called the police.

1. The applicant's driving offences are also very serious. As he acknowledges, he could have easily killed someone in any one of the four incidents of driving while under the influence of drugs or alcohol.

1. I view the applicant's more recent offending very differently. The property and trespass offences are numerous, but not especially serious. His obstructing police offences are also at the lower end of that kind of offending. They did not involve any violence directed towards police. His failure to report as required were offences driven by homelessness and drug addiction.

1. In relation to the conduct engaged in between 4 and 12 July 2022, I am not satisfied that it constituted family violence as that term is defined in the Direction. I reach this conclusion notwithstanding how it was characterised for the purposes of charge and sentencing.

1. When the specific facts are looked at the behaviour engaged in by the applicant at his former partner's work premises probably meets the description of 'threatening' in the sense that the applicant made threats to damage the premises or throw water on the floor. However, the evidence that the conduct caused the family member to be fearful is weak. The victim was not called to give evidence on the point and the police recording of their encounter with her is that she could not explain why she was fearful. There are no threats of harm in any of the texts and there was no history of violence in the relationship.

1. The police speculated that it may be a cultural coercive control issue. Before I would make such a finding some evidence would be required given that such a finding has powerful adverse consequences for the applicant.
2. There is however no doubt that the applicant broke into premises that a police protection order prohibited him from attending. In circumstances where the applicant was homeless the behaviour is understandable if not excusable.

1. As I am not satisfied that the behaviour meets the definition of family violence in the Direction, my assessment of its seriousness can be made unaffected by such a finding. I am satisfied that the criminal conduct is serious (as demonstrated by the sentence handed down) but not so serious that any risk of it being repeated would be unacceptable. Everything that followed was petty crime driven by homelessness and drug addiction.

1. The applicant has had significant custodial sentences imposed in relation to his crimes. An 18-month sentence for his driving and first family violence offences and an effective twelve-month sentence for his offences from July 2022. The custodial sentencing shows the seriousness of the offences.

1. The applicant's offending has never resulted in serious injury to anyone. In relation to his driving offences that is purely by good luck. In relation to the violence against his sister that is because others intervened. In relation to Yvonne, the relationship never involved physical violence although she was aware that the applicant had been violent in the past. In relation to his first partner, the applicant was violent towards her but there is no evidence that she suffered injuries as a result.

1. There is no trend of increasing seriousness in the offending. The trend is in the opposite direction. There is no evidence of any physical violence perpetrated by the applicant after 2016. Even the applicant's most recent incidents of obstructing police take the form of running away rather than resisting arrest. The pattern is one of rapidly increasing frequency of petty crime but a steep decline in seriousness.

1. There is no evidence that the applicant has ever provided false or misleading information to the Department.

1. The applicant has never been given a warning as to his immigration status.

1. There is no evidence to suggest that the applicant ever committed an offence in another country.

The risk should the non-citizen commit further offences

1. In considering the need to protect the Australian community, I must 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 that it may be repeated may be unacceptable.

1. In assessing the risk to the community, I have had regard to the factors identified in paragraph 8.1.2(2) of the Direction. I must have regard to the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct and the likelihood of the non-citizen engaging in further criminal conduct, taking into account the applicant's risk of reoffending and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence. My analysis is as follows.

1. The harm to others should the applicant engage in further conduct of a criminal or serious nature includes assaults on family members, particularly women, death or maiming as a result of a traffic accident or loss of property due to theft.

1. I am satisfied that the risk of the applicant engaging in further criminal or serious conduct should be assessed as moderate if petty crime is included in that assessment but low if crimes involving physical violence are assessed.

1. The driver of the applicant's criminal offending is drug and alcohol addiction. In his time in the community commencing some time in 2022, the applicant has used dangerous and addictive drugs like methamphetamine and heroin regularly. He appears to have abstained during periods of incarceration but has been unable to sustain any extended period of

abstinence while in the community. When he was released on parole on 20 September 2023 he was back using by 28 September 2023.43

1. It appears that he has not used hard drugs since being incarcerated in January 2024. Whether he can sustain that on release has not been tested in the community. While in immigration detention it appears that he has avoided any use of methamphetamine. He has however used alcohol and drank a home brew in December 2024, less than 12 months ago.44

1. The applicant says that this is an isolated incident, which I am prepared to accept. This means that the applicant has not used for almost 10 months which gives some basis for optimism. When the applicant is released, he will not be homeless, and he will return to a place where he has significant family support.

1. However, there is no guarantee that the applicant will stay with his family long term. His past conduct indicates that his natural preference is to put distance between himself and his family even when he is doing well. He never reached out to his family for help when he was homeless and there must be some residual tension after his attack on his sister.

1. Given these factors I consider that there is a moderate risk that the applicant will return to drug and alcohol use. That carries with it the risk that he will further commit further drug and property offences. There has been no association between the applicant's drinking and drug use and use of a motor vehicle since 2014. I assess the risk of conduct of this nature as low.

1. I assess the risk of physical violence as very low. The applicant has not engaged in physically violent conduct for almost a decade and that propensity appears to be under control even when the applicant is using drugs and engaging with police.

1. If the applicant returns to drug use, I am almost certain he will return to property crime. I consider the risk of him returning to drug use to be moderate.

1. This consideration weighs against the applicant having his visa cancellation revoked.

1. The applicant has committed acts of family violence on multiple occasions.

This consideration is relevant in circumstances where:

• 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

• 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...has been afforded procedural fairness.

1. In relation to family violence, the applicant's relevant conduct consists of the 2011 attack on his partner and the 2016 attack on his sister. For reasons already explained I am not satisfied that any of his criminal offending in July 2022 meets the definition of family violence in the Direction.

1. In considering the factors in paragraph 8.2(3) of the Direction I note:

• The frequency of family violence has declined significantly from 2016. There have been no incidents in the last nine years;

• The cumulative effect of the family violence against the two victims has created distress in multiple family relationships;

• In terms of crimes of this nature the applicant shows substantial signs of rehabilitation. There is evidence that the applicant is now very much more in control. He has not committed family violence against anyone since 2016 and his last intimate relationship did not involve any physical violence;

• The applicant re-offended after his first conviction for family violence but has not committed an act of family violence since.

1. This consideration weighs against revoking the applicant's visa.

Strength, Nature and Duration of Ties to Australia

1. The applicant has lived in Australia since 2005. He has not left Australia since his arrival. He has many family members living in Australia. Including:

1. The applicant also has friends who he has made in Australia through churches and charities that he has been involved in.

1. The strongest ties though are family. These however have varied significantly over the years. When the applicant lived in Coffs Harbour he was living with his partner and his children and had contact with his mother and siblings. He was employed and coached a soccer team involving his nephews. By 2022 the applicant saw very little of his children or his former partner and seems to have broken off contact with his family almost entirely. For an extended period after 2022 the applicant's family were unsure whether he was alive or dead.

1. He has however maintained contact with his children with Penina. His son William lived with the applicant's mother at one point, and lived the applicant for some period.
2. The applicant has had no contact with Yvonne since 12 July 2022, nor has he seen his daughter [T] since that date.

1. His hopes for future work involve him setting up his own business, which suggests that his work contacts are limited.

1. The applicant has had at various times contact with a church and a charity.

1. This consideration weighs strongly in favour of revoking the visa cancellation.

1. I must determine whether revocation of the cancellation is or is not in the best interests of a minor child affected by the decision. The following minor children are affected by the decision:

1. There appear to be 10 minor children affected by the decision. The applicant was unsure of the exact number of nieces and nephews that he had.
2. Under the Direction, I am obliged to give each child's interests individual consideration to the extent that they may differ. In this case the interests of some groups of minor children are sufficiently close that I can deal with them together.

1. In considering the best interests of minor children, specific factors must be considered if they are relevant. My consideration of the relevant factors is as follows. I begin my consideration with the applicant's children from his first relationship.

1. Penina's children are aged 15 and 11. They are the applicant's biological children.

1. The applicant has not lived with them since their mother moved back to Adelaide in around 2015.

1. The applicant maintained contact with them after that through school holiday visits and phone calls, however he lost contact with them when his life fell apart in 2022. Regular contact resumed when the applicant was placed in immigration detention. He now speaks to them regularly over the phone.

1. The applicant is the parent of both children but he has not been closely involved in the parenting of the children for over a decade. If the applicant lives in Coffs Harbour and does not abuse drugs or alcohol there is a prospect that he will be able to fulfill some of his responsibilities as a father. Contact is likely be limited to short periods of in person contact and contact by electronic means.

Impact of prior conduct and likely future conduct

1. The applicant assaulted his partner in front of the children. That conduct was however a long time ago. There is no evidence that the applicant's behaviour in front of the children has involved violence since Penina returned to Adelaide. The applicant did however admit

to being drug affected in front of his children and there is a chance this may happen again. It may have an adverse impact on the children.

The effect of separation

1. The applicant's children have lived separately from him for an extended period and there have been periods of no contact at all.

1. If the applicant were deported, I am confident that there would be some contact by electronic means but further physical affection would be unlikely. Opportunities for physical affection have however been extremely limited for the last decade.

1. The children's mother fulfills the parental role.

Risk of exposure to family violence or other neglect

1. It is unlikely that the children would be exposed to family violence or neglect if the applicant remained in Australia. The applicant's history of family violence is in the distant past.

1. There is no reason to think that the children suffered any trauma as a result of witnessing the applicant assaulting their mother. During the only recorded assault [E] was a newborn and [A] had not yet been born. I am satisfied that the children have not experienced trauma as a result of their interactions with the applicant.

1. Given the role that the applicant now plays in the children's lives, I am satisfied that it would be in their best interests for him to remain in Australia.

1. The applicant has not seen [T] since the Police Protection Order was taken out in July 2022 when she was less than one year old. He is not in contact with her or her mother.

1. [T] is the applicant's biological daughter who is now four years old.

1. The applicant is [T]'s father. The applicant has indicated that he hopes to have more involvement in the future and will seek to put in place a shared custody arrangement if he is released into the community. Given that the applicant will be living in Coffs Harbour, periodic contact is the most likely outcome.

Impact of prior conduct and likely future conduct

1. It is unlikely that any of the applicant's prior conduct had an adverse impact on [T]. There is no reason to believe the applicant would behave inappropriately towards [T] however the applicant did admit to being drug affected in her presence and this may occur again in the future. This could have an adverse impact on [T].

1. The applicant has been separated from [T] for more than three years. There is however a prospect that the applicant will begin seeing her again if he is released into the community. If the applicant is removed to Burundi, there is only a limited chance that he will be in the same place as her ever again. As the applicant has been separated from Yvonne for an extended period already, the effect of separation as a result of a decision not to restore the applicant's visa will be less than if he had had ongoing personal contact with [T]. It is however a significant step to separate a child permanently from their father and there are likely to be some adverse effects for [T] from doing so.

Risk of exposure to family violence or other neglect

1. It is very unlikely that [T] would be exposed to family violence or neglect if the applicant remained in Australia. The applicant has indicated that any attempt to resume the relationship with [T] would be done through proper channels.

1. I am satisfied that [T] has not experienced trauma as a result of her interactions with the applicant.

1. Given that there is some prospect of the applicant taking on a greater role in [T]'s life, I am satisfied that it would be in her best interests for the applicant to remain in Australia.

1. [Te] is the daughter of Yvonne from another relationship. The evidence in relation to her is sparse but the applicant did give evidence that when he was going out with Yvonne, [Te] was around. As the applicant's relationship was between 2019 and 2022 it is likely that the applicant had significant contact with [Te].

1. The applicant is not [Te]'s parent. That role is fulfilled by her mother. Given the long applicant's long absence from [Te]'s life and the fact that he is not her biological father he will not have a positive parental role in the future.

Impact of prior conduct and likely future conduct

1. There has been no evidence of any adverse impact on [Te] as a result of any past conduct by the applicant nor do I consider it likely that there will be adverse impact as a result of any future conduct.

1. Given that the applicant has not played a role in or contacted [Te] for many years it is unlikely that there will be any effect on [Te] from any separation.

Risk of exposure to family violence or other neglect

1. There is no reason to think that [Te] would be exposed to family violence or other neglect if the applicant remains in Australia.

1. There is no reason to think that [Te] has experienced trauma as a result of her interactions with the applicant.

1. I am satisfied that it would be in [Te]'s best interests for the applicant to remain in Australia.

1. The applicant has a significant number of nieces and nephews in Australia. There is insufficient evidence for me to be able to assess whether it would be in their best interests

for the applicant to remain in Australia. In the absence of any clear evidence, I have proceeded on the basis that it is in their best interests for the applicant to remain here and if the applicant returns to Coffs Harbour, there will be an increase in the contact he has with those children.

1. As the applicant is the father of three minor children in Australia, I am satisfied that this consideration weighs in favour of the applicant. However, given the weak relationships the applicant has with his own children and the other minor children to which he has connections, it does not weigh very strongly in favour of revoking the visa cancellation.

1. As the Direction makes clear, 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, the Australian community, as a norm, expects the Government not to allow such a non-citizen to remain in Australia. As a person who has committed very serious crimes, violent crimes and crimes against women, the applicant has not met that expectation.

1. The Direction goes on to say that non-revocation of visa cancellation may be appropriate simply because the nature of the offences are such that the Australian community would expect that the person should not continue to hold a visa. The nature of the applicant's crimes does not fall into that category but some of them are very serious nonetheless.

1. These expectations apply regardless of whether the non-citizen poses a measurable risk of causing harm to the Australian community.

1. This consideration weighs strongly in favour of not revoking the cancellation. The applicant's breaches of the law are sufficiently serious that the expectation of the community is that he would not be allowed to stay in Australia.

1. The respondent submitted as follows in relation to this consideration.

• Under paragraph 9.1(1) of direction 110, decision makers are directed to 'be mindful' that unlawful non-citizens are liable to removal from Australia as soon as practicable, and in the meantime, to detention. The Tribunal should therefore take these legal consequences into account. The Direction then contains different guidance for decision-makers depending on whether an applicant is covered by a protection finding. The applicant is not covered by a protection finding. As such, the relevant provision is paragraph 9.1.2 of Direction 110.

• The applicant claims to fear returning to Burundi due to ongoing conflict and genocide.

• The applicant is able to make a valid application for a protection visa, which is relevant because an adverse decision of the Tribunal will not necessarily result in his removal to Burundi. The applicant would not be liable for removal whilst a valid protection visa application was being determined (paragraph 9.1(2) of Direction 110).

• Direction 110 recognises that it may not be possible at the s 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The Direction provides that the process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act.

• On 11 May 2022, the High Court delivered judgment in Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 ('Plaintiff M1'). The majority (Kiefel CJ, Keane, Gordon and Steward JJ) held at [9] that, in deciding whether there was another reason to revoke the mandatory cancellation of the applicant's visa pursuant to s 501CA(4)(b)(ii) of the Act where the applicant was able to lodge an application for a protection visa:

(i) The delegate was required to read, identify, understand and evaluate the representations made in response to the invitation issued to the applicant

under s 501CA(3)(b) that raised a potential breach of Australia's international non-refoulement obligations.

(ii) Australia's international non-refoulement obligations unenacted in Australia were not a mandatory relevant consideration; and

(iii) To the extent Australia's international non-refoulement obligations are given effect in the Act, one available outcome for the delegate was to defer assessment of whether the applicant was owed those non-refoulement obligations on the basis that it was open to the applicant to apply for a protection visa under the Act.

• The judgment of the majority of the High Court supports the Minister's submission that the Tribunal is entitled to defer assessment of whether the applicant is owed non-refoulement obligations on the basis that it is open for him to apply for a protection visa.

• The majority in Plaintiff M1 also explained that where the cancelled visa is not a protection visa, and a decision-maker defers assessment of whether non-refoulement obligations are owed to permit a former visa holder to avail themselves of the protection visa procedures provided for in the Act, it nevertheless may be necessary for the decision-maker to take account of the alleged facts underpinning that claim where those facts are relied upon by a former visa holder in support of there being 'another reason' why the cancellation decision should be revoked. The principle emerging from the judgment above have now been applied by the Federal Court in decisions made by the Tribunal affirming delegate non-revocation decisions.

• The Minister accepts that the applicant's claims have the potential to engage Australia's non-refoulement obligations. However, the question of whether the applicant engages Australia's non-refoulement obligations should be deferred since the applicant is able to apply for a protection visa and have his claims considered in a more fulsome manner. If the Tribunal finds that this consideration weighs in favour of revocation, the Minister contends that it should only be given limited weight and is not sufficiently compelling to outweigh the primary considerations weighing heavily against revocations.

1. I accept that that is the appropriate way to approach this consideration.
2. The applicant has made clear that he has grave fears for his safety and welfare if he is returned to Burundi. He is not very specific about the basis for that concern. His father was killed in civil strife in Burundi and the evidence indicates that his mother was at risk in the refugee camp in Tanzania. Whether any of these matters will be sufficient for the applicant to establish that Australia owes him a non-refoulement obligation could not be determined on the information presently available. In these circumstances the preferable course is to proceed on the basis that if the applicant has valid claims, they can be determined in the context of a protection visa application. The question of whether the visa cancellation should be revoked though will be determined on the basis that the applicant will be returned to Burundi if the visa cancellation is not revoked. Proceeding on this basis is favourable to the applicant because it allows significant weight to be given to the 'extent of impediments' consideration on the basis that a return to Burundi is the likely result of any decision adverse to the applicant.

1. I also take into account as a relevant other consideration that the applicant has profound and legitimate fear of returning to Burundi as a place that is unsafe, that is prone to civil strife and a place where he did experience traumatic events.

1. I am obliged to consider the extent of any impediments that the applicant may face if removed from Australia and sent to Burundi, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of Burundi), taking into account:
   • The non-citizen's age and health;

• Whether there are substantial language or cultural barriers; and

• Any social, medical and/or economic support available to him in that country.

1. The applicant is a citizen of Burundi but has spent limited time there. He suggested that he had spent no time in Burundi, but I am satisfied on the basis of his mother's evidence that he was born in Rwanda in 1989 but spent a few years in Burundi in the early 1990s after the family returned there. However, the applicant was quite young, probably around five when the family fled to Tanzania. He has not lived or visited Burundi since.
2. I am satisfied that there are no substantial language or cultural barriers which the applicant will experience living in Burundi. He lived there for a few years as a boy and so he will have some familiarity with the society and how it functions. He speaks French, Swahili and Kirundi all of which are useful languages in Burundi.

1. He has at least an aunt who lives in Burundi who may be able to assist him to adapt to life there.

1. Burundi however is a very poor country. Its per capita GDP was $309 in 2019. By comparison, Australia's in the same year was $54,972. It has low unemployment.45 It seems unlikely that it has much in the way of social welfare or healthcare.

1. The applicant is physically well and has useful skills that allowed him to work as a maintenance man in Australia. He is capable of working and the low unemployment in Burundi suggests he should be able to obtain employment.

1. The applicant has PTSD and anxiety and depression. He is seeing a psychologist to deal with this but is not presently on any medication. It is unlikely that the applicant will get any mental health support in Burundi and the environment will be very mentally taxing for him. Based on his history there appears to be a significant risk that the applicant will self-medicate with alcohol but there is limited evidence on this.

1. This consideration weighs very strongly in favour of revoking the visa cancellation.

1. Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under sections 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

1. This consideration is neutral. There is no evidence relevant to this consideration before me apart from the fact that the applicant has in the past and intends in the future to run a small maintenance business. The impact on Australian business interests is negligible.

1. I have considered the applicant's legitimate fear for his own safety as a result of returning to Burundi as a consideration that weighs in favour of revoking the visa cancellation.

1. Informed by the principles in paragraph 5.2 of the Direction, I have taken into account the considerations identified in sections 8 and 9 of the Direction which are relevant to this decision.

1. The following considerations weigh in favour of a decision to refuse to revoke the cancellation of the applicant's visa:
   • Protection of the Australian community from criminal or other serious conduct;

• Whether the conduct constituted family violence;

1. The following considerations weigh in favour of revoking the cancellation of the applicant's visa:
   • The strength, nature and duration of the applicant's ties to Australia;

• The extent of impediments to the applicant establishing basic living standards if he is removed to Burundi.

1. The legal consequences of the decision consideration cannot be discerned at this point in time, however, consistent with the High Court's view that it may be necessary for the decision-maker to take account of alleged facts underpinning a claim where those facts are relied upon by a former visa holder in support of there being 'another reason' why the

cancellation decision should be revoked, I have considered that the applicant quite legitimately regards Burundi as unsafe and as a place where his long term survival is far from guaranteed.46

1. The impact on Australian business interests consideration is neutral.

1. In general, protection of the Australian community should be given greater weight than other primary considerations. In terms of community safety, the convictions of greatest concern are the applicant's drunk driving convictions which stem from incidents where community members could have been killed. However, there have been no incidents since 2014 where the applicant drove a vehicle while affected by alcohol or drugs. While the applicant is still struggling to get on top of his alcohol use, it is many years since he combined alcohol use with the use of a motor vehicle. The fact that the applicant is returning to Coffs Harbour and will be assisted by his family, reassures me in the view that there is a very low prospect of the applicant repeating the behaviour that landed him in prison in 2014.

1. I also assess the risk the applicant poses to a family member or an intimate partner in the future as very low. He has not been physically violent towards a family member since 2016 and his most recent relationship did not involve any physical violence nor threats of physical violence. His behaviour in July 2022 was obnoxious and involved threats but the evidence of it causing subjective fearfulness was weak and as a consequence I have not classified it as family violence as defined in the Direction.

1. The ongoing risk that is created by the applicant's possible abuse of drugs and alcohol in the future and likely associated crime means that the most important criterion weighs against the applicant.

1. The applicant has committed family violence and particularly in relation to his sister that violence was very serious. It has been ten years since that incident, but this consideration still weighs against him, as do the expectations of the Australian community.

1. The applicant's ties to Australia are strong. The applicant has been here for 20 years. His ties to Burundi by comparison are very weak. This criterion weighs strongly in his favour.

1. I am satisfied that it would be in the best interests of all the minor children that the applicant has identified in his documentation were he to remain in Australia. However, his weak and intermittent relationships with his biological children mean that the consideration does not weigh strongly in favour of revocation of the visa cancellation.

1. I am satisfied that a return to Burundi for the applicant will be very hard and he will struggle to establish basic living standards but it may not be impossible with the assistance of his family there. He has at least one living relative there and the fact that he speaks the language will assist. Burundi is however a poor and dangerous place. Consequently, this factor weighs very strongly in favour of revoking the cancellation.

1. Given that the applicant's most serious crimes are close to ten years old and that he was a positive contributor to society for almost six years between March 2016 and early 2022, I am satisfied that with the assistance of his family in Coffs Harbour there are very good prospects that the applicant will become a positive contributor to the Australian community. Even if he were to relapse, the kinds of crimes that he is likely to commit in my assessment are not so serious, and the risks to the Australian community not so grave, that they warrant separating him permanently from his children and returning him to a place where he will be confronted by very difficult living conditions including significant risks to his personal safety.

1. When I weigh the considerations in this way I am satisfied that there is another reason to revoke the applicant's visa cancellation.

Dates of hearing: 23 and 24 October 2025 Applicant's representative: Self-represented Respondent's Solicitor: Sparke Helmore